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Reagan’s Justice

Bork found it unnecessary to make either of those arguments. Instead he announced a surprising doctrine: that when the Supreme Court has “created a new right,” rather than explicating some “value” already stated in the Constitution, lower court judges have no responsibility to formulate a coherent statement of the right by considering how the principles that are presupposed by the Court’s past decisions may bear on the interpretations they make. The lower court judges should look only to principles the Court has itself already “articulated.”

The rest of Bork’s opinion shows what that means: lower courts dealing with a “new” right may refuse to recognize the right in any circumstances in which the Court has not explicitly recognized it itself.11 Since, according to Bork, the right to privacy is a “new” right, he is not required to ask whether any principle can be found that would justify constitutional protection for the liberties the Court has recognized but would not extend to homosexual acts with consenting adults as well. Does Blackmun’s statement in Roe v. Wade about the right to privacy, which I quoted, not count as an “articulated” principle? Bork’s answer is short.

Those formulations are not particularly helpful to us, however, because they are less prescriptions of a mode of reasoning than they are conclusions about particular rights enunciated. We would find it impossible to conclude that a right to homosexual conduct is “fundamental” or “implicit in the concept of ordered liberty” unless any and all private sexual behavior falls within those categories, a conclusion we are unwilling to draw.

Candor” requires Bork to add that he himself thinks that the Supreme Court acts wrongly whenever it does “create new rights.” The message is clear enough: if the Supreme Court acts in a way Bork thinks wrong he will not apply its decisions in a principled manner. It is therefore very important to try to understand what he means by “new rights,” in order to know when we can expect this form of argument from him and other lower court judges like him.

He says that rights are new rights unless they can be “fairly derived by standard modes of legal interpretation from the text, structure, and history of the Constitution.” But of course every Supreme Court justice thinks that his or her views about constitutional rights do represent the proper way to interpret the language and design of that document.12 So the doctrine that “candor” forces Bork to confess is only the platitude that the justices should not make mistakes. But this makes his radical doctrine all the more troubling, because it means that he will refuse to treat past Court decisions as embodying general principles whenever the Court has not followed the methods that he himself prefers.

What methods, then, must the Court follow to earn Bork’s cooperation? We should look, for our answer, to his published essays on constitutional theory,13 though there are echoes of these essays throughout his Dronenbrug opinion. He says that judges “must stick close to the text and the history [of the Constitution], and their fair implications…,” but this abstract formulation, with which almost everyone would agree, leaves all the difficult questions open. What process of interpretation produces “fair” implications? What are the fair implications from the text and history of, for example, the Fourteenth Amendment, which commands “equal protection of the laws”?

These central questions have been the main topics of a running debate among constitutional lawyers for several decades. Academic lawyers have developed a large number of theories ranging from the claim that the only fair interpretation is one limited to what the “framers” actually contemplated, in concrete detail,14 to the claim that a fair interpretation is one that treats the framers as having laid down general concepts of political principle that the Supreme Court must fill out through philosophically defensible accounts of those concepts. Bork thinks his own theory is closer to the first than to the second of these poles, but that is not so, as the following important example reveals.

Bork asks whether the Court “stuck close to the text and history” in its famous 1954 Brown decision15 holding racial school segregation unconstitutional, and later decisions requiring all state facilities integrated. It did not do so, he argues, if that formula means applying the equal protection clause of the Fourteenth Amendment only to practices the statesmen who enacted it themselves intended to outlaw, because there is no evidence that these statesmen had education in mind, let alone municipal swimming pools.

But Bork concedes that his formula does not require that kind of deference to the very specific intentions or convictions of officials who, after all, drafted the amendment in general rather than detailed language. He recommends, instead, the following more speculative method of argument. It is plain enough, he says, that the equal protection clause was meant to provide some large form of racial equality as a constitutional requirement, though the framers probably were uncertain or disagreed about exactly which form. So the Supreme Court must define an appropriately “neutral” principle of racial equality to fit the clause, that is, a principle it can defend as not based on the particular political interests or causes of particular justices. Bork says that only one principle will meet that test: that all forms of racial distinction are invalid. So the Supreme Court was right to insist on desegregation not only of schools but of public swimming pools and other facilities as well.

