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The Bork Nomination

History alone might be able to show that some particular concrete opinion, like the opinion that school segregation was not unconstitutional, was widely shared within the group of legislators and others mainly responsible for a constitutional amendment. But it can never determine precisely which general principle or value it would be right to attribute to them. This is so not because we might fail to gather enough evidence, but for the more fundamental reason that people’s convictions do not divide themselves neatly into general principles and concrete applications. Rather they take the form of a more complex structure of layers of generality, so that people regard most of their convictions as applications of further principles or values more general still. That means that a judge will have a choice among more or less abstract descriptions of the principle that he regards the framers as having entrusted to his safekeeping, and the actual decisions he makes, in the exercise of that responsibility, will critically depend upon which description he chooses.

I must illustrate that point in order to explain it, and again I can draw on Bork’s own arguments to do so.5 In his discussion of the Brown case, he proposed a particular principle of equality as the general principle judges should assign to the framers: the principle that government may not discriminate on grounds of race. But he might just as well have assigned them a more abstract and general principle still: that government ought not to discriminate against any minority when the discrimination reflects only prejudice. The equal protection clause of the Fourteenth Amendment does not, after all, mention race. It says only that government must not deny any person equal protection of the law. The Fourteenth Amendment was, of course, adopted after and in consequence of the Civil War, which was fought over slavery. But Lincoln said the war was fought to test the proposition that all men are created equal, and of course he meant women as well. In any case it would be preposterous to think that the statesmen who created the equal protection clause thought that official prejudice was offensive only in the case of race. They thought that official racial discrimination was outrageous because they held some more general principle condemning all forms of official prejudice. Indeed, their views about race would not have been moral views, which they plainly were, unless they held them in virtue of some more general principle of that sort.

Then why should judges not attempt to define and enforce that more general principle? Why should they not say that the framers enacted a principle that outlaws any form of official discrimination based on prejudice? It would follow that the equal protection clause protects women, for example, as well as blacks from discriminatory legislation. The framers apparently did not think that their principle had that range; they did not think that gender distinctions reflected stereotype or prejudice. (It took a later constitutional amendment, after all, to give women the vote.) But once we have defined the principle we attribute to the framers in that more abstract way, we must treat their views about women as misunderstandings of the force of their own principle, which time has given us the vision to correct, just as we treat their views about racially segregated education. That, in effect, is what the Supreme Court has done.6

But now consider the case of homosexuals. Bork called the suggestion that homosexuals are protected by the Constitution a blatant example of trying to amend that document by illegitimate fiat. But once we have stated the framers’ intention as a general principle condemning all discrimination based on prejudice, then a strong case can be made that we must recognize homosexual rights against such discrimination in order to be faithful to that intention. The framers might not have agreed, even if they had examined the question. But once again a judge might well think himself forced, in all intellectual honesty, to regard that as another mistake they would have made, comparable to their mistakes about school segregation and women. Once again, as in those cases, time has given us the information and understanding that they lacked. Superstitions about homosexuality have been exposed and disproved, many states have repealed laws making homosexual acts criminal, and those laws that remain are very widely regarded as now based on nothing but prejudice. I do not mean to claim that the argument in favor of homosexual rights would be irresistible if we accepted the broader reading of original intention that I described. But the argument would state a strong case that any opponent would have to answer in detail, not simply brush aside as Bork did.7

An appeal to the framers’ intention, in other words, decides nothing until some choice is made about the right way to formulate that intention on any particular issue. If we choose the narrowest, most concrete formulation of original intention, which fixes on the discrete expressed opinions of the framers and ignores the more general moral vision they were trying to serve, then we must regard Brown as unfaithful to the framers’ will; and that conclusion will seem to most people ample evidence that the most concrete formulation is the wrong one. If we assign to the framers a principle that is sufficiently general not to seem arbitrary and ad hoc, on the other hand, like the principle that government must not discriminate on grounds of prejudice, then many of the decisions Bork castigates as illegitimate become proper according to the standards Bork himself claims to endorse.

So everything depends on the level of generality a judge chooses as the appropriate one, and he must have some reason for his choice. Bork chooses a level intermediate between the two I just described.8 He says that judges should assign the framers a principle limited to the groups or topics they actually discussed. If race was discussed during the debate over the equal protection clause, but neither gender nor sexual behavior was “under discussion,” then the original intention includes the principle that government should not discriminate racially. It does not include the more general principle that the government should not act out of prejudice against any group of citizens, because that more general principle would apply to women and homosexuals, who were not discussed. The odd suggestion that we can assign no general principle to the framers whose application would extend to any group or topic not “under discussion” would of course sharply limit the individual rights the Constitution would protect. But it is flatly inconsistent with Bork’s other opinions—the framers of the First Amendment did not discuss the law of libel, for example. And it has no jurisprudential or historical merit at all.

