The most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
For Supreme Court Justice Anthony Kennedy, writing those words in 2003, there was no higher authority to cite. He was, after all, quoting himself. Eleven years earlier, in Planned Parenthood v. Casey, Kennedy had first promulgated this misty, monstrous ode to judicial oligarchy. Back then, our robed masters were groping to rationalize the “right” to abortion they’d woven from whole cloth a generation earlier. In point of fact, nothing in American tradition even hinted that an “intimate and personal choice” to snuff out the life of an unborn child—a “choice” historically stigmatized—had all along been “central to personal dignity.” But Kennedy and four equally willful cohorts, hell-bent on making it so, were reduced to burbling about “attributes of personhood” which were purportedly unfit for regulation by a free society. Democracy? Henceforth, that ideal would be derided as “the compulsion of the state.”
By 2003 when, with transparent self-satisfaction, Kennedy was reaffirming his one-size-fits-the-universe dictum in Lawrence v. Texas, the mystery of human life at issue was gay sex. Though the practice enjoyed acceptance in many American states, the Constitution was silent on it. This was democracy in a federal system: There was no shortage of hospitable climes for homosexuals, but there was also no constitutional right to engage in sodomy. States were therefore free to permit it or not. Texans had chosen not to, a reflection of the right to self-government they’d enjoyed for a century and a half.
Democracy, however, was no match for Kennedy’s “heart of liberty.” Mirabile dictu, he and four like-minded social engineers managed to discover that gay sex was now part and parcel of “one’s own concept of existence”—which is to say their own concept of existence. Justice Antonin Scalia, a Casey dissenter who again found himself in the minority, tartly observed that this “sweet mystery of life” doctrine had become “the passage that ate the rule of law.”
Only seventeen years earlier, the same Court had concluded that no such right existed. But that was then: in the mid-1980s, to be specific—back when the locus of liberty’s “heart” was thought to be the Constitution rather than Anthony Kennedy’s private sociology lab. Kennedy was still toiling in relative obscurity as a judge of California’s notoriously eccentric Ninth Circuit. Across the country, his fellow federal appeals court judge, Robert H. Bork, grappled with the case of petty officer James Dronenburg, discharged by the Navy for homosexual conduct.
In marked contrast to Kennedy, Judge Bork was widely regarded as Supreme Court material: a nationally renowned scholar and former U.S. Solicitor General. He was also perched on the D.C. Circuit, a frequent launchpad for ascension to the high court. Perhaps more significantly, as a Yale Law School professor, he had, in 1971, authored “Neutral Principles and Some First Amendment Problems,” an academic article that stands, he now recalls, as “the first modern exposition of the idea that the Constitution must be interpreted according to the original understanding of its principles by the men who made it law.” Originalism became the judicial philosophy on which President Ronald Reagan’s influential Attorney General, Edwin Meese III, put the administration’s stamp. Indeed, Scalia, Reagan’s first Supreme Court appointment, is, besides Bork (who is nine years older), the doctrine’s best-known adherent.
Originalism is the demand that judges accept their limited role in a Republic governed by a free people. It is the recognition that, where constitutional guarantees do not embrace modern claims of individual rights, the decision whether to embrace them is reserved to the body politic and its democratic process. It is the realization that while people may evolve, documents don’t: The task of those charged with applying the Constitution is to interpret it, not perfect it, or at least conform it to the transient pieties of the now. In originalism, the “heart of liberty” is found in the common sense of the American people as expressed by their elected representatives, not in the whim of their politically insulated judiciary.
Thus, in 1984, Judge Bork declined Dronenburg’s exhortation to extend further the metastasizing right to privacy the Supreme Court had divined from “penumbras” it found floating in gnomic “emanations” from the Bill of Rights. Bork recounted that the privacy rabbit had first been pulled from the jurisprudential hat in 1965 when the justices decreed, in Griswold v. Connecticut, that states must permit the sale of contraceptives to married couples. The newfangled “zone of privacy” quickly expanded to accommodate contraceptives for unmarried couples, the Court [in Eisenstadt v. Baird (1972)] cashiering the connubial context it had emphasized, what seemed like minutes before, as the linchpin of its Griswold contrivance. As night follows day, soon came privacy’s ultimate in contraception: Roe v. Wade and its critical but oft-forgotten companion case, Doe v. Bolton (1973). Together, they installed, by judicial fiat, a regime of abortion-on-demand more radical than any in the civilized world.
