But philosophy is a science that deals with the broadest abstractions and, therefore, many people do not know how to observe its influence in practice or how to grasp the process by which it affects the conditions of their daily life. A recent event, however, offers a clear, striking illustration of that process. It shows philosophy’s influence in action, and reveals the essence (and the contradictions) of both the conservative and the liberal ideologies. This event is the decision of the Supreme Court in five recent “obscenity” cases.

In [The Ayn Rand Letter] of November 20, 1972, I expressed hope in regard to the four men appointed to the Supreme Court by President Nixon, even though it was too early to tell the exact nature of their views. “But,” I said, “if they live up to their enormous responsibility, we may forgive Mr. Nixon a great many of his defaults: the Supreme Court is the last remnant of a philosophical influence in this country.” Today, less than a year later, the evidence is sufficient to indicate that there are no intellectual grounds left for forgiving Mr. Nixon.

Since inconsistent premises lead to inconsistent actions, it is not impossible that the present Supreme Court may make some liberating decisions. For instance, the Court made a great contribution to justice and to the protection of individual rights when it legalized abortion. I am not in agreement with all of the reasoning given in that decision, but I am in enthusiastic agreement with the result—i.e., with the recognition of a woman’s right to her own body. But the Court’s decision in regard to obscenity takes an opposite stand: it denies a man’s (or a woman’s) right to the exercise of his own mind—by establishing the legal and intellectual base of censorship.

Before proceeding to discuss that decision, I want to state, for the record, my own view of what is called “hard-core” pornography. I regard it as unspeakably disgusting. I have not read any of the books or seen any of the current movies belonging to that category, and I do not intend ever to read or see them. The descriptions provided in legal cases, as well as the “modern” touches in “soft-core” productions, are sufficient grounds on which to form an opinion. The reason of my opinion is the opposite of the usual one: I do not regard sex as evil—I regard it as good, as one of the most important aspects of human life, too important to be made the subject of public anatomical display. But the issue here is not one’s view of sex. The issue is freedom of speech and of the press—i.e., the right to hold any view and to express it.

It is not very inspiring to fight for the freedom of the purveyors of pornography or their customers. But in the transition to statism, every infringement of human rights has begun with the suppression of a given right’s least attractive practitioners. In this case, the disgusting nature of the offenders makes it a good test of one’s loyalty to a principle.

In the five “obscenity” cases decided on June 21, 1973, the Court was divided five to four. In each case, the majority opinion was written by Chief Justice Burger, joined by Justices Blackmun, Powell, Rehnquist (all four appointed by Nixon) and Justice White (appointed by Kennedy); in each case, the dissenting opinion was written by Justice Brennan, joined by Justices Stewart and Marshall; Justice Douglas, in each case, wrote a separate dissenting opinion. The two most important cases are Miller v. California and Paris Adult Theater I v. Slaton.

The Miller case involves a man who was convicted in California of mailing unsolicited, sexually explicit material, which advertised pornographic books. It is in the Miller decision that Chief Justice Burger promulgated the new criteria for judging whether a given work is obscene or not. They are as follows:

“The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

These criteria are based on previous Supreme Court decisions, particularly on Roth v. United States, 1957. Nine years later, in the case of Memoirs v. Massachusetts, 1966, the Supreme Court introduced a new criterion: “A book cannot be proscribed unless it is found to be utterly without redeeming social value.” This was bad enough, but the present decision emphatically rejects that particular notion and substitutes a horrendous criterion of its own: “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Morally, this criterion, as well as the rest of Chief Justice Burger’s decision, taken as a whole, is a proclamation of collectivism—not so much political as specifically moral collectivism. The intellectual standard which is here set up to rule an individual’s mind—to prescribe what an individual may write, publish, read or see—is the judgment of an average person applying community standards. Why? No reason is given—which means that the will of the collective is here taken for granted as the source, justification and criterion of value judgments.

What is a community? No definition is given—it may, therefore, be a state, a city, a neighborhood, or just the block you live on. What are community standards ? No definition is given. In fact, the standards of a community, when and if they can be observed as such, as distinguished from the standards of its individual citizens, are a product of chance, lethargy, hypocrisy, second-handedness, indifference, fear, the manipulations of local busybodies or small-time power-lusters—and, occasionally, the traditional acceptance of some decent values inherited from some great mind of the past. But the great mind is now to be outlawed by the ruling of the Supreme Court.

