The Tempting of America: The Political Seduction of the Law
Battle for Justice: How the Bork Nomination Shook America
The People Rising: The Campaign Against the Bork Nomination
Three years ago, on October 23, 1987, the Senate voted not to confirm Ronald Reagan’s nomination of Robert Bork to serve as an Associate Justice of the Supreme Court of the United States. Only eleven Supreme Court nominations have been rejected by the Senate, and no nominee has ever been defeated by as large a margin as Bork. Yet no one accused Bork of private vices, or challenged his intellectual competence. The campaign against him attacked his ideas about the Constitution, and his attitude toward those—judges, academics, politicians, and citizens—who held different views from his. The battle was fought not in the back halls of Congress but in public: Bork’s opponents conducted an elaborate and effective national campaign in the press and television, and the televised hearings on his confirmation concentrated national attention on the Constitution and on constitutional theory to a degree that has seldom if ever been equaled in our history.
Was Bork fairly treated? Was his defeat good or bad for constitutional justice in the United States? In his own book, The Tempting of America, Bork himself claims that he was defeated, by unscrupulous means, precisely because his appointment would have helped to restore legitimacy to constitutional adjudication.
Much of his book is devoted to a critical historical survey of constitutional law, in which Bork’s aim is to show the extent to which the justices of the Supreme Court have allowed their own political convictions to influence their decisions. He claims that justices have made political decisions from the earliest days of the Court onward, and that this practice, which he believes to be outrageous, became firmly entrenched, the rule rather than the exception, in the modern Court.
Bork’s complaint that the modern Court plays politics is well illustrated by his discussion of Griswold v. Connecticut, the 1965 decision which held that states may not prohibit the use of contraceptives. In that case, the Court recognized that individuals have a constitutional right, which it called a right of “privacy,” to be free from governmental interference in certain matters of personal choice. It relied on the Griswold case as a precedent when it held, in its 1973 decision in Roe v. Wade, and in other cases, that the right of privacy includes a limited right to an abortion. In 1986, however, in Bowers v. Hardwick the Court rejected the claim, which also relied heavily on Griswold, that laws prohibiting sodomy are unconstitutional. Bork offers the Griswold decision as a clear and extreme example of judicial politics. He deplores the result in Roe v. Wade as an extension of the mistake the court made in the Griswold case, and applauds the result in Bowers as a return to “the original understanding” of the Constitution.
In his confirmation hearings, Bork suggested that he would not want to reverse the outcome of the Griswold case; but in his book he returns with some vehemence to his earlier clear opposition to that decision. His characterization of Griswold now is provocative and evidently intended to be:
Some years ago I illustrated the difference between a judge and a legislator in a way that drew down a good deal of rhetorical abuse during the confirmation struggle. But being both stubborn and correct on this point, I shall employ the illustration once more and expand upon it. Given the fact that no provision of the Constitution spoke to the issue, my argument went, the Court could not reach its result in Griswold in a principled fashion. Given our lack of consensus on moral first principles, the reason is apparent. Every clash between a minority claiming freedom from regulation and a majority asserting its freedom to regulate requires a choice between the gratification (or moral positions) of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the competing claims.
Bork’s antipathy to what he regards as judicial politics—which he defines as the Court’s assertion of its own values in order to declare legislation unconstitutional when the Constitution “has not spoken”—is apparent in his criticism of Griswold. Since Americans do not as a people agree about fundamental questions of political morality, he argues, the only appropriate way for the nation to resolve controversies that involve such questions is by some process that respects majority will. When judges exercise their own political judgment instead of interpreting the Constitution, they substitute their will for the will of political majorities, and thereby assume a power which is not rightly theirs. Bork assumes that the cogency of this blunt argument will be clear to anyone who fairly considers the matter.
It makes him angry, therefore, that modern constitutional theorists such as Laurence Tribe and Ronald Dworkin believe that political judgment has a place in modern constitutional law, and that they even applaud its use. These theorists and the decisions they endorse are not merely wrong, he thinks; they are wrong in the same deep, demonstrable, and irritating sense that crackpot inventors of perpetual motion machines are wrong. Hence the confident title of the chapter in which his theoretical argument culminates: “The Impossibility of All Theories that Depart from Original Understanding.”
