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The Bork Nomination

President Reagan’s nomination of Judge Robert Bork to succeed Justice Lewis Powell on the Supreme Court presents the Senate with an unusual problem. For Bork’s views do not lie within the scope of the longstanding debate between liberals and conservatives about the proper role of the Supreme Court. Bork is a constitutional radical who rejects a requirement of the rule of law that all sides in that debate had previously accepted. He rejects the view that the Supreme Court must test its interpretations of the Constitution against the principles latent in its own past decisions as well as other aspects of the nation’s constitutional history. He regards central parts of settled constitutional doctrine as mistakes now open to repeal by a right-wing court; and conservative as well as liberal senators should be troubled by the fact that, as I shall argue here, he has so far offered no coherent justifications for this radical, antilegal position.

It would be improper for senators to reject a prospective justice just because they disagreed with his or her detailed views about constitutional issues. But the Senate does have a constitutional responsibility in the process of Supreme Court appointments, beyond insuring that a nominee is not a crook or a fool. The Constitution is a tradition as well as a document, and the Senate must satisfy itself that a nominee intends in good faith to join and help to interpret that tradition in a lawyerlike way, not to challenge and replace it out of some radical political vision that legal argument can never touch.

The Senate’s responsibility is particularly great in the circumstances of the Bork nomination. Bork is the third justice added to the Court by an administration that has for seven years conducted an open and inflexible campaign of ideological appointments on all levels of the federal courts, hoping to make them a seat of right-wing power long after the administration ends. Reagan made no effort to disguise the political character of Bork’s appointment: he said that Bork is “widely regarded as the most prominent and intellectually powerful advocate of judicial restraint,” and that he “shares my view” of the proper role of the Court. Conservative pressure groups are already raising money to support the nomination, and the right-wing New York Post has challenged liberals to “make our day” by opposing it.

Bork’s appointment, if confirmed, promises to achieve the dominance of the right on the Supreme Court that Reagan’s previous appointments failed to secure. For Justice Powell has been a swing vote, siding mainly with the right on issues of criminal law but with more liberal justices on other issues of individual rights, and he has provided the fifth and conclusive vote, one way or the other, on many occasions. If Bork votes as those who support him have every reason to expect he will, the Court will have lost the balance that Powell provided, and it will have lost the opportunity for cases to be decided one by one on the issues, rather than on some simple ideological test. So the Senate should not apply the relaxed standards it does when a president seeks merely to have his own constitutional philosophy represented on the Supreme Court. The Bork nomination is the climactic stage of a very different presidential ambition: to freeze that institution, for as long as possible, into an orthodoxy of the president’s own design.

Few nominees, moreover, have so clearly and definitively announced their positions on matters they are likely to face if confirmed. Bork has declared, for example, that the Supreme Court’s decision in Roe v. Wade, which limited a state’s power to make abortion criminal, was itself “unconstitutional,” that the Constitution plainly recognizes the propriety of the death penalty, and that the Court’s long string of decisions implementing the “one man, one vote” principle in national and local elections was seriously mistaken. He has called the suggestion that moral minorities such as homosexuals might have constitutional rights against discrimination legally absurd, and has doubted the wisdom of the constitutional rule that the police may not use illegally obtained evidence in a criminal trial. In a dissenting opinion on the Circuit Court, which the majority said contradicted strong Supreme Court precedent, he said that Congress cannot challenge in court the constitutionality of the president’s acts.

The New York Times reports White House officials as confident, moreover, that Bork will support the administration’s extreme position against affirmative action, which the Supreme Court has rejected in several close votes. And Bork has strongly suggested that he would be ready, as a justice, to reverse past Supreme Court decisions he disapproved of. (“The Court,” he said, “ought to be always open to rethinking constitutional problems.”) Nominees often decline to answer senators’ detailed questions about their views on particular issues, out of a fear that public announcement would jeopardize their freedom of decision later. But Bork has given his own extreme views such publicity that senators need not scruple to ask him to defend them.

Most commentators have assumed that Bork has a well-worked-out constitutional theory, one that is evident and straightforward, though very conservative. The Constitution has nothing in it, Bork says, except what the “framers”—“those who drafted, proposed and ratified its provisions and various amendments”—put there. When a case requires the justices to fix the meaning of an abstract constitutional proposition, such as the requirement of the Fourteenth Amendment that government not deny any person “equal protection” of the law, they should, according to Bork, be guided by the intention of the framers, and nothing more. If they go beyond what the framers intended, then they are relying on “moral precepts” and “abstract philosophy,” and therefore acting as judicial tyrants, usurping authority that belongs to the people. That, Bork believes, is exactly what the Supreme Court did when it decided the abortion case, the one-man-one-vote cases, the death penalty and affirmative action cases, and the other cases of which he disapproves.