Judge Bork was powerless to roll back this tide, but he refused to abide its logic. On close examination, Griswold’s vaunted penumbras were, he found, a perversion of the “unexceptional proposition” that it is “sometimes necessary to protect actions or associations not guaranteed by the Constitution in order to protect an activity that is.” For example, by shielding a political organization’s membership list from disclosure, a court vouchsafes the group’s undeniable First Amendment rights. In such circumstances, even though unstated in the Constitution, a penumbral right must be accorded; otherwise, the Constitution’s actual, enumerated rights are rendered illusory.
But the penumbral right “has no life of its own” independent of the enumerated right. Bork thus pierced the folly of Griswold and its progeny: the unjustifiable leap from the unavoidably penumbral aspects of specific Bill of Rights amendments to the fabrication of “a general right of privacy that lay outside” those guarantees (emphasis added). Absent tethering to the Constitution’s written protections, privacy would become whatever a judge subjectively thought it should be, rather than what “We the People of the United States” objectively undertook to safeguard. Bork would have none of it. Nothing prevented Americans from enacting laws to integrate gay men and women into the armed forces, but they would have to do it themselves. He would not pretend that the Constitution required it.
Three years later, in 1987, Justice Lewis Powell announced his retirement, and President Reagan nominated Judge Bork to fill the vacancy. It is the seat that was eventually taken by Justice Kennedy, and he has now occupied it for over two decades. Originalism has made way for the legerdemain of penumbras, emanations, privacy zones, and, of course, the “heart of liberty.” The result is a radical shift in American governance: from democratic self-determinism to the soft tyranny of juristocracy.
How different might things be today had the U.S. Senate honored two centuries of tradition and confirmed the impeccably credentialed nominee who was instead mugged by its Judiciary Committee? The question cannot be addressed without accounting for a silver lining. The Senate’s abysmal performance denied the nation a justice of towering intellect and abiding fidelity to the idea that is, or was, America. Yet it also unleashed Bork to pursue his true calling: He has become an unparalleled legal, moral, and ethical philosopher in a time dominated by a law-culture corrosive to moral and ethical moorings. The occasion for reflection on this legacy is upon us thanks to his latest book, A Time to Speak. It is a rich collection, drawing eclectically on a half century of courtroom jousts, legal briefs, judicial opinions, and popular articles (some of which appeared in The New Criterion).
With the election of President Barack Obama, swelling Democratic ranks in the Senate, and the resulting prospect of a federal bench stocked for the next four years by technicians of the left, the first principles that punctuate Bork’s thought merit study more than ever, especially for a conservative movement that has lost its way and that, even in better times, was never sufficiently attuned to the perils of legal subversion. Through two centuries, the judicial confirmation process had been exclusively about credentials. This was a function, now a vestige, of the judiciary’s sharply limited role in the life of a self-determining people. It was the branch that, in Hamilton’s delusive vision, would “always be the least dangerous to the political rights of the Constitution … because it will be least in a capacity to annoy or injure them.” In the Framers’ contemplation, judges would do law, not politics. In terms of qualifications, then, nothing would matter except a jurist’s competence and scruples.
On those metrics, few nominees ever presented to the Senate rivaled Judge Bork’s curriculum vitae. His accomplishments further included undergraduate and law degrees won with high honors at the University of Chicago, a stint in the Marine Corps, a distinguished private law practice during which he won renown for his mastery of antitrust law, and sixteen years as a law professor at Yale—a term of service interrupted only when, in 1973, President Richard Nixon named Bork the 35th Solicitor General of the United States.
A storm, however, engulfed Bork’s four-year tenure as Solicitor General: Vietnam, the radicalization of the academy, the politicization of the news media, Roe, unbridled judicial activism, and, most immediately, the Watergate scandal. At the height of the crisis, the special prosecutor Archibald Cox demanded the surrender of the damning tapes generated by a secret Oval Office surveillance system. Both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than execute Nixon’s directive to fire Cox. As third in line, Bork abruptly found himself as acting Attorney General and duty-bound either to carry out Nixon’s lawful but tumultuous order or to leave. Richardson and Ruckelshaus, alarmed at the domino effect they’d set in motion and the lasting damage it portended for the Justice Department, urged Bork not to abdicate. He reluctantly remained, discharged Cox, and thus triggered the “Saturday Night Massacre” that led inexorably to Nixon’s resignation in August 1974, on the cusp of impeachment.