The argument is persuasive, but Bork is wrong to think that it involves only historical or linguistic judgments. For someone just as faithful to bare text and strict history could have reached a very different conclusion about how the equal protection clause should be read. Since the congressmen who enacted the Fourteenth Amendment after the Civil War presumably had blacks in mind, as the victims of racial discrimination, why should the Court not have interpreted the clause as protecting only that race? Why should the clause be understood as protecting other minority races and ethnic groups as well? (Bork says, in Dronenburg, that the Constitution contains a “specific” protection of “ethnic” as well as racial minorities, but neither that word nor any synonym appears in the text, and it is historically adventurous to assume that post–Civil War statesmen were concerned to give Italo-Americans, for example, constitutional standing.)

Why should the constitutional principle not be interpreted as calling for equal but not necessarily integrated facilities, as the Court itself had said in Plessy v. Fer-guson,16 decided much sooner after the Fourteenth Amendment was enacted? Why should the principle not be broader than the Court said it was in Brown and later cases; why should it not be understood to command, for example, an economic system that provided equal economic standing for different racial groups? Once the Court denied that its interpretation of the Constitution was restricted to the actual, concrete intentions of the congressmen who drafted the amendment, it could have defended each of these principles, with equal historical authority, as reflecting the general ambition of the framers to provide some “large” form of racial equality.

The Court’s choice of one of these principles—the one it actually developed in Brown and the later cases concerning racial discrimination—can be justified only by adding to the narrow linguistic and historical arguments Bork favors very different arguments drawn from what he disdainfully calls “moral philosophy.” 17 The Court was obliged to find some constitutional conception of equality it could defend both as principled, as marking genuine differences of political morality rather than only arbitrary classifications, and as consistent with other parts of the general constitutional design. Any principle limited to blacks, or any other particular racial or ethnic minority, would have offended the first of these requirements, because it would be unprincipled and arbitrary, however it might have appealed to some of the framers whose general injunction the Court was explicating.

Any principle much broader than the one the Court developed would have offended against the second requirement, that of consistency. Since the Constitution cannot plausibly be understood as requiring general economic equality, any principle demanding economic equality for all racial groups would be arbitrary in a different way. What Bork calls “philosophy” is therefore not an “undemocratic” alternative to a more chaste, more severely historical approach, but an inescapable, absolutely necessary part of any historical approach not patently absurd.18

The example is instructive because it discredits Bork’s assumption that there is any useful distinction in structure between the method he approved for the race cases and the method he denounces, as creating “new” rights, in the privacy cases. For we can reconstruct the argument for privacy on the model of his argument for integration. The legislators who enacted the due process clause, for example, had a general ambition to secure what Justice Cardozo once called, in the phrase Blackmun repeated, the great idea of “ordered liberty.” They did not specify what due process was, or which liberties were consistent and which were inconsistent with order, perhaps because they were uncertain or divided about those issues, or perhaps because they wanted the general idea, and not their own diverging and unformed ideas, to provide the constitutional standard.

So the Supreme Court has a duty to find some conception of protected liberties, some statement defining which freedoms must be preserved, that is defensible both as a political principle and as consistent with the general form of government established by the Constitution. The Court tried to acquit that duty in the contraception and abortion cases. It decided that any proper account of protected liberty, in a society that respects liberty in principle, must include freedom to choose concerning marriage and procreation—at least so long as the choice is not harmful to oneself or others whom the state must treat as persons.

That is an attractive statement of the principle of ordered liberty. A nation that rejects it, and thinks order is jeopardized unless the majority has the power to dictate how everyone must arrange the most intimate and private aspects of his or her life, leaves nothing to the idea of liberty at all. So it is at least plausible to suppose that a principle protecting individual choice in private decisions was needed to satisfy the framers’ general ambition to establish some realm of “immunity” where a person is free from coercion by the majority. But though this argument has the same structure as the argument Bork approves for the race decision, it does not follow that it is as good an argument. It must be tested in detail by asking whether any more limited account of protected liberties could be defended as not arbitrary and more in keeping with other aspects of the constitutional arrangement.

