It is something of a shock for one who knows nothing about philanthropy, but is only a grateful recipient of it, to find himself speaking to experts in the field. When Jim Pierson first asked me to speak about the parallels between the interpretation of the Constitution and the interpretation of donors’ intentions, I was frankly dubious. Perhaps there were no such parallels. In which case, there would be a considerable lull in the proceedings after I was introduced. It was reassuring, therefore, to discover that Jim’s insight was accurate.
The similarities between constitutional and philanthropic interpretation exist, of course, only where the donor has either expressed intentions or has engaged in activities during his life that give a tolerably clear idea of what things he intended or, at least, some things he certainly did not intend. When these indicators exist, there are clear similarities between law and philanthropy.
In both fields, there is the question of the legitimacy of power. In both, men and women make decisions that affect the lives of many others. What standards should guide those decisions? Should the standards be the intentions of those who made the Constitution law, and the intentions of those who provided the money to make philanthropy possible? Or should the standards be created by those currently in charge of the Constitution or the philanthropy according to their perceptions of what the nation needs today.
We are not agreed upon the answer to those questions in either field. The Supreme Court has regularly claimed and exerted the power to enforce, in the name of the Constitution, principles that are nowhere to be found in the Constitution. Judges have taken into their own hands issues that the Founders intended to leave to the moral choice of the American people.
As each of you knows better than I, just such a problem exists in the world of philanthropy. It is now here better described than in William k. Simon’s review of the report called The Ford Foundation At
Work, a report put out, perhaps incautiously, by the Fire Foundation itself. As Simon describes the Foundation at work, it fosters “anti-capitalism liberalism, displaying an illiberal zeal for equality—not equality of opportunity under the law, but a collectivist conception of equality of result and the redistribution of wealth.”
It was this ideological thrust that caused Henry Ford II to resign as a trustee in 1977 with a letter stating that “The Foundation is a creature of capitalism” but “it is hard to discern recognition of this fact in anything the Foundation does.” It was perhaps a similar perception that caused one observer to say that the Foundation could create more human happiness than it does with its grant programs by buying a drink for every man, woman, and child in the world and going out of business.
Another parallel is that both institutions influence the direction of our culture. It is obvious that the constitutional rulings of the Supreme Court are of far more than legal or even political significance. For good or ill, the Court educates. A decision does more than dispose of a case; it adds weight to one side or the other of our cultural struggles.
The attitudes the Court teaches—about patriotism and flag burning, about family and obscene literature, about personal morality and promiscuity, about equality and quotas, about religion and the abolition of religion from our public life—these attitudes will resonate throughout our culture with far wider effects than the actual decision.
Much the same may be said about the cultural impact of foundations. Many of their grants are widely publicized and necessarily suggest a point of view, whether they are the MacArthur Foundation’s “genius awards,” which, as Joshua Muravchik has pointed out, seem to go disproportionately to men and women of the Left; or the Bradley Foundation’s support of school choice in Milwaukee. If the grant itself is not visible, the work of the grantees often is. The Ford Foundation, for example, urges racial and gender diversity or the boards and staffs of grantee organizations; a policy which presses toward quotas. People may not know that a foundation has bought this behavior but they do see that a great many prestigious organizations think that racial and sexual preferences are sound policy. The Foundation has thus entered the lists on one side of an issue about which there are serious moral questions.
In our society, power of this magnitude that is not also accountable is of suspect legitimacy. There are other large and powerful institutions but they are subject to disciplines that ensure their legitimacy. In government, discipline is a political process that enables us to remove those whose uses of power we do not like. Indeed, the perception that discipline is weakening because a career political class has learned how to make the political process unresponsive provides the energy driving the movement for term limits. The economic power of corporations is similarly disciplined by the market. Accountability is imposed by dollar voting.
But there is often no discipline for either courts or foundations. Foundation officials, like judges, may well serve for life or as long as they care to. Foundation officers and judges share three other characteristics: both sets of people are unelected; both are unrepresentative of the public; and, where a donor has not been specific, both are essentially unaccountable. In one way, foundation officials are more independent and powerful than judges. Unlike judges, those officials may get to choose their successors.
What can confer legitimacy on these institutions by limiting otherwise uncontrolled discretion? In the case of courts, in my view, the legitimacy of authority can only rest on the reality and the perception that the judges decide by standards external to themselves. The only
available standard is the original intentions of those, the Founders, who made the Constitution law. Though that has been made to seem a heretical view and an impossible obligation by those who wish to politicize the courts, adherence to the original understanding is the treat all other legal documents.
When judges interpret a statute, they ask what did the legislators intend, what did they want us to do. When courts construe a contract or a will, they ask what did the persons who signed those documents, who gave them the force of law want to accomplish. There can be no other meaning to the rule law. The judge who looks outside the actual Constitution looks inside himself and nowhere else.
So it is with the trustees or officers of a foundation. Into their hands is given power that is not of their making. How should that power be employed? It is nonsense. of course, to say, as many do, that it should be employed in the “public interest.” That, as Irving Kristol said, is a political term because there are conflicting ideas of what is in the interest of the public on almost any topic one can name. The phrase
merely draws a fig leaf over the fact of political choice. The same thing occurs in constitutional law when judges begin to talk about a right of privacy or personal autonomy that is, by sheer oversight on the part of the Founders, not mentioned in the Constitution.