There is no more sense in assigning the framers an intention to protect only the groups they actually mentioned than in assigning them an intention limited to the concrete applications they actually envisioned, which Bork agrees would be absurd. The framers meant to enact a moral principle of constitutional dimensions, and they used broad and abstract language appropriate to that aim. Of course they discussed only the applications of the principle that were most on their minds, but they intended their discussion to draw on the more general principle, not eviscerate it. Perhaps they disagreed among themselves about what their principle would require, beyond the issues they discussed. And contemporary judges, with more information, may think it requires legal decisions few if any of the framers anticipated, as in the case of segregated schools and gender discrimination. But Bork’s suggestion insults the framers rather than respects them, because it denies that they were acting on principle at all. It reduces a constitutional vision to a set of arbitrary and isolated decrees.

Bork defends this truncated view of original intention only by appealing to the platitude that judges must choose “no level of generality higher than that which interpretation of the words, structure, and history of the Constitution fairly supports.” That is certainly true, but unhelpful, unless Bork can produce an argument that his own, truncated conception meets that test; and he has not, so far as I am aware, produced even the beginning of such an argument. His conception yields narrow constitutional rules that protect only a few groups while excluding others in the same moral position. How can a discriminatory rule of that sort count as a fair interpretation of the wholly general and abstract language that the framers actually used when they referred to equal protection for all persons? Most lawyers think that the ideal of integrity of principle—that fundamental rights recognized for one group extend to all—is central to the Constitution’s structure. How, then, can Bork’s narrow rules be recommended by any fair interpretation of that structure? Unless he can produce some genuine argument for his curtailed view of original intention, beyond the fact that it produces decisions he and his supporters approve, his constitutional philosophy is empty: not just impoverished and unattractive but no philosophy at all.

Judges in the mainstream of our constitutional practice are much more respectful of the framers’ intentions, understood as a matter of principle, than Bork is. They accept the responsibility the framers imposed on them, to develop legal principles of moral breadth to protect the rights of individuals against the majority. That responsibility requires judgment and skill, but it does not give judges political license. They test competing principles in the interpretative, legal manner, by asking how far each fits the framers’ decisions and helps to make sense of them, not as isolated historical events but as part of a constitutional tradition that includes the general structure of the Constitution as well as past Supreme Court and other judicial decisions. Of course competent and responsible judges disagree about the results of that exercise. Some reach mainly conservative results and others mainly liberal ones. Some, like Justice Powell, resist classification because their views are particularly sensitive to differences between different kinds of issues. Disagreement is inevitable, but the responsibility each judge accepts, of testing the principles he or she proposes in that way, disciplines their work, and concentrates and deepens constitutional debate.

Bork, however, disdains these familiar methods of legal argument and analysis; he believes he has no responsibility to treat the Constitution as an integrated structure of moral and political principles, and no responsibility to respect the principles latent in past Supreme Court decisions he regrets were made.9 In 1971 he subscribed to an alarming moral theory in an effort to explain why. 10 He said that moral opinions were simply sources of what he called “gratification,” and that “there is no principled way to decide that one man’s gratifications are more deserving of respect than another’s, or that one form of gratification is more worthy than another.” Taken at face value, that means that no one could have a principled reason for preferring the satisfactions of charity or justice, for example, to those of racism or rape.

A crude moral skeptic is an odd person to carry the colors of the moral fundamentalists. Nevertheless, if Bork is still that kind of skeptic, this would explain his legal cynicism, his indifference to whether constitutional law is coherent in principle. If not, we must look elsewhere to find political convictions that might explain his contempt for the integrity of law. His writings show no developed political philosophy, however, beyond frequent appeals to the truism that elected legislators, not judges, ought to make law when the Constitution is silent. No one disputes that, of course; people disagree only about when the Constitution is silent. Bork says it is silent about gender discrimination and homosexual rights, even though it declares that everyone must have equal protection of the law. But he offers, as I have said, no argument for that surprising view.

He does suggest, from time to time, a more worrying explanation of his narrow reading of the Constitution, because he flirts with the radical populist thesis that minorities in fact have no moral rights against the majority at all. That thesis does recommend giving as little force to the framers’ intentions as possible, by treating the Constitution as a collection of isolated rules, each strictly limited to matters that the framers discussed. But populism of that form is so plainly inconsistent with the text and spirit of the Constitution, and with the most apparent and fundamental convictions of the framers, that anyone who endorses it seems unqualified, for that reason alone, for a place on the Court.

There is very little else about political morality to be found in Bork’s writings. He did declare an amazing political position long ago, in 1963.11 He opposed the civil rights acts on the ground that forbidding people who own restaurants and hotels from discriminating against blacks would infringe their rights to liberty. He tried to defend that position by appealing to John Stuart Mill’s liberal principle that the law should not enforce morality for the sake of morality alone. He called the idea that people’s liberty can be restricted just because the majority disapproves of their behavior an idea of “unsurpassed ugliness.”