Many constitutional lawyers would argue that those who enacted the due process clause were themselves more concerned with procedural aspects of the legal process than with protecting personal liberties. But this is not a decisive argument, any more than it is decisive to say, in interpreting the equal protection clause, that its framers were more concerned with formal equality before the law than with effective racial integration. In both cases the Court’s responsibility is to ask whether a constitutional doctrine limited to what the framers had concretely in mind would be principled rather than arbitrary. The proposition that individuals must be secured from majority tyranny when it comes to deciding which procedures will be used to try them for crimes, but not when it comes to defining the crimes themselves, evidently seemed to the Court too arbitrary, too lacking in principle.

There may well be good objections to that argument and to the Court’s privacy decisions.19 Bork himself provides none however. He rests his case on the simple declaration that those decisions created new rights, and need not be treated in a principled way. This can only mean that he himself is willing to allow the central question of sexual morality, though not of racial morality, to be decided at the ballot box.

Bork’s constitutional theory contains a great deal more, beyond his views about sexual minorities, that we ought to notice if we are concerned about Reagan’s selection of judges. Several important free speech cases will come to the Court soon and he thinks, for example, that most of the modern constitutional law of free speech is a mistake. That law is now largely based on the famous dissents of Holmes and Brandeis in 1920s cases that affirmed convictions under sedition acts. Benjamin Gitlow, for instance, was convicted of “criminal anarchy” because he published a manifesto calling for what the Supreme Court summarized as “mass industrial revolts developing into mass political strikes” that were aimed ultimately at “conquering and destroying the parliamentary state and establishing in its place… the system of Communist Socialism.”20 In Whitney v. California the defendant was convicted of the crime of being a member of the Communist Labor party of California, an organization that was deemed to advocate using unlawful means to alter the political system.21 In neither case was the state able to show that the defendant intended to incite any immediate violence, or that any danger was likely to flow from what he or she had said.

Holmes and Brandeis, in these and other cases, argued passionately for what came to be called the “clear and present danger” principle: that freedom of speech is so important a value in our democracy that speech should in no case be constrained unless, in Brandeis’s words, it “would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state constitutionally may seek to prevent.” Their view prevailed;22 the majority decision in Gitlow, Whitney, and the other sedition cases are now thought by almost everyone to have been mistakes. Many constitutional lawyers think the “clear and present danger” test defines the constitutional right too narrowly: a society that cherishes freedom of speech, they think, should risk some larger danger than this test requires to protect it. Bork, on the contrary, believes the test entirely too protective: he thinks the decisions convicting Gitlow and Whitney were right, for the chilling reason that, in his opinion and contrary to that of Holmes and Brandeis and almost every political philosopher who has discussed the issue since John Stuart Mill, speech of their sort “has no political value within a republican system of government.”

So free speech in politics, for Bork, means freedom for speech that the judges deem to have some value. He, for one, thinks that speech fundamentally challenging our political system can have none because he thinks that the only value of airing ideas lies in their truth. His theory of the First Amendment is even worse than this suggests, however. For he says the amendment has no application whatever to speech that is not directly political, however valuable it might be. “It does not cover scientific, educational, commercial or literary expression as such. A novel may have impact upon attitudes that affect politics, but it would not for that reason receive judicial protection.” Under Bork’s Constitution a state could ban the sale or possession of Ulysses, because it is sexually explicit, or the works of Sartre, because he was arguably a Marxist, or Proust, because he was a homosexual, or biology texts that discuss racial genetics, because these might be distressing. It would only be necessary to show that each of these decisions could be thought rationally related to the goal of “implementing” the popular “morality” of the community.