Still, Bork’s confirmation to the D.C. Circuit in 1981 was relatively uneventful. Given that, as well as his ensuing years of stellar service on that tribunal, it was stunning even to the victorious left when, with Judge Bork’s Supreme Court nomination, the storm of 1973 exploded into the Kulturkampf from which we have never emerged. The scurrilous campaign that led to Bork’s defeat was the declaration of cultural war—a war in which Justice Kennedy has gradually moved from incidental beneficiary to the avant-garde. Indeed, the nomination battle’s inglorious mark is seared into our public lexicon with a neologism: “to Bork” is a verb now applied routinely to a nominee, superlatively qualified in every intellectual, academic, ethical, and temperamental sense, who is nonetheless slandered by the political left until his candidacy is wounded, if not annihilated.
And in the seminal case, annihilated for a very particular reason. Bork’s jurisprudence—derivatively, his conviction that, in a democracy, it is for judges to interpret and apply existing law, not invent and impose “organic” law—stands as a mortal threat to the so-called progressive project. Being intolerable to a free people, that project must be proclaimed by politically insulated judges if it is to advance at all.
Over the last half-century, the left has captured the academy and students have consequently been exhorted to see the law as an instrument of social change rather than a guarantor of social order. A litigation explosion has followed. The jurisdictional and prudential restraints against court intrusion into realms once thought beyond the judicial ken have loosened dramatically. There seems no end to subjects now perceived as fit for resolution by judges: presidential elections, economic policy, the requirements of national security, the identity of wartime enemies, the rules of professional golf, the definition of marriage, the artistic pretensions of smut, the availability of capital punishment, the unavailability of restrictions on abortion, infanticide, suicide, and euthanasia—today’s courts grapple with all these matters and so much more.
Yet, since becoming a fixture on the national stage in the early 1970s, Bork has toiled in a lonely swim against this relentless tide. His simple, eloquent message, voiced as insistently at the would-be legal activists of the right as at the left’s meliorist legions, is this: The political seduction of the law is killing American democracy.
In the span of decades, Judge Bork has expounded with clarity and brio on everything from the esoterica of antitrust law (the subject of his first book, The Antitrust Paradox) to the essential ingredients of what Bernard DeVoto called “the supreme American gift to world culture”: the dry martini (gin “straight up” with but the barest trace of vermouth—“olives are to be eschewed, except by people who think a martini is a type of salad”). “The Political Seduction of the Law,” it bears recalling, is the subtitle of The Tempting of America, the first of two enormous bestsellers—the other being Slouching Towards Gomorrah: Modern Liberalism and American Decline—with which Bork rose from the ashes of his failed nomination.
That A Time to Speak fits so seamlessly with these and other Bork books is a testament to the depth of critical thought that has always marked his examination of the law’s intricacies. The legal profession sports no shortage of nimble minds. Bork’s, however, is the rare one capable of making the complex equally accessible to the expert and the layman. He has been painstaking, moreover, in developing a coherent philosophy—such that his comparatively concise musings on the judicial role outlined in the article, “Neutral Principles,” hold up remarkably well with his book-length studies written two decades later.
Afoolish consistency being the hobgoblin of little minds, Bork is consistent in the best sense: thoughtful but not intransigent. He has never been afraid to revisit his premises, and admits error when those premises fail the test of introspection. “Value judgments,” he explains, “are subject to rational discourse and people do change their minds as a result. I have changed my mind about abortion as a result of discussion.” In fact, Bork was once (he told Time) a “conventional New Deal liberal.” As he recounts, he has modified his thinking on speech regulation, the viability of the Bill of Rights as the source of a tacit, uncharted right to individual liberty, and various other issues.
Still, the refinements wrought by self-analysis as well as public debate have led Bork to an unusual cogency. Originalism finds its vigorous rebuttals across the intellectual spectrum: in, for example, Justice Stephen Breyer’s “active liberty,” Lawrence Tribe’s unabashed politicization of constitutional law, Judge Richard Posner’s economically driven “pragmatism,” and Ronald Dworkin’s fusion of constitutional law and moral theory (which, as Judge Posner has observed, oddly accuses Bork of having no constitutional philosophy at all). Only Bork’s philosophy, however, imposes objective restraints on judicial power, rather than some sonorous camouflage for what, in the end, is merely judicial willfulness—the “heart’s desire” school of jurisprudence, as Bork puts it:
if you want something passionately enough, it is guaranteed by the Constitution. No need to fiddle around gathering votes from recalcitrant citizens.