In both constitutional law and philanthropy, the first and most serious problem with ignoring the original Intent is its dubious morality. The only reason the judge or the foundation officer has any power is that the ratifiers or the donor had certain principles they wished to see put into effect. Had the ratifiers known what activist judges might do to their Constitution, those principles would not have been given to the keeping of judges. Had Henry and Edsel Ford known what activist foundation officers might do to their principles, the money very probably would not have been given or, if given, subjected to stringent legal control.
In both cases—courts and foundations—to change the principles later, and to do so in the name of the same document or donor, is a piece of trickery unworthy of those to whom power is entrusted. That is why I find somewhat troubling the statement of the executive director of the Pew Charitable Trusts. When asked if she senses the ghosts of the conservative Pews of the past as she reshapes the institution they built, she said, “Not their political ghosts. Those are gone.” One wonders whether fewer foundations will be created in the future as today’s wealthy see what has happened to the foundations created by yesterday’s wealthy.
There are, of course, instances where the donor express very clear intentions. One remembers John D. Rockefeller’s direction that his money should be used to promote the “well-being of mankind throughout the world.” Not to mention John D. MacArthur’s statement to one of his foundation’s trustees: “I figured out how to make the money. You fellows will have to figure out how to spend it.” That, I, suppose, can be read as carte blanche and perhaps it is wrong to criticize any use made of money given on such terms. Perhaps it is also wrong to have law that allows giving without direction or that permits such a foundation to have an indefinite life.
Constitutional law has cures for parallel situations where a legislature enacts a statute, as Kentucky’s once did, requiring that products not be sold for more than their “real value” or, as Congress once did, making a criminal to make any “unreasonable charge” for necessaries. These were invalidated by the Supreme Court as too vague to enforced. The Court also once used something called the “non-delegation doctrine,” which meant that the legislature had to make the basic policy choices in a statute and could not delegate the entire legislative function to courts or agencies.
By a parity of reasoning, since the tax exemption is given to the person who donates the money, perhaps legislation should require reasonable specificity as to his or her intentions before the exemption will be allowed. There may be something to be said for not allowing the donor simply to delegate what is a very extensive and uncontrolled power to others whom he may not even know and whose uses of that power he cannot anticipate.
Where such pools of money exist, if would seem to me preferable for those who have discretion in its distribution to further non-political ends rather than their own moral and political agendas. Funding research into cures for cancer means less funding for Alzheimer’s research. That involves a choice, and in a sense it can be called a political decision about which research is more valuable to the public. But it is clearly not political in the explicit and less defensible sense that is involved in funding to defend or attack capitalism or religion or wealth redistribution.
Moreover, even where a donor has not made his intentions explicit, it will usually be made possible, perhaps within a wide range but nevertheless with limits, to determine from his life and activities what uses he would not approve.
Even when the donor has made his intention known. there may be difficulty in applying that intention because of unanticipated circumstances. I read with interest about the legal battle over the Buck Trust when it was proposed to use some of the funds, which had vastly increased since Mrs. Buck’s death, in the San Francisco area rather than just in Marin County, as she had repeatedly directed. It was argued that if Mrs. Buck were alive she would have approved the change in the Trust’s terms because she had no idea she was giving so much to Marin County.
That seems to me a dangerous, and ultimately unacceptable, line of reasoning. In constitution law, when unanticipated circumstances arise, courts have no difficulty in applying a general principle contained in the Constitution. Thus, they have extended the First Amendment’s guarantee of freedom of the press to radio and television.
But I would expect very rough sledding for a lawyer who argued that the requirement in Article II that, to be eligible for the Presidency, a person must have attained the age of thirty-five years should be reinterpreted in light of the fact that in today’s society people reach the same level of maturity by the age of thirty or, more likely, do not reach it until forty. A general principle stating a value to be protected is not involved; a quite specific and unambiguous requirement is. That was the case with the Marin County limitation, and it is the purest speculation whether the Framers of the Constitution or Mrs. Buck would have chosen different limits were they alive today.
Some donors attempt to avoid the corruption of their intentions by limiting the lives of the foundations they create, a solution not available to the writers and ratifiers of our Constitution, and not attractive to donors who think of their foundations as perpetual memorials to themselves. Some donors try to control the use of their funds by setting out the purposes to be served. But, as has been the case with judges who make the Constitution mean what the judges want, there are few effective ways of enforcing the stated intentions against foundation officers who ignore the donor’s desires. Finally there is the ever present threat of the cy pres doctrine. In some states, cy pres allows only necessary deviations that seem “expedient.”
At bottom, the problem of fidelity to the original intent in both judging and foundation administration is one of self-discipline in the service of the founders’, rather than one’s own, moral purposes. We have not done well in constitutional law. I wish you better fortune in the world or philanthropy.
Judge Robert Bork holds the John M. Olin Chair in Legal Studies at the American Enterprise Institute.
Editor’s Note: This article was originally published in the Winter 1993 edition of Philanthropy magazine.