Who is the average person? No definition is given. There is some indication that the term, in this context, means a person who is neither particularly susceptible or sensitive nor totally insensitive in regard to sex. But to find a sexually average person is a more preposterously impossible undertaking than to find the average representative of any other human characteristic—and, besides, this is not what the Court decision says. It says simply “average”—which, in an issue of judgment, means intellectually average: average in intelligence, in ability, in ideas, in feelings, in tastes, which means: a conformist or a nonentity. Any proposition concerned with establishing a human “average” necessarily eliminates the top and the bottom, i.e., the best and the worst. Thus the standards of a genius and the standards of a moron are automatically eliminated, suppressed or prohibited—and both are ordered to subordinate their own views to those of the average. Why is the average person to be granted so awesome a privilege? By reason of the fact that he possesses no special distinction. Nothing can justify such a notion, except the theory of collectivism, which is itself unjustifiable.

The Court’s decision asserts repeatedly—just asserts—that this ruling applies only to hard-core pornography or obscenity, i.e., to certain ideas dealing with sex, not to any other kinds of ideas. Other kinds of ideas—it keeps asserting—are protected by the First Amendment, but ideas dealing with sex are not. Apart from the impossibility of drawing a line between these two categories (which we shall discuss later), this distinction is contradicted and invalidated right in the text of this same decision: the trial judges and juries are empowered to determine whether a work that contains sexual elements “lacks serious literary, artistic, political, or scientific value.”

This means—and can mean nothing else—that the government is empowered to judge literary, artistic, political, and scientific values, and to permit or suppress certain works accordingly.

The alleged limits on that power, the conditions of when, where and by whom it may be exercised, are of no significance—once the principle that the government holds such a power has been established. The rest is only a matter of details—and of time. The present Supreme Court may seek to suppress only sexual materials; on the same basis (the will of the community), a future Court may suppress “undesirable” scientific discussions; still another Court may suppress political discussions (and a year later all discussions in all fields would be suppressed). The law functions by a process of deriving logical consequences from established precedents.

The “average person’s community standards” criterion, was set up in the Roth case. But the Roth criterion, of “utterly without redeeming social value” was too vague to be immediately dangerous—anything may be claimed to have some sort of “social value.” So, logically, on the basis of that precedent, the present Court took the next step toward censorship. It gave to the government the power of entry into four specific intellectual fields, with the power to judge whether the values of works in these fields are serious or not.

“Serious” is an unserious standard. Who is to determine what is serious, to whom, and by what criterion? Since no definition is given, one must assume that the criterion to apply is the only one promulgated in those guidelines: what the average person would find serious. Do you care to contemplate the spectacle of the average person as the ultimate authority—the censor—in the field of literature? In the field of art? In the field of politics? In the field of science? An authority whose edict is to be imposed by force and is to determine what will be permitted or suppressed in all these fields? I submit that no pornographic movie can be as morally obscene as a prospect of this kind.

No first-rate talent in any of those fields will ever be willing to work by the intellectual standards and under the orders of any authority, even if it were an authority composed of the best brains in the world (who would not accept the job), let alone an authority consisting of “average persons.” And the greater the talent, the less the willingness.

As to those who would be willing, observe the moral irony of the fact that they do exist today in large numbers and are generally despised: they are the hacks, the box-office chasers, who try to please what they think are the tastes—and the standards—of the public, for the sake of making money. Apparently, intellectual prostitution is evil, if done for a “selfish” motive—but noble, if accepted in selfless service to the “moral purity” of the community.

In another of the five “obscenity” cases (U.S. v. 12 200-Ft. Reels of Super 8mm. Film), but in a totally different context, Chief Justice Burger himself describes the danger created by the logical implications of a precedent: “The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth or fifth ‘logical’ extension occurs. Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance. This kind of gestative propensity calls for the ‘line drawing’ familiar in the judicial, as in the legislative process: ‘thus far but not beyond.’ ”

I would argue that since a legal rule is a principle, the development of its logical consequences cannot be cut off, except by repealing the principle. But assuming that such a cutoff were possible, no line of any sort is drawn in the Miller decision: the community standards of average persons are explicitly declared to be a sovereign power over sexual matters and over the works that deal with sexual matters.

