Postmodern Times.

The Democrats deny the very concept of truth.

Mr. Arkes, an NR contributing editor, is Ney Professor of Jurisprudence at Amherst College.

It may have been, altogether, a ragged, unsettling year since the Advent of Monica, yet nothing has been unsettled, or altered, in the character of Bill Clinton. He has remained, remarkably, the same. It is his defenders who have had to perform moral surgery on themselves. After watching the performance of the Democrats, and their allies, in the Judiciary Committee, we may even now say that the defense of Clinton has been far worse than his crimes. His very dissembling was a mark at least of his awareness that he had done something that the public-even in these times-was apt to regard as wrong. And while he summoned his usual fortitude in looking us in the eye and lying, he still presupposed that there was a truth to be covered up. In contrast, the Democrats in Congress have gone positively "postmodern" in their willingness to deny that there are any "foundations" or truths behind our judgments, that there are any objective standards that would allow us to measure either straight lines or straight stories.

What else are we to make of the willingness of Maxine Waters and other Democrats to emit, at regular intervals, the cry of "unsubstantiated charges"? Or the curious persistence of Rep. Mel Watt in asking Ken Starr just how he could accept the "credibility" of Monica Lewinsky when she had professed, so openly, that she had been reared by her mother on a regime of lying. Had it simply slipped their minds that there was, after all, a dress, with stains of semen, and a test of DNA so compelling that it could finally elicit an admission even from the most consummate liar in the land? What became evident was that this operating rule had settled among defenders of the president: The most documented facts, and the most incontrovertible "evidence," can be waved aside as though they did not exist, or did not count, if one simply insists, without surcease, that there are only "charges," "unsubstantiated"-that everything is arguable, everything a matter of perception and opinion-and that these themes, repeated day in and day out, will be enough to persuade about a third of the public. Nothing is apparently as credible as a falsehood grown venerable with repetition.

The lie was acted out on a larger stage during the vote on impeachment, when the Democrats put up their proposal for "censure." In a parade of speakers, they would characterize the acts of their president as "reprehensible," as "disgracing" the office of presidency. And yet, after the vote was over, they would rush to his side and envelop him with applause as though he had been a victim, a sufferer, rather than the wrongdoer. This false posture carries over now into the Senate, and it colors instantly as a lie the earnest declamations offered by the Democrats: They insist that they regard the president's acts as deeply wrong, and yet not of a sufficient weight to justify his removal from office. If we would only hold back from that immoderate course, they assure us, they would be willing to arrange a censure that is truly serious.

What brands their posture a lie is the fact that they cannot quite get around that elementary logic expressed by John Stuart Mill, who should stand after all as a patron saint among the liberals: "We call any conduct wrong," wrote Mill, "or employ, instead, some other term of dislike or disparagement, according as we think that the person ought, or ought not, to be punished for it." Sen. Lieberman has thundered his moral condemnation, in the style of a Biblical prophet, but he has stopped short of drawing the conclusion by calling for resignation or supplying a punishment.

What about the move to levy fines as a punishment, joined with some finding of fault that the president admits and signs? In fiddling with these schemes, the Democrats have been joined by such Republican luminaries as Bob Dole and President Ford. With Dole and Ford, there seems to be a conservative temper at work in avoiding any wrenching changes that may unsettle our institutions. And yet, Dole and Ford join the Democrats in their willingness to treat the Constitution itself with the most serene disregard. In fact, they seem to have lost entirely the understanding taught by the Founders, that the first obligation of statesmen in the Republic is to do nothing, in their measures, that injures the Constitution, or the "basic law," the law that tells us how we have laws.

And that basic law has incorporated a principle running to the core of "lawfulness" in the aversion to bills of attainder: It is simply not part of the business of Congress, as a legislature, to mete out punishments to persons by name, even if their names happen to be Nixon or Clinton. As Felix Frankfurter once observed, the Constitution meant to put legislatures out of the business of acting as courts or as administrators of the law. The discipline of legislating involves the task of defining, in impersonal terms, the nature of a wrong and the class of wrongdoers. That discipline is sharpened by the awareness, on the part of legislators, that their legislation will be put in hands other than their own to administer-perhaps unfriendly hands-and that recognition offers a powerful incentive to be cautious in what they legislate.

But in a grand gesture, former President Carter suggests that censure may be accompanied by an assurance, on the part of Congress, that there will be no prosecution if Clinton admits his perjury. Carter seems to have fallen into the same constitutional fallacy: It is precisely because Congress does not administer the law to persons, in the style of courts or agencies, that it does not direct prosecutions-or call them off.

By now, the warning bells and buzzers should be sounding: Every attempt to be clever, every attempt to avoid the trauma of impeachment and the rigors of the Constitution, turns out to create something worse, which disfigure the Constitution. Impeachment, after all, is in the Constitution, and it was brought back, vividly, 25 years ago. Why, then, are politicians suddenly so traumatized by the Constitution that they are willing to fly to schemes to circumvent it , even if they subvert the principles of lawfulness?

The most sensible advice for the Senate is to play it straight: to focus on the evidence so carefully assembled and come to a judgment. But if the Senate backs away from removing Clinton, it will sense the need to make a serious move toward a real punishment, for if the votes are wanting for conviction, Clinton is likely to claim vindication and emerge from this sorry business as a martyred victim.

At that moment, if the Democrats are serious, they may be drawn to measures that may be voted by the Congress even without the president's signature. Most notably, the Congress could apply to Clinton the kind of policy brought forth in 1974 in relation to Richard Nixon: He could lose control of all of his presidential papers and tapes, from the first moments of his presidency to his last. The control can be transferred to the General Services Administration, and Clinton can then have the burden of petitioning to get access to his own papers. In the meantime, the destruction of any of those papers would count as a felony, for those papers, after all, could be needed in trials.

Some of us continue to think that such an arrangement, too, would constitute a bill of attainder, but Justice Brennan led the Supreme Court in declaring that in the case of Nixon it did not. Once again, the law invented for Nixon would find its application to Clinton. And for Clinton to be placed on the same plane as Nixon would be felt, by all Democrats, as a reproach most severe. Congress could also decide on its own not to invite Clinton into the House for any more speeches on the State of the Union, and that move, combined with the other, would convey, unmistakably, a presidency put under the pall of condemnation.

For the Democrats, it has seemed throughout far better to install Al Gore, to run as an incumbent, rather than to have a wounded Clinton linger. But beyond all the calculations, there remains a primitive moral awareness: that it is still not good for the party to have its president discredited and chased from office. That same passion is likely to make the party just as unwilling to vote for any of those measures that carries the sting of punishment. But if the Democrats back away, they would at least dissolve the pretense that has engulfed them over the past year. For they would make it clear now that, if they stop short of punishment once again, it is because they have not thought, in their heart of hearts, that Clinton has ever done anything here truly "wrong."