Interestingly, this diagnosis is drawn from a 2003 First Things debate over abortion with Professor Nathan Schlueter, a right-to-life theorist from St. Ambrose University. As a citizen, Bork is passionate about the protection of unborn life. Mincing no words, while drawing the distinction between abortions and such official action as capital punishment, he bluntly says, “Abortions are killings by private persons.” Nevertheless, the law is reason shorn of passion. Where the law is concerned, Prof. Schlueter, who “invents” a complete constitutional prohibition of abortion based on a wayward reading of the Fifth and Fourteenth Amendments, is in Bork’s estimation a kindred spirit of Justice Harry Blackmun, the Roe author who “invented” abortion rights: “Though neither would care to admit the relationship, they are brothers under the parchment.”
Here, it is critical to draw the distinction, as Bork has throughout his career, between law and politics. His argument is the very opposite of the craven Mario Cuomo demurral: the familiar refrain, particularly from Catholic politicians, that, though personally repulsed by abortion, they must resist imposing their private morality on constituents (spluttered as they blithely impose articles of leftist faith on all manner of metaphysics, from climate change to affirmative action). For Bork, the political arena, with elected officials taking accountable positions, is precisely where abortion belongs. It is the courtroom where the imposition of personal moral precepts must be resisted.
Even though there had long been arguments about the point at which human life begins, the Framers did not address them, and “those who adopted [the Fifth and Fourteenth] Amendments addressed only the legal rights of persons who had been born.” Consequently, it is “absurd” to claim these provisions protect the unborn from being deprived of life by abortion:
I think it clear that the Constitution has nothing to say about abortion, one way or the other, leaving the issue, as the Constitution leaves most moral questions, to democratic determination.
He would overrule Roe, but then return the question where it belongs: “to the moral sense and democratic choice of the American people.”
Far to the contrary of his academic critics, Bork’s is a Constitution for a bold, confident, self-determining nation. The blood still boils, almost twenty-two years later, at Senator Edward Kennedy’s execrable slander of “Robert Bork’s America,” a purported dystopia, heedless of “individual rights that are the heart of our democracy,” where “women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government,” and so on. In point of fact, Robert Bork’s America has always been precisely about the true heart of our democracy: self-governance. His is a society in which judges are public servants, not masters; in which the “rule of law” commands them either to enforce abortion rights even if they find the prospect abhorrent, or to resign honorably and work with their fellow citizens to change the legal code. For all the teeth-gnashing it prompts, originalism has never been an end in itself but a means to preserving democratic self-determination.
This is the salient point typically missed by most examinations of Bork’s thought. His oeuvre is a testament to good breeding, steeped in philosophy, the arts, and other manifestations of high learning. He has written movingly about the blight of racial discrimination, praising the judicial role (if not the judicial reasoning) in overturning laws that institutionalized it. No less than Anthony Kennedy or any of today’s self-styled judicial progressives, he is a man of deep convictions. “It seems impossible,” he pointedly observes, “to live any sort of decent life without ideas about moral truth.” Undeniably, a free society is obliged to probe those ideas and seek the highest good. But as he simply states, if we are to remain a free society, it is “a corruption of the judge’s function to confuse those ideas with the law to be applied.” That statement is the fault-line that best marks how different the last twenty-one years would have been, for our law, our culture, and our democracy, had Robert Bork rather than Justice Kennedy been deciding the cases that so profoundly shape our society. Or, better, deciding who decides.
The point is elucidated by A Time to Speak’s welcome inclusion of a spirited 1992 exchange between Bork and the conservative political philosopher Hadley Arkes. Though an ardent Bork admirer, Professor Arkes is a committed adherent to natural law—“the law that is accessible to us simply through the reason that marks the nature of human beings.” For Arkes, this transcendent corpus binds jurists in a moral polity, beyond the mere written (or positive) law. Consequently Bork is taken to task for failing to appreciate what Arkes maintains is the consensus that exists regarding natural law’s content—such that, even though unwritten, we should accept natural law as a judicial compass, ensuring that its principles guide our society every bit as much as the Bill of Rights. For Arkes, hewing to legal positivism for fear of enabling judicial imperialism is tantamount to cultural relativism: the conceit that there are no presumed standards of moral judgment that cut across cultures—just those set down in the written law.
Bork disputes Arkes’s premises. There is no gainsaying that people disagree on the content of natural law. (Years earlier, Bork had aptly written, “The violent disagreements among the legal philosophers alone demonstrate that there is no single path down which philosophical reasoning must lead.”) To acknowledge the disagreements is not to deny the existence of moral truth; it is, rather, to accept that “there will be no agreed-upon moral truths that will give judges definite answers. What we will get, as law binding on us and impossible to change democratically, is the moral truth of a majority of nine justices.” That should give jurists and moral philosophers great pause. Under the cognate rubric of “substantive due process,” the Supreme Court has historically seen fit to impose not only abortion on demand but, in 1857, slavery—the tragic Dred Scott ruling, a judicial discovery of unwritten “truths” about property rights that contributed mightily to the outbreak of the Civil War.