In the same Miller decision, Chief Justice Burger admits that no such line can be drawn. “Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable ‘national standards’ when attempting to determine whether certain materials are obscene as a matter of fact.” He quotes Chief Justice Warren saying in an earlier case: “I believe that there is no provable ‘national standard.’ . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.”

By what means are local courts to divine a local one? Actually, the only provable standard of what constitutes obscenity would be an objective standard, philosophically proved and valid for all men. Such a standard cannot be defined or enforced in terms of law: it would require the formulation of an entire philosophic system; but even this would not grant anyone the right to enforce that standard on others. When the Court, however, speaks of a “provable national standard,” it does not mean an objective standard; it substitutes the collective for the objective, and seeks to enunciate a standard held by all the average persons of the nation. Since even a guess at such a concept is patently impossible, the Court concludes that what is impossible (and improper) nationally, is permissible locally—and, in effect, passes the buck to state legislatures, granting them the power to enforce arbitrary (unprovable) local standards.

Chief Justice Burger’s arguments, in the Miller decision, are not very persuasive. “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” I read the First Amendment as not requiring any person anywhere to accept any depiction he does not wish to read or see, but forbidding him to abridge the rights and freedom of those who do wish to read or see it.

In another argument against a national standard of what constitutes obscenity, the decision declares: “People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.” What about the absolutism of imposed uniformity within a state? What about the non-conformists in that state? What about communication between citizens of different states? What about the freedom of a national marketplace of ideas? No answers are given.

The following argument, offered in a footnote, is unworthy of a serious tribunal: “The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States . . . ‘It is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. . . .’ ” In a criminal case, the jury’s duty is only to determine whether a particular defendant committed the crime which is clearly and specifically defined by the statute. Under the new “obscenity” ruling, a jury is expected to determine whether the defendent committed an undefined crime and, simultaneously, to determine what that crime is.

Thus the Nixon Court’s notion of censorship-sharing by diffusing it at random over the entire country, is as illusory as Nixon’s notion of returning power to the states by means of revenue-sharing. While the public rides on the creaking train of local censorship, with delays, derailments and chaos at every whistle stop— the express of statism is flying full speed on an unobstructed track.

Four of the Justices who handed down the Miller decision are regarded as conservatives; the fifth, Justice White, is regarded as middle-of-the-road. On the other hand, Justice Douglas is the most liberal or the most leftward-leaning member of the Court. Yet his dissent in the Miller case is an impassioned cry of protest and indignation. He rejects the notion that the First Amendment allows an implied exception in the case of obscenity. “I do not think it does and my views on the issue have been stated over and over again.” He declares: “Obscenity—which even we cannot define with precision—is a hodge-podge. To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.”

What about the antitrust laws, which are responsible for precisely this kind of monstrous thing? Justice Douglas does not mention them—but antitrust, as we shall see later, is a chicken that comes home to roost on both sides of this issue.

On the subject of censorship, however, Justice Douglas is eloquently consistent: “The idea that the First Amendment permits punishment for ideas that are ‘offensive’ to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to ‘offensive’ as well as to ‘staid’ people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard ‘offensive’ gives authority to government that cuts the very vitals out of the First Amendment. As is intimated by the Court’s opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV or over the radio. By reason of the First Amendment—and solely because of it—speakers and publishers have not been threatened or subdued because their thoughts and ideas may be ‘offensive’ to some.”

I can only say “Amen” to this statement.

Observe that such issues as the individual against the State are never mentioned in the Supreme Court’s majority decision. It is Justice Douglas, the arch-liberal, who defends individual rights. It is the conservatives who speak as if the individual did not exist, as if the unit of social concern were the collective—the “community.”

A profound commitment to moral collectivism does not occur in a vacuum, as a causeless primary: it requires an epistemological foundation. The Supreme Court’s majority decision in the case of Paris Adult Theater I v. Slaton reveals that foundation.