We must keep Bork’s view of the Constitution in mind when we consider what we might expect from a Supreme Court dominated by justices who share his attitudes. The Court has had powerful conservative as well as liberal members in the past. But most of them accepted a general duty of intellectual responsibility toward constitutional law as a principled whole. They understood—even emphasized—the need to follow principles laid down in past precedents and not to ignore or repeal these just because they disliked the substantive results. The present Supreme Court has shown a disquieting tendency to abandon that restraint, as Justices Stevens and Blackmun remarked. But it has never expressly adopted Bork’s position that it may limit its deference to past decisions only to their particular circumstances, with no concern for the principles necessary to justify them. Bork’s views on free speech suggest how little of modern constitutional jurisprudence might survive that policy if his views dominated the Court. His opinion in Dronenburg shows how little he would need, by way of argument, to justify sweeping what he dislikes away.

For in that case he offered almost no argument, beyond his doctrine of “new rights,” which we have been considering. I quoted earlier his remark that Blackmun’s opinion and the other Supreme Court decisions do not provide sufficient guidance on which sexual freedoms might be “fundamental” to allow lower court judges to apply these decisions to new cases. But judges are able, in every field of the law, to apply words like “reasonable” and “fundamental” by deciding whether some new case is more like or more unlike cases in which such words have been applied in the past. It is disingenuous to suggest that judges are incapable of deciding whether the right to homosexual activity is at least as fundamental as the right to buy contraceptives elsewhere than at druggists.

Bork said that the principle of liberty Dronenburg’s lawyers claimed to be inherent in the past Supreme Court decisions was ridiculous. But he wholly misunderstood that principle.23 He summarized it as supposing that morality can never be the “basis” for legislation, and then thought he had refuted it by pointing out that much legislation is justified on moral grounds, like civil rights acts and statutes protecting worker safety. The principle on which Dronenburg relied is very different from Bork’s description: it holds that the majority’s moral distaste is not in itself a sufficient reason for preventing people from acting in ways that cause no actual harm to themselves or others. So Bork’s analogies are entirely inapt. Racial discrimination is immoral, and unsafe working conditions intolerable, exactly because of the harm they do cause.

Bork declared, finally, that homosexuality could not fall within constitutionally protected categories “unless any and all private sexual behavior falls within those categories, a conclusion we are unwilling to draw.” Once again he misunderstands the principle in question: it need not be stated in such a way as to include sadism or sexual coercion or abuse of children, for example, all of which do cause harm to others. So in the end his argument is limited only to his regal “unwillingness to draw” a conclusion that might, for all he has shown, be the only conclusion the law permits.

This is the jurisprudence of fiat, not argument. It is sadly consistent with the Republican platform, which calls for the appointment of judges “at all levels of the judiciary” with the proper, that is to say right-wing, views about “traditional family values and the sanctity of innocent human life,” as if only a justice’s personal moral convictions, not his or her arguments of law, really mattered. If justices with that view of their work colonize the Supreme Court, earning their places through decisions like Bork’s, the Court will no longer be what our traditions celebrate, a forum of principle where unpopular minorities can argue for liberty on grounds of right. It will become the Moral Majority’s clubhouse, where the prejudices of the day are called constitutional law.


Reagan’s Justice: An Exchange February 14, 1985

  1. 11

    He appears to deny this in a footnote. “The only questions open for us,” he says, “are whether the Supreme Court has created a right which, fairly defined, covers the case before us or whether [it] has specified a mode of analysis…which, honestly applied, reaches the case we must now decide.” But his argument makes no attempt at any “definition” or “application” beyond a statement of the discrete decisions the Court has already made.

  2. 12

    Bork sometimes speaks as if the justices who make the decisions he deplores know they are creating “new” rights and do so anyway. Indeed he offers a few instances of justices saying that the Supreme Court sometimes creates new rights. But these are all statements in dissenting opinions, and they are only a way of accusing the majority of having made a serious mistake. We do not find examples of justices confessing that their own arguments have created new rights.

