By Sen. Barry Goldwater, Republican Candidate For President
September 11, 1964
Your science is responsible for discovering a psychological principle that is almost as important as the discovery of the wheel, so far as politics is concerned.
You call it selective perception. I've always thought of it as filtered listening. People, by and large, let only those things with which they agree get past their filters.
According to some of your learned works—and this is very bad for the ego of a politician—a great many people make up their minds about candidates even before the conventions open.
Then, during the campaign, which is supposed to be a solemn debate, they turn on the filters and hear only those arguments which bolster their previous conviction.
Finding an open-minded audience to hear a discussion of fundamental issues poses a real problem. That's why I was so delighted to accept your invitation. I know that you understand this business of selective perception. I know that you will turn off your filters. You can always blame anything you don't like, on static from the transmitter.
Seriously, the fundamental question I ask you ladies and gentlemen to examine with me is where the two major parties—and their spokesmen—stand now, today, in regard to their understanding of the nature of political freedom.
The tradition handed down to us by the founding fathers, was a tradition of legitimacy combined with limited government.
The Philadelphia convention gave us a government by the consent of the governed, but it gave us something more—it gave us a system of checks and balances. It divided the powers of government both between the nation and the states, on the one hand, and among the executive, the legislature, and the judiciary, on the other. The divisions were not designed primarily to promote efficiency. On the contrary, as Justice Brandeis pointed out, they guarantee a certain amount of inefficiency.
Yet, today, we hear pleas for new and concentrated "power to govern". Those who seek this concentration of power, apparently reject the idea that the surest guarantee of individual freedom is the absence of concentration of power, either within or without the government.
We hear praise of a power-wielding arm-twisting President who "gets his program through Congress" by knowing the use of power.
Let me remind you that there have been other such wielders of power. There have been dictators who regularly held plebiscites, in which their dictatorships were approved by an ivory-soap-like percentage of the electorate. But their countries were not free, nor can any country remain free under such despotic power.
Some of the current worship of powerful executives may come from those who admire strength and accomplishment of any sort. Others hail the display of Presidential strength, or judicial strength, as the case may be, simply because they approve of the result reached by the use of power.
This is nothing less than the totalitarian philosophy that the end justifies the means; or, put in culinary terms, that you have to break some eggs to make an omelette. If ever there was a philosophy of government which was totally at war with that of the founding fathers, it is this one.
To a constitutionalist, it is at least as important that the use of power be legitimate as that it be beneficial.
This principle doesn't receive headlines nowadays, but I believe that any of you, ladies and gentlemen who ignore this as a fundamental issue in this election are missing the whole point of political science in the real and present world of today.
To me, the political heroes of this nation are not the men who have indiscriminately used power to gain their ends—whether those ends were selfish or unselfish. The real heroes are those who refrained from power when they doubted the legitimacy of its exercise. These are the constitutionalists. These are the Apostles of legitimacy.
One of the best known examples of this sort of political heroism is that of the Republican senators who despised Andrew Johnson and his program, but nonetheless voted to acquit him in his impeachment trial. The strongman philosopher would have said that if you believed that Andrew Johnson was a bad President it didn't make much difference whether you really thought he was guilty. But Fessenden of Maine, Trumbull of Illinois, Ross of Kansas and many others felt that the illegitimate use of the power of impeachment could not be justified by a desirable end.
Those Democratic senators who, in 1937, voted to recommit Franklin Roosevelt's court-packing plan, even though they violently disagreed with the decisions of the "nine old men," are also my kind of political heroes. They thought it more important to preserve the triparty system of government than to accomplish a more immediate political end. This we might term the exercise of legislative restraint.
Until recent years the Supreme Court itself has exercised the same sort of restraint, judicial restraint, with respect to acts of Congress with which it disagreed but which were founded on legitimate exercise of legislative power.
But not the Supreme Court of today! I weigh my words carefully when I say that—of all three branches of government—today's Supreme Court is the least faithful to the constitutional tradition of limited government, and to the principle of legitimacy in the exercise of power.
