Union Square Station
Malone
2/6

Reagan's Two Terrible Mistakes

Ronald Reagan turns 90 today. If that seems remarkable, given that he's been overrun with Alzheimer's Disease since 1994, when he left public life, it's also quite daunting to recall that he had surgery for colon cancer nearly 16 years ago and came close to dying from a gunshot wound 20 years ago. 

Add in the stress of eight years as President of the United States and the earlier eight as Governor of California during much Left Coast turbulence, and one can safely conclude that whatever the ravages of age have done to him at 90, Reagan is one tough SOB.

Plenty of people are out singing Reagan's praises in recent days, so I'll take off in another direction. Reagan will get his due accolades elsewhere, and I'll stipulate that he deserves all of it and more. Not to sour the party, but because both Reagan's fulminating critics and his adoring fans maintain strict rules against objectivity, I'd like to take note of two of Reagan's mistakes. They were terrible mistakes precisely because it was Reagan who made them.

The first of the two mistakes was the nomination of Robert Bork to the Supreme Court. I like Bork as a person, but he has a fundamental misunderstanding of what the Constitution of the United States is and therefore what certain parts of it mean. Because it was Reagan who nominated him to the Court, Bork became a martyr for conservatives when he was ceremoniously vilified beyond recognition by unprincipled liberals who were not capable themselves of getting to the nub of why Bork should not have been confirmed.

That nub is Bork's assertion that no right to privacy can be found in the Constitution. Now, there are two things about that contention that demonstrate how off-kilter Bork's understanding of the Constitution is. Taking the lesser of the two first, the Bill of Rights makes clear reference to the most essential matters of privacy. That includes the fundamental right to freedom of conscience and belief found in the First Amendment, which is predicated on the private nature of one's mind. The Third Amendment speaks to the privacy of one's home; the Fourth Amendment to the inviolability of one's own person, home, and property; the Fifth Amendment to the privacy of conscience and property.

But the second and more basic point about Bork's essential misunderstanding of the Constitution is this: there is no need to find a right to privacy in the Constitution for privacy to be a right that any free person can lay claim to. The Ninth Amendment was added to make clear this very point, that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." It's not a popular amendment with jurists, the Ninth, but there it is glaring back ominously at the first eight.

What the Ninth Amendment only serves to emphasize is that neither the Bill of Rights nor the Constitution grant rights to people. Rather, the Constitution prohibits the government from infringing the rights that people hold by nature, those "certain inalienable rights" with which people are endowed. You won't find a right to life or a right to self-defense explicitly stated in the Constitution either. Is there any doubt that they are both more basic than any of the rights spelled out in the Bill of Rights?

For Bork to have misunderstood something this fundamental was to misunderstand the very most essential thing about America itself.

Yes, I know approximately how Bork got to this point in his thinking (I'm not going to go into here), and his intentions seem honorable. But honorable intent doesn't mean he should have been confirmed, and doesn't mean that Reagan should have nominated him. It was a terrible mistake, and the essence of the mistake was lost on liberals and conservatives both. The bottom line -- that he was ultimately rejected -- remains tainted by the lack of clarity regarding exactly why he needed to be rejected.

Reagan's second big mistake was his failure to draw clear lines of legality when the Iran-Contra scandal broke. It was at this point where he needed to have precise Constitutional minds making sure that the public knew that the Iran-Contra scheme itself broke no laws, even if some of the personalities involved had lied to Congress about it. The lying to Congress was illegal. The scheme to sell arms to Iran was not. Nor was it illegal to make use of a private enterprise to make the sale, make a profit on it, and use part of that profit to fund the Contras in Nicaragua.

Why wasn't the scheme itself illegal? It wasn't illegal because the President is the sole organ of foreign policy. That is an issue of separation of powers settled by the Supreme Court 60 years ago. The President makes the foreign policy of the United States in its most basic form. It is true that treaties need to be ratified by the Senate, but they are not negotiated by the Senate, and treaties only demark a formal arrangement between or among nations. And the other side of that coin is that treaties can be abrogated at the prerogative of the President, and the Senate has no say. It is politically difficult for a President to abrogate a treaty, but it remains his power to do so.

Iran-Contra was a not untypical covert operation run out of the National Security Council which is part of the Executive Office of the President, and was similar in many respects to any number of operations that came to pass throughout the Cold War. It's peculiarity is that it was a scheme to get money to the Contras that did not come from the U.S. Treasury, which is controlled by Congress. It was, in that sense, pure foreign policy. And whether Reagan approved of the scheme or not, he had a responsibility to make the proper Constitutional case for it.

How the entire Iran-Contra affair got to the point it did is a much longer story, in which the Democrats in Congress, frankly, come off looking much worse than Reagan's White House. All of the ranting about the so-called "Boland Amendment" was done in such a way that the cacophony demanded that Reagan have his team step forward and make clear the powers that belonged to the White House and the powers that belonged to Congress. Reagan never did that in an effective way, and never properly stood behind the principles involved, and the result is that Iran-Contra became a chant for people who wanted it to be something far more grievous than it was.

One can argue over whether Iran-Contra was bad policy or good policy executed badly, but the most serious mistake of all was not arguing the correct issues regarding separation of powers. 

It is true that with both Bork and Iran-Contra the fundamental principles at stake were clouded by confusing technical overtones, and Reagan himself was at his best painting on a big canvas. But in both cases Reagan allowed matters to be institutionalized wrongly in popular history by his friends and his enemies, respectively. No serious assessment of Reagan could conclude that he believed Americans had no basic right to privacy, or that he would argue against the essential power of the President to make foreign policy. He was, after all, both a man who cherished and guarded his own privacy and a President who wrote the last chapter of the 20th Century with his foreign policy.

When one stops to reflect on what Reagan accomplished, an unconfirmed Supreme Court nominee and a confusing Cold War covert operation shrink to relative insignificance, yet both live on to cloud Reagan's legacy because the Gipper never straightened them out. If his friends want to give Reagan a birthday present, they'll get busy in earnest to make the record clear on both.

Neither Robert Bork's misunderstanding of America nor the bad popular history of Iran-Contra should be left draped as they are over Reagan's legacy. 

© Union Square Journal 2001

Previously by Malone...

The Return of the Hero (01/19/01)

The Hero of Chappaquiddick (01/11/01)

Real Millennium Strange (01/03/01)

Smoke 'em if you got 'em (12/21/00)

Union Square Station (12/11/00)

Union Square Station (12/3 back to 11/24/00)