    One of Bork’s citations is a misrepresentation. He says Justice Stewart conceded creating a new right in Roe v. Wade. But Stewart said only that the Court had changed its mind about the correct interpretaion of the due process clause, which is very different; and he added that the Court was now “correct” in claiming that the right to an abortion “is embraced within” the Constitution, which denies that the Court was creating any new constitutional right.

    Bork is more accurate when he says, elsewhere, that “[t]he Supreme Court regularly insists that its results, and most particularly its controversial results, do not spring from the mere will of the Justices in the majority but are supported, indeed compelled, by a proper understanding of the Constitution…” (Bork, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal, vol. 47, no. 1, 1971.)

  3. 13

    Neutral Principles” in preceding footnote and “The Impossibility of Finding Welfare Rights in the Constitution,” Washington University Law Quarterly, 1979, p. 695.

  4. 14

    See, e.g., Raoul Berger, Government by Judiciary (Harvard University Press, 1977).

  5. 15

    347 US 483 (1954).

  6. 16

    163 US 537 (1896).

  7. 17

    Bork says that judges should not rely on moral philosophy to justify their constitutional decisions. But his argument for that very thesis is itself based on a highly controversial, and just now very unpopular, position in moral philosophy, namely a particularly crude form of moral skepticism according to which, as Bork says, there is no difference in the “objective” value of different sorts of “gratification,” so that the pleasures of the sadist or racist are intrinsically no less valuable than those of anyone else. So Bork’s position is incoherent: judges should never rely on moral philosophy because one position in moral philosophy, the one he relies on, is objectively the right one. It is incoherent in another way as well, because if his crude form of skepticism were right the courts could not have, as he says they do, a moral duty to defer to the will of the majority when the Constitution is silent. It would be only a matter of the judges’ preferences, and of their power to reach results that “gratify” them.

  8. 18

    I elaborate this point in “The Forum of Principle,” an essay reprinted in A Matter of Principle, a collection forthcoming from the Harvard University Press.

  9. 19

    John Hart Ely, for example, dean of the Stanford University Law School, in his recent book Democracy and Dissent, argues that the Constitution’s general design is best understood as protecting only rights that are at bottom procedural because they protect genuine democracy rather than limiting the substantive decisions a genuine democracy can take. Ely thinks the race cases were justified, on this view of the Constitution’s structure, because racial discrimination affects the minority’s power in politics and so compromises democracy, but that the abortion decision, and any decision the Court might make recognizing rights of homosexuals, could not be justified in that way. (See his article, “Democracy and the Right to be Different,” New York University Law Review, vol. 56, p. 397.) I believe his argument is unsuccessful, certainly in establishing a difference between racial and sexual minorities (see my criticism of his argument in the essay cited in note 23), but it is an argument based in a positive and principled view of the point of the various constitutional provisions in question, an argument of the kind Bork needs and lacks.

  10. 20

    Gitlow v. New York, 268 US 652 (1925).

  11. 21

    Whitney v. California, 274 US 652 (1925).

  12. 22

    See Dennis v. US, 341 US 494 (1951).

  13. 23

    Bork’s confusion is curious. The principle claimed by Dronenburg is a version of the one John Stuart Mill defended in his famous essay On Liberty, and Mill’s argument has been at the center of every subsequent discussion in England and America about whether homosexuality should be made criminal. (See, for example, H.L.A. Hart’s book, Law, Liberty and Morality.) Bork also misunderstands another point Dronenburg’s lawyers made, that the fact that popular morality condemns homosexuality is itself an argument that it should be constitutionally protected. They did not mean the absurd idea he attributes to them: that any legislation favored by the majority is presumptively invalid. They meant that the widespread prejudice against homosexuals suggests that public support for antihomosexual legislation is based on that prejudice rather than on any supposed genuine harm to others, so that if some version of Mill’s principle does have constitutional standing, courts should be specially suspicious of any such legislation. (I defend an argument like that in my reply to contributors in Ronald Dworkin and Contemporary Jurisprudence, edited by Marshall Cohen, Rowman and Allanheld, 1983.)

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