This case involves two movie theaters in Atlanta, Georgia, which exhibited allegedly obscene films, admitting only adults. The local trial court ruled that this was constitutionally permissible, but the Georgia Supreme Court reversed the decision—on the grounds that hard-core pornography is not protected by the First Amendment. Thus the issue before the U.S. Supreme Court was whether it is constitutional to abridge the freedom of consenting adults. The Court’s majority decision said: “Yes.”

Epistemologically, this decision is a proclamation of non-objectivity: it supports and defends explicitly the most evil of social phenomena: non-objective law.

The decision, written by Chief Justice Burger, declares: “we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity . . . These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.” (Emphasis added.) Try to find a single issue or action that would be exempt from this kind of “legitimate” state interest.

Quoting a book by Professor Bickel, the decision declares: “A man may be entitled to read an obscene book in his room . . . But if he demands a right to obtain the books and pictures he wants in the market . . . then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies . . . what is commonly read and seen and heard and done intrudes upon us all, want it or not.” Which human activity would be exempt from a declaration of this kind? And what advocate of a totalitarian dictatorship would not endorse that declaration?

Mr. Burger concedes that “there is no scientific data which conclusively demonstrates that exposure to obscene materials adversely affects men and women or their society.” But he rejects this as an argument against the suppression of such materials. And there follows an avalanche of statements and of quotations from earlier Court decisions—all claiming (in terms broader than the issue of pornography) that scientific knowledge and conclusive proof are not required as a basis for legislation, that the State has the right to enact laws on the grounds of what does or might exist.

“Scientific data” (in the proper, literal sense of these words) means knowledge of reality, reached by a process of reason; and “conclusive demonstration” means that the content of a given proposition is proved to be a fact of reality. It is reason and reality that are here being removed as a limitation on the power of the State. It is the right to legislate on the basis of any assumption, any hypothesis, any guess, any feeling, any whim—on any grounds or none—that is here being conferred on the government.

“We do not demand of legislatures ‘scientifically certain criteria of legislation,’ ” the decision affirms. “Although there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect ‘the social interest in order and morality.’ ”

If the notion that something might be a threat to the “social interest” is sufficient to justify suppression, then the Nazi or the Soviet dictatorship is justified in exterminating anyone who, in its belief, might be a threat to the “social interest” of the Nazi or the Soviet “community.”

Whatever theory of government such a notion represents, it is not the theory of America’s Founding Fathers. Strangely enough, Chief Justice Burger seems to be aware of it, because he proceeds to call on a pre-American precedent. “From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs.”

This is preeminently true—and look at the results. Look at the history of all the governments in the world prior to the birth of the United States. Ours was the first government based on and strictly limited by a written document—the Constitution—which specifically forbids it to violate individual rights or to act on whim. The history of the atrocities perpetrated by all the other kinds of governments—unrestricted governments acting on unprovable assumptions—demonstrates the value and validity of the original political theory on which this country was built. Yet here is the Supreme Court citing all those bloody millennia of tyranny, as a precedent for us to follow.

If this seems inexplicable, the very next sentence of Mr. Burger’s decision gives a clue to the reasons—and a violently clear demonstration of the role of precedent in the development of law. That next sentence seems to unleash a whirling storm of feathers, as chickens come flying home from every direction to roost on everyone’s coop, perch or fence—in retribution for every evasion, compromise, injustice, and violation of rights perpetrated in past decades.

That next sentence is: “The same [a basis of unprovable assumptions] is true of the federal securities, antitrust laws and a host of other federal regulations.”

Formally, I would have to say: “Oh, Mr. Chief Justice!” Informally, I want to say: “Oh, brother!”

“On the basis of these assumptions,” Mr. Burger goes on, “both Congress and state legislatures have, for example, drastically restricted associational rights by adopting antitrust laws, and have strictly regulated public expression by issuers of and dealers in securities, profit sharing ‘coupons,’ and ‘trading stamps,’ commanding what they must and may not publish and announce. . . . Understandably those who entertain an absolutist view of the First Amendment find it uncomfortable to explain why rights of association, speech, and press should be severely restrained in the marketplace of goods and money, but not in the marketplace of pornography.”

On the collectivist premise, there is, of course, no answer. The only answer, in today’s situation, is to check that premise and reject it—and start repealing all those catastrophically destructive violations of individual rights and of the Constitution. But this is not what the Court majority has decided. Forgetting his own warning about the “gestative propensity” of the judicial and legislative processes, Chief Justice Burger accepts the precedent as an irrevocable absolute and pushes the country many steps further toward the abyss of statism.