Let me mention only two leading examples of its recent decisions—both of which the Republican Platform of 1964 is committed to overturn by constitutional amendment—the so-called school prayer cases, and the so-called reapportionment cases.
I suppose, since I am not a lawyer, that I should leave the analysis of the merits of the court's decisions in these cases to the constitutional lawyers.
Yet, just as it has been observed that war is too important a business to be left to the generals, so I feel that constitutional law is too important a business to be left to the constitutional lawyers.
At any rate, as I understand it, there has been only the most half-hearted effort, either within or without the court, to justify these decisions on the basis that they were within the intent of the framers of the 14th Amendment to the Constitution.
Instead, the decisions are defended, implicitly or explicitly, on the grounds that the results are desirable: That is isn't really good for children to say prayers in school, and that it really is desirable to have state legislatures in their entirety apportioned on a one man, one vote basis. Now there is raw and naked power.
The question, under our system of government, is not simply what decision is right—but who has the right to decide! Only when the latter question is answered should the former be considered.
Yet we hear it said by political scientists, by lawyers—yes, even by that exalted class known as the "opinion makers"—that the Supreme Court had to act because the states wouldn't reapportion themselves, or because the school boards just weren't being fair to the atheists.
If this is true, then it must be that all legislative power in the country is held at the pleasure of the Supreme Court. The Court just steps in and exercises it when the legislative body, to whom the power was originally delegated by the Constitution, fails to act in accordance with the Court's wishes.
I do not doubt for one minute that law must keep up with the changing times. But the job of keeping the law up to date should be in the hands of the legislatures, the Congress, and the common law courts, not just in the hands of the nine appointed justices of the Supreme Court.
Perhaps the constitutional restrictions on the popular branches of government aren't enough to protect the right of minorities and individuals. If this is the case, the remedy is to change the restrictions by the normal process of amendment, rather than by the process of judicial revision of the Constitution.
It is easy to slide into the belief that just because we are a great nation today, we will always be great. Anyone who thinks that our greatness stems from the power wielded by government officials has misread the history of our institutions.
If we exalt a "strong executive" or a "strong judiciary" —or, indeed, a "strong legislature" —at the expense of the checks and balances of Federalism, and the principle of legitimacy in government, we travel away from greatness as a nation. We will no longer be a true constitutional republic, or even a truly representative government.
No member of Congress felt more strongly than I that the discrimination against which the bill was directed was wrong. But I did not feel that I had an unrestricted right to employ the federal government to legislate my moral convictions.
The Constitution is capable of almost unlimited flexibility. We can say of it what Winston Churchill once said of the true statesman, that the only way it can remain consistent amidst changing circumstances is to change with them, while preserving the same dominating purpose.
But the trend of constitutional interpretation under the influence of the prevailing Democratic Party doctrine, has been such that the Constitution is now widely held to mean only what those who hold power for the moment choose to say that it means.
They ask us to believe that all we have to consider when examining a proposed piece of legislation, is whether it is desirable. According to this doctrine, anything that is desirable is by that very fact, constitutional.
What the proponents of this doctrine seem never to ask themselves is, what of liberty? What will this legislation do to that balance of power between states and nation, which is the genius of the entire system?
They do not consider that legislation, otherwise desirable, becomes undesirable, when it violates the principle upon which our whole federal form of government depends.
"E Pluribus Unum" is not only our motto but should be our guide.
For the union is a union only so long as the states are states. Federal power, indefinitely extended to any limit that a temporary majority in control of the central government may wish, crushes the concurrent powers of the states in one field after another, until the states have no will, and finally no resources, moral or financial, of their own.
Let us be clearer than we have been, in this country in these recent years: That the concentration of all the powers of government, in the same hands, either by the breakdown of the separation of powers, or by the breakdown of the lines separating states from nations, will mean a breakdown of liberty.
I urge upon you the thought that the very magnitude of our accomplishments in the nine score years of our nation may breed impatience with our imperfections. But we must strive with the awareness that our Federal system is not an antiquated hobble to be cast off when it appears to slow or stop some immediate reform.
On the contrary. The Federal system is itself our great political achievement. It is the very foundation of our greatness yesterday, today, and tomorrow.