His analysis of the connection between liberty and civil rights was confused. The civil rights acts do not violate Mill’s principle. They forbid racial discrimination not just on the ground that the majority dislikes racists, but because discrimination is a profound harm and insult to its victims. Perhaps Bork realized this mistake, because in 1973 he declared, in hearings confirming his appointment as Nixon’s solicitor general, that he had come to approve of the civil rights acts. But in 1984, without acknowledging any change in view, he disavowed Mill’s principle entirely, and embraced what he had formerly called an idea of unsurpassed ugliness, the idea that the majority has a right to forbid behavior just because it thinks it morally wrong. 12 In a lecture before the American Enterprise Institute, in which he was discussing the liberty not of racists but of sexual minorities, he dismissed the idea that “moral harm is not harm legislators are entitled to consider,” and accepted Lord Devlin’s view that a community is entitled to legislate about sexual and other aspects of morality because “what makes a society is a community of ideas, not political ideas alone but also ideas about the way its members should behave and govern their lives.”13 Perhaps Bork’s convictions did shift so dramatically over time. But it is hard to resist a less attractive conclusion: that his principles adjust themselves to the prejudices of the right, however inconsistent these might be.

In any case, the Senate Judiciary Committee should try to discover, if it can, the true grounds of Bork’s hostility to ordinary legal argument in constitutional law. It should not be satisfied if he defends his announced positions by appealing only and vaguely to the original intention of the framers. Or denounces past decisions he might vote to repeal by saying that the judges who decided them invented new rights when the Constitution was silent. For these claims, as I have tried to show, are empty in themselves, and his attempts to make them more substantial show only that he uses original intention as alchemists once used phlogiston, to hide the fact that he has no theory at all, no conservative jurisprudence, but only right-wing dogma to guide his decisions. Will the Senate allow the Supreme Court to become the fortress of a reactionary antilegal ideology with so meager and shabby an intellectual base?

Letters

The Bork Nomination November 5, 1987

  1. 5

    For more general discussions of the same point in different contexts, see my Taking Rights Seriously (Harvard University Press, 1977), Chapter 5, A Matter of Principle (Harvard University Press, 1986), Chapter 2, and Law’s Empire (Harvard University Press/Belknap Press, 1986), Chapter 9.

  2. 6

    See, for example, Craig v.Boren, 429 US 190 (1976).

  3. 7

    I might have used many other areas of constitutional law to illustrate the point I have been making about the idea of original intention. In the 1971 article I mentioned earlier, for example, Bork offered a theory about the original intention behind the First Amendment’s guaranty of freedom of speech. He said that the framers intended to limit constitutional protection to politically valuable speech, and that the First Amendment therefore does not prevent legislators from banning scientific works they disagree with or censoring novels they find unattractive. He recently announced that he long ago abandoned that view, for the somewhat shaky reason that scientific works and novels may relate to politics (most of them do not). But he still apparently believes that the First Amendment has no application either to pornography or to what he regards as advocacy of revolution, on the ground that neither has any political value in his eyes.

    He offers no justification, however, for attributing to the framers the relatively narrow principle that only political ideas deserve protection. No doubt they focused on political censorship, which was one of the evils they had fought a revolution against. But since Milton’s Areopagitica, at least, it had been widely supposed that political speech must not be censored for a more general and abstract reason that applies to other forms and occasions of speech as well: that truth will emerge only after unrestrained investigation and communication. (A tract in favor of free speech published in 1800 argued that “there is no natural right more perfect or absolute, than that of investigating every subject which concerns us.”) So once again the choice of which principle to attribute to the framers will be decisive. If we concentrate on their special concern about political speech, Bork’s formulation seems more appropriate. If we look instead to the philosophical antecedents of that special concern, it does not. We need an argument to justify the choice, not a flat declaration that one formulation does and the other does not capture the original intention.

  4. 8

    He does so in a lecture to the University of San Diego School of Law on November 18, 1985, reprinted in the San Diego Law Review, Vol. 23, No. 4 (1986), p. 823. Bork attempted to reply, in that lecture, to an argument by Dean Paul Brest of the Stanford Law School which was apparently similar to the argument I have made here. Bork does not supply a reference to Brest’s argument.

  5. 9

    In an earlier article (The New York Review, November 8, 1984) I contrasted Bork’s methods, as exhibited in the Dronenburg case, with the methods more traditional lawyers would have used.

  6. 10

    Bork, “Neutral Principles,” p. 10.

  7. 11

    Bork, “Civil Rights—A Challenge,” The New Republic (August 31, 1963), p. 19.

  8. 12

    Bork, “Tradition and Morality in Constitutional Law,” The Francis Boyer Lectures, published by the American Enterprise Institute for Public Policy Research.

  9. 13

    Bork did not, however, read Devlin very carefully. Devlin thinks the majority has a right to enforce its moral views only in unusual circumstances, when unorthodox behavior would actually threaten cultural continuity, and he does not think that his views would support making private homosexual acts between consenting adults criminal. See Patrick Devlin, The Enforcement of Morals (Oxford University Press, 1965).

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