“Likewise,” the decision continues, “when legislatures and administrators act to protect the physical environment from pollution and to preserve our resources of forests, streams and parks, they must act on such imponderables as the impact of a new highway near or through an existing park or wilderness area. . . . Thus the Federal-Aid Highway Act of 1968 . . . and the Department of Transportation Act of 1966 . . . have been described by Mr. Justice Black as ‘a solemn determination of the highest law-making body of this Nation that beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, fact-findings, and policy determinations under the supervision of a Cabinet officer. . . .’ The fact that a congressional directive reflects unprovable assumptions about what is good for the people, including imponderable aesthetic assumptions, is not a sufficient reason to find that statute unconstitutional.”

Isn’t it? If it is not, then the imponderable aesthetic assumptions of government officials are entitled to invade the field of literature and art—as Mr. Burger’s decision is inviting them to do.

The ugly hand of altruism slithers into the decision, in a passage that sideswipes the concept of free will. “We have just noted, for example, that neither the First Amendment nor ‘free will’ precludes States from having ‘blue sky’ laws to regulate what sellers of securities may write or publish about their wares. . . . Such laws are to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition.” It is for this kind of purpose that the rest of us—who are not weak, uninformed, unsuspecting, and gullible—are to be protected from our volition and deprived of the right to exercise it. So much for the relation of altruism to rights and to freedom.

Here is another chicken flying home: “States are told by some that they must await a ‘laissez-faire’ market solution to the obscenity-pornography problem, paradoxically ‘by people who have never otherwise had a kind word to say for laissez-faire,’ particularly in solving urban, commercial, and environmental pollution problems.”

The decision contains many other homing chickens of this kind—an entire barnyard of them—many more than I have space to quote. But these are sufficient to give you the nature, style and spirit of that ruling.

In his dissenting opinion, Justice Brennan, joined by Justice Stewart and Marshall, offers some good arguments to support the conclusion that censorship in regard to consenting adults is unconstitutional. But he wavers, hesitates to go that far, and tries to compromise, to strike “a better balance between the guarantee of free expression and the States’ legitimate interests.”

He concedes the notion that obscene material is not protected by the First Amendment, but expresses an anxious concern over the Court’s failure to draw a clear line between protected and unprotected speech. He cites the chaotic, contradictory record of the Court’s decisions in “obscenity” cases, but sidesteps the issue by saying, in a footnote: “Whether or not a class of ‘obscene’ and thus entirely unprotected speech does exist, I am forced to conclude that the class is incapable of definition with sufficient clarity to withstand attack on vagueness grounds. Accordingly, it is on principles of the void-for-vagueness doctrine that this opinion exclusively relies.”

Justice Brennan speaks eloquently about the danger of vague laws, and quotes Chief Justice Warren, who said that “the constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” But Justice Brennan does not mention the antitrust laws, which do just that. He states: “The resulting level of uncertainty is utterly intolerable, not alone because it makes ‘bookselling . . . a hazardous profession,’ . . . but as well because it invites arbitrary and erratic enforcement of the law.” He deplores the fact that “obscenity” judgments are now made on “a case-by-case, sight-by-sight” basis. He observes that the Court has been struggling “to fend off legislative attempts ‘to pass to the courts—and ultimately to the Supreme Court—the awesome task of making case by case at once the criminal and the constitutional law.’ ” But he does not mention the living hell of antitrust, the grim monument to law made case by case.

However, a greater respect for principles and a greater understanding of their consequences are revealed in Justice Brennan’s dissenting opinion than in the majority decision. He declares that on the basis of that majority decision: “it is hard to see how state-ordered regimentation of our minds can ever be forestalled. For if a State may, in an effort to maintain or create a particular moral tone, prescribe what its citizens cannot read or cannot see, then it would seem to follow that in pursuit of that same objective a State could decree that its citizens must read certain books or must view certain films.”

The best statement, however, is made again by Justice Douglas, who ends his forceful dissent with the words: “But our society—unlike most in the world—presupposes that freedom and liberty are in a frame of reference that make the individual, not government, the keeper of his tastes, beliefs, and ideas. That is the philosophy of the First Amendment; and it is the article of faith that sets us apart from most nations in the world.”