Is that an adequate theoretical explanation of his radical constitutional positions? The idea that the Constitution should be limited to the intentions of the framers has been very popular among right-wing lawyers since Attorney General Meese proclaimed it the official jurisprudence of the Reagan administration. It has been widely criticized, in familiar arguments that neither Bork nor any member of the administration has answered.1 I shall not pursue those arguments in this article, however, because I am interested, as I said, in a different issue: not whether Bork has a persuasive or plausible constitutional philosophy, but whether he has any constitutional philosophy at all.

In order to explain my doubts I must describe, in some detail, the way Bork actually uses the idea of original intention in his legal arguments. He offered his most elaborate account of that idea in an article written many years ago, discussing the Supreme Court’s famous decision in Brown v. Board of Education, which used the equal protection clause to declare racial segregation of public schools unconstitutional.2 The Brown case is a potential embarrassment to any theory that emphasizes the importance of the framers’ intentions. For there is no evidence that any substantial number of the congressmen who proposed the Fourteenth Amendment thought or hoped that it would be understood as making racially segregated education illegal. In fact, there is the strongest possible evidence to the contrary. The floor manager of the bill that preceded the amendment told the House of Representatives that “civil rights do not mean that all children shall attend the same school,” and the same Congress continued the racial segregation of the schools of the District of Columbia, which it then administered.3

When the Supreme Court nevertheless decided, in 1954, that the Fourteenth Amendment forbids such segregation, many distinguished constitutional scholars, including the eminent Judge Learned Hand and a distinguished law professor, Herbert Wechsler, had serious misgivings. But the decision has by now become so firmly accepted, and so widely hailed as a paradigm of constitutional statesmanship, that it acts as an informal test of constitutional theories. No theory seems acceptable that condemns that decision as a mistake. (I doubt that any Supreme Court nominee would be confirmed if he now said that he thought it wrongly decided.) So Bork’s discussion of Brown v. Board of Education provides a useful test of what he actually means when he says that the Supreme Court must never depart from the original intention of the framers.

Bork says that the Brown case was rightly decided because the original intention that judges should consult is not some set of very concrete opinions the framers might have had, about what would or would not fall within the scope of the general principle they meant to lay down, but the general principle itself. Once judges have identified the principle the framers enacted, then they must enforce it as a principle, according to their own judgment about what it requires in particular cases, even if that means applying it not only in circumstances the framers did not contemplate, but in ways they would not have approved had they been asked.

Since the framers of the Fourteenth Amendment did not believe they were making segregated schools unconstitutional, nothing less than that expansive interpretation of “original intention” could justify Brown as a decision faithful to their intent. And Bork has made it plain on many other occasions that the expansive interpretation is what he has in mind. In a recent case in the DC Circuit Court of Appeals, for example, he joined a majority decision declaring that the First Amendment protected newspaper columnists from a libel suit brought by a Marxist political scientist after they had reported that he had no standing in his profession.4 Bork’s then colleague on that court, Antonin Scalia, who has since been promoted by Reagan to the Supreme Court, dissented, and chided Bork and the other members of the majority as being faithless to the intention of the framers of the First Amendment, who plainly did not suppose that they were changing the law of libel in the way the majority decision assumed. Bork replied, once again, by insisting that a judge’s responsibility is not to the particular concrete opinions the framers might or might not have had about the scope of the First Amendment principle they created, but to that principle itself, which, in his view, required that the press be protected from libel suits in ways the framers would not have anticipated.

That seems right. If we are to accept the thesis that the Constitution is limited to what the framers intended it to be, then we must understand their intentions as large and abstract convictions of principle, not narrow opinions about particular issues. But understanding their intentions that way gives a much greater responsibility to judges than Bork’s repeated claims about judicial restraint suggest. For then any description of original intention is a conclusion that must be justified not by history alone, but by some very different form of argument.

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. 1

    The idea of an institutional intention is deeply ambiguous, for example, and political judgment is required to decide which of the different meanings it might have is appropriate to constitutional adjudication. (See my book, Law’s Empire, Chapter 9.) And the original intention theory appears to be self-defeating, because there is persuasive historical evidence that the framers intended that their own interpretations of the abstract language they wrote should not be regarded as decisive in court. See H. Jefferson Powell, “The Original Understanding of Original Intent,” Harvard Law Review, Vol. 98, p. 885 (1985).

  2. 2

    See Bork, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal, Vol. 47, pp. 12–15 (1971).

  3. 3

    See Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Harvard University Press, 1977), pp. 118–119.

  4. 4

    See Bork’s concurring opinion in Ollman v.Evans 750 F2d 970 (1984).

  5. 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.

  6. 6

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

  7. 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.

  8. 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.

  9. 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.

  10. 10

    Bork, “Neutral Principles,” p. 10.

  11. 11

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

  12. 12

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

  13. 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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