Bork sees the problem as not so much a matter of bad judgment as of bad motives. The erring theorists, he is satisfied, are members of a left-leaning intellectual elite that cannot win elections and has undertaken to win lawsuits instead. These intellectual enemies of democratic government share the ideology of the very politicians and groups that opposed Bork’s nomination, including liberal Democrats and Republicans and civil rights organizations such as the ACLU. These academic and political forces believed, Bork writes, that he had to be defeated because he would have been a strong voice against the political misuse of the Constitution.
In order to defend his dramatic claims, Bork must establish, at the very least, that it is possible and desirable for judges to decide constitutional controversies without making political judgments of the sort he deplores. To do so he puts forward the old idea that judges should interpret the Constitution in accordance with what its provisions would have been understood to mean at the time they were drafted and ratified. In that view, constitutional meaning is a matter of historical fact, not the judges’ own political convictions. Fidelity to the “original understanding” of the Constitution is the only appropriate standard for the decision of constitutional cases.
“All that counts,” Bork writes, “is how the words used in the Constitution would have been understood at the time.” Any other test of constitutional meaning will invite or require constitutional judges to consult their own political convictions, and thus indefensibly favor the views of the elite political class from which judges are drawn over the views that have prevailed in the popular political process. That is the simple thesis Bork proposes to justify his own constitutional views and to confound his academic and political critics.
These critics have urged many strong objections to the original understanding thesis, however. If Bork honestly and consistently held that thesis, as he says he does, we would have to consider whether his book answers those objections, and we should then have to review the often complicated arguments of the academic and judicial theorists whom Bork so dislikes. But this is unnecessary, because in fact Bork does not hold to his own announced thesis in any serious way; while continuing to make use of the rhetoric of original understanding of the Constitution, he actually undermines that theory through various concessions and modifications. Indeed, he tacitly accepts the main objections of the very critics he ridicules, and the view that he actually defends is not so different from their own.
Bork clearly recognizes that the terse and open-ended language of the Constitution cannot by itself decide constitutional cases, even if the judge has at hand a dictionary of eighteenth-century usage. The Constitution’s very abstract provisions, which use phrases like “freedom of speech,” “due process of law,” “equal protection,” and “cruel and unusual punishment,” have, by themselves, no plain and precisely applicable meaning now and had none then, as Bork concedes.
Moreover, neither he nor anyone else who has thought seriously about the matter believes that the drafters of the Constitution and its amendments, or the generation of Americans on whose behalf these provisions were ratified, had formed in their minds shared principles that would make self-evident the exact application and the modern consequences of the abstract principles embodied in the Bill of Rights. So he concedes that his injunction to attend solely to the question of “how the words used in the Constitution would have been understood at the time” cannot be carried out either by consulting historical dictionaries or by retrieving the thoughts of long-dead politicians or voters.
Bork’s concessions on these points are explicit: at several points, for example, he observes that even so plain-speaking a provision as the First Amendment’s “Congress shall make no law…abridging freedom of speech,” has required constitutional judges to work out a complex scheme for the protection of speech, full of subtle distinctions that depend upon a wide range of interpretative judgments, which themselves depend on questions of value not answered in the text, even as it was originally understood.
Bork’s understanding of the complexity of constitutional analysis and its dependence on controversial judgments of value is revealed, for example, in his own analysis of the First Amendment. Obscene speech, he writes, does “not deserve constitutional protection.” As for so-called “subversive” speech, he has this to say:
The reason [that speech advocating the forcible overthrow of the government or speech advocating the violation of law should not be constitutionally protected]…is plain. The Constitution creates a republican form of government in which political speech is essential to arrive at consensus on various issues. Majorities make up their minds and either do or do not enact laws. In such a government, speech advocating the forcible overthrow of the government and the seizure of power by a minority has no value because it contradicts the premises of constitutional democracy. If the speech succeeds, democracy and individual freedom are at an end. For the same reason, speech that advocates violation of the law or civil disobedience is an attempt to defeat by lawlessness what the majority has decided.
He is harshly critical of the Court’s decision last year that burning the flag is a gesture of protest protected by the First Amendment, arguing:
The national flag is different from other symbols. Nobody pledges allegiance to the Presidential seal or salutes when it goes by. Marines did not fight their way up Mount Suribachi on Iwo Jima to raise a copy of the Constitution on a length of pipe. Nor did forty-eight states and the United States enact laws to protect these symbols from desecration.