I concur—except that it is not an “article of faith,” but a provable, rational conviction.

In the life of a nation, the law plays the same role as a decision-making process of thought does in the life of an individual. An individual makes decisions by applying his basic premises to a specific choice—premises which he can change, but seldom does. The basic premises of a nation’s laws are set by its dominant political philosophy and implemented by the courts, whose task is to determine the application of broad principles to specific cases; in this task, the equivalent of basic premises is precedent, which can be challenged, but seldom is.

How far a loosely worded piece of legislation can go in the role of precedent, is horrifyingly demonstrated by the Supreme Court’s majority decision in another one of the five “obscenity” cases, U.S. v. Orito. This case involves a man charged with knowingly transporting obscene material by common carrier in interstate commerce.

The clause giving Congress the power to regulate interstate commerce is one of the major errors in the Constitution. That clause, more than any other, was the crack in the Constitution’s foundation, the entering wedge of statism, which permitted the gradual establishment of the welfare state. But I would venture to say that the framers of the Constitution could not have conceived of what that clause has now become. If, in writing it, one of their goals was to facilitate the flow of trade and prevent the establishment of trade barriers among the states, that clause has reached the opposite destination. You may now expect fifty different frontiers inside this country, with customs officials searching your luggage and pockets for books or magazines permitted in one state but prohibited in another.

Chief Justice Burger’s decision declares, quoting an earlier Court decision: “The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control.” Such an interpretation means that legislative judgment is given an absolute power, beyond the restraint of any principle, beyond the reach of any checks or balances. This is an outrageous instance of context-dropping: the Constitution, taken as a whole, is a fundamental restriction on the power of the government, whether in the legislative or in any other branch.

“It is sufficient to reiterate,” Mr. Burger declares, “the well-settled principle that Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral or economic nature.” As if this were not clear enough, a footnote is added: “Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people of other states from the state of origin.” Immorality, evil and harm—by what standard?

The only rights which the five majority decisions leave you are the right to read and see what you wish in your own room, but not outside it—and the right to think whatever you please in the privacy of your own mind. But this is a right which even a totalitarian dictatorship is unable to suppress. (You are free to think in Soviet Russia, but not to act on your thinking.) Again, Justice Douglas’s dissent is the only voice raised in desperate protest: “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.”

The division between the conservative and the liberal viewpoints in the opinions of the Supreme Court, is sharper and clearer than in less solemn writings or in purely political debates. By the nature of its task, the Supreme Court has to and does become the voice of philosophy.

The necessity to deal with principles makes the members of the Supreme Court seem archetypical of the ideas—almost, of the soul—of the two political camps they represent. They were not chosen as archetypes: in the undefined, indeterminate, contradictory chaos of political views loosely labeled “conservative” and “liberal,” it would be impossible to choose an essential characteristic or a typical representative. Yet, as one reads the Supreme Court’s opinions, the essential premises stand out with an oddly bright, revealing clarity—and one grasps that under all the lesser differences and inconsistencies of their followers, these are the basic premises of one political camp or of the other. It is almost as if one were seeing not these antagonists’ philosophy, but their sense of life.

The subject of the five “obscenity” cases was not obscenity as such—which is a marginal and inconsequential matter—but a much deeper issue: the sexual aspect of man’s life. Sex is not a separate nor a purely physical attribute of man’s character: it involves a complex integration of all his fundamental values. So it is not astonishing that cases dealing with sex (even in its ugliest manifestations) would involve the influence of all the branches of philosophy. We have seen the influence of ethics, epistemology, politics, esthetics (this last as the immediate victim of the debate). What about the fifth branch of philosophy, the basic one, the fundamental of the science of fundamentals: metaphysics? Its influence is revealed in—and explains—the inner contradictions of each camp. The metaphysical issue is their view of man’s nature.

Both camps hold the same premise—the mind-body dichotomy—but choose opposite sides of this lethal fallacy.

