If Heart Is Gone, Can Bork Save the Soul?

President Reagan’s address to the nation signaled an intent to make the U.S. Supreme Court the captain of his political agenda.

It further presaged a reduction in defense spending by emphasizing the importance of a balanced budget. The Soviet Union will temporize on arms-control proposals to exploit the reduction while continuing to deploy new weapons systems like the 10-warhead mobile intercontinental SS-24. For the tableaux of 1988’s presidential aspirants, Reagan’s speech exhibited an intellectual vacuum readily filled by any soundly conceived and well-articulated principles for governing domestic affairs and international relations.

It speaks volumes that the President placed the confirmation of Judge Robert H. Bork to the Supreme Court at the apex of his remaining agenda. He excluded many other domestic issues, except a balanced-budget amendment subject to problematic interpretation by the Supreme Court. Abortion, church-state relations, affirmative action, the death penalty, drug testing and drug trafficking were all omitted. These issues earlier were the heart of Reagan’s social and civil-rights agenda that elicited ardent and politically active support from conservatives.

By such omission the President confessed that he would not put his “heart” or his “energies” behind these issues for the remainder of his term. He is relying on Bork’s appointment to refashion constitutional jurisprudence and political discourse regarding social, civil-rights and criminal-justice matters to satisfy his conservative backers. That is what makes the Senate confirmation vote on Bork so pivotal to the Reagan legacy.

The Supreme Court is equally central to Reagan’s promised advocacy of an “economic bill of rights” for citizens and a balanced budget. The President insisted that “only the Constitution” can compel responsible political action to halt the nation’s “massive, runaway budget.” But as former Chief Justice Charles Evans Hughes acknowledged, although “we are under a Constitution . . . the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.”

A balanced-budget amendment would thus make the Supreme Court the ultimate arbiter over the nation’s fiscal, taxing and spending policies. These issues are so politically contentious that any loser in the legislative forum would invariably seek a second hearing in the courts.

Judges are similarly the backbone of any meaningful economic bill of rights. The Founding Fathers animadverted against mutable, heavy-handed economic regulations befitting particular political factions because of the consequent damper on investment and productivity. As James Madison explained in Federalist 62: “What prudent merchant will hazard his fortune in any new branch of commerce when he knows but not that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government?”

An economic bill of rights will attain strength only if the Supreme Court strictly embraces the Constitution’s twin injunctions against the taking of property by government or statutes that impair contractual obligations. The court’s narrow 5-4 June decision in Nollan vs. California Coastal Commission displayed a receptivity to the restoring of constitutional dignity to property rights, and Bork’s appointment is crucial to reinforcing this embryonic trend.

The President’s hosanna of prospective arms-control treaties with the Soviet Union will not survive his equally fervent trumpeting of a balanced budget. The latter would require slashing defense spending, including funds for the Strategic Defense Initiative, the MX missile and other advanced weapons technologies. That is why, exhorted by Secretary of Defense Caspar W. Weinberger, Reagan stands aloof from the Gramm-Rudman balanced-budget mandate that would require a declining deficit target to be met by equal cuts from domestic and defense programs.

Watching the balanced-budget controversy from Moscow, Soviet leader Mikhail S. Gorbachev will procrastinate on any treaty agreements for several years until the United States is negotiating from a position of weakness. There will be no genuine arms-control accord for the remainder of the Reagan presidency.

The President has forgotten that politics is the art of public education, because in a democracy, as he said, “one way or another, the will of the people always prevails.” His speech was politically empty, because it was not calculated to persuade. Any current or would-be presidential candidate will find the political playing field intellectually unoccupied by the incumbent through Election Day in 1988. The nation’s ear is listening for sober, enlightened and penetrating ideas that an erstwhile Reagan once offered.