The conservatives want freedom to act in the material realm; they tend to oppose government control of production, of industry, of trade, of business, of physical goods, of material wealth. But they advocate government control of man’s spirit, i.e., man’s consciousness; they advocate the State’s right to impose censorship, to determine moral values, to create and enforce a governmental establishment of morality, to rule the intellect. The liberals want freedom to act in the spiritual realm; they oppose censorship, they oppose government control of ideas, of the arts, of the press, of education (note their concern with “academic freedom”). But they advocate government control of material production, of business, of employment, of wages, of profits, of all physical property—they advocate it all the way down to total expropriation.

The conservatives see man as a body freely roaming the earth, building sand piles or factories—with an electronic computer inside his skull, controlled from Washington. The liberals see man as a soul freewheeling to the farthest reaches of the universe—but wearing chains from nose to toes when he crosses the street to buy a loaf of bread.

Yet it is the conservatives who are predominantly religionists, who proclaim the superiority of the soul over the body, who represent what I call the “mystics of spirit.” And it is the liberals who are predominantly materialists, who regard man as an aggregate of meat, and who represent what I call the “mystics of muscle.”

This is merely a paradox, not a contradiction: each camp wants to control the realm it regards as metaphysically important; each grants freedom only to the activities it despises. Observe that the conservatives insult and demean the rich or those who succeed in material production, regarding them as morally inferior—and that the liberals treat ideas as a cynical con game. “Control,” to both camps, means the power to rule by physical force. Neither camp holds freedom as a value. The conservatives want to rule man’s consciousness; the liberals, his body.

On that premise, neither camp has permitted itself to observe that force is a killer in both realms. The conservatives, frozen in their mystic dogmas, are paralyzed, terrified and impotent in the realm of ideas. The liberals, waiting for the unearned, are paralyzed, terrified and, frequently, incompetent in or hostile to the realm of material production (observe the ecology crusade).

Why do both camps cling to blind faith in the power of physical force? I quote from Atlas Shrugged: “Do you observe what human faculty that doctrine [the mind-body dichotomy] was designed to destroy? It was man’s mind that had to be negated in order to make him fall apart.” Both camps, conservatives and liberals alike, are united in their hatred of man’s mind—i.e., of reason. The conservatives reject reason in favor of faith; the liberals, in favor of emotions. The conservatives are either lethargically indifferent to intellectual issues, or actively anti-intellectual. The liberals are smarter in this respect: they use intellectual weapons to destroy and negate the intellect (they call it “to redefine”). When men reject reason, they have no means left for dealing with one another—except brute, physical force.

I quote from Atlas Shrugged: “. . . the men you call materialists and spiritualists are only two halves of the same dissected human, forever seeking completion, but seeking it by swinging from the destruction of the flesh to the destruction of the soul and vice versa . . . seeking any refuge against reality, any form of escape from the mind.” Since the two camps are only two sides of the same coin—the same counterfeit coin—they are now moving closer and closer together. Observe the fundamental similarity of their philosophical views: in metaphysics—the mind-body dichotomy; in epistemology—irrationalism; in ethics—altruism; in politics—statism.

The conservatives used to claim that they were loyal to tradition—while the liberals boasted of being “progressive.” But observe that it is Chief Justice Burger, a conservative, who propounds a militant collectivism, and formulates general principles that stretch the power of the State way beyond the issue of pornography—and it is Justice Douglas, a liberal, who invokes “the traditions of a free society” and pleads for “our constitutional heritage.”

If someone had said in 1890 that antitrust laws for the businessmen would, sooner or later, lead to censorship for the intellectuals, no one would have believed it. You can see it today. When Chief Justice Burger declares to the liberals that they cannot explain why rights “should be severely restrained in the marketplace of goods and money, but not in the marketplace of pornography,” I am tempted to feel that it serves them right—except that all of us are the victims.

If this censorship ruling is not revoked, the next step will be more explicit: it will replace the words “marketplace of pornography” with the words “marketplace of ideas.” This will serve as a precedent for the liberals, enabling them to determine which ideas they wish to suppress—in the name of the “social interest”—when their turn comes. No one can win a contest of this kind—except the State.

I do not know how the conservative members of the Supreme Court can bear to look at the Jefferson Memorial in Washington, where his words are engraved in marble: “I have sworn . . . eternal hostility to every form of tyranny over the mind of man.”

Permit me to add without presumptuousness: “So have I.”