Bork’s main target, though, is the ill-conceived conflation of law and culture. He sees it arising from a variation of theories (addressed elsewhere in A Time to Speak) that confound law and politics, or law and science: the legal imperialist’s insistence that, if something is wrong, it is insufficient that our society and its institutions hold it in ill-repute; it must further be prohibited by law. At issue is not relativism but democracy. A free society is moral, or not, by its choice, not its judges.
Legal positivism is an obligation peculiar to the latter. The ordinary citizen, in stark contrast, “must not be a legal positivist, but must seek moral truth. Otherwise, there is no way for anybody to say what the law should be, what should be enacted and what repealed.” On the one hand, in our consent-based system of government “the formulation and expression of moral truths as positive law is … a task confided to the people and their elected representatives.” On the other hand, “The judge, when he judges, must be, it is his sworn duty to be, a legal positivist.”
Bork is even more forceful in a 1994 refutation of the Claremont Institute scholar Harry Jaffa, who scoffs that Bork cannot be both a legal positivist and an originalist. The Framers, Jaffa reasons, were not positivists and “the most profound of their original intentions” was the “natural law doctrine of the Declaration of Independence.” Bork is unmoved:
The Framers were not legal positivists for the very good reason that no one who makes law can be. The lawgiver must have ideas of right and wrong that antecede the law he makes. The Framers wrote law, presumably embodying as much of their thinking on natural rights as prudence allowed, and the judge is bound to follow that law no matter what he thinks of its correspondence to natural law. That means that, in his judicial capacity though in no other, the judge must be a legal positivist. Which further means … that only a legal positivist judge can be an adherent of the Framers’ original intent.
Of course, “moral philosophy is not alien to law.” Because the Framers did “embody” natural law in the Constitution, it is a legitimate basis for judicial explication of the document’s provisions. Not, however, for transforming those provisions. Bork explains the difference. Many constitutional clauses—particularly in the Bill of Rights, which was hastily assembled to attract support for ratification in states suspicious of the Constitution’s centralized federal power—are
quite general, not meant to be taken in full literalness, and therefore dangerous in the hands of those who do not interpret such provisions in light of the principles that underlie and animate them.
The classic example, the First Amendment, is written in absolute terms: “Congress shall make no law … abridging the freedom of speech.” It has never actually meant that: Various categories of speech, such as words likely to provoke violence, have always been subject to prohibition. How are judges to know which speech is protected and which not? Plainly, by discerning the principle that underlies the clause.
The case is far different, however, when natural law is used as a substitute, either to assert a governing principle (such as the “right to privacy”) untied to any positive law to which the political community has given its assent, or to invert positive law such that it no longer means what it was understood to mean when the community gave its assent. Included in the latter category are, for example, modern arguments that the death penalty should be invalidated as unconstitutional, despite several approving references to it in the Constitution, based on an “evolved” understanding of the Eighth Amendment’s ban on “cruel and unusual punishments.”
Similarly, Bork rejects the theory that racial segregation could have been precluded by the Constitution’s guarantee, in Article IV, of a republican form of government—a contention first voiced by Justice John Marshall Harlan in Plessy v. Ferguson, the 1896 case infamous for endorsing “separate but equal” railroad facilities for black and whites.
As Bork recounts, the existence of slavery under the laws of several states was conceded by the Constitution and, indeed, the union would not have been formed absent assurance that the peculiar institution could be sustained in those places. However admirable a judicial reinterpretation of Article IV that achieved racial integration might have seemed, it would be novation. It would not be the Constitution democratically adopted. And novations, as Dred Scott should always remind us, can cut both ways. Snug in their Zeitgeist, today’s revisionists see no harm in deracinating laws from the very different assumptions that obtained when they were enacted—all for the greater good of implanting their own bien-pensant beliefs. But there will always be others, like Professor Jaffa, whose revisionism holds that because slavery was recognized by the Constitution, it was perforce mandated by the Constitution. We can’t honestly embrace some outcomes of judicial freelancing without indulging others. Better a system that evolves from error with popular legitimacy than a judicial imperialism, just as prone to error, that is nigh incorrigible.
If Bork falters, it is in seeming to walk back from his philosophy in assessing Brown v. Board of Education, the Warren Court’s groundbreaking 1954 ruling which reversed Plessy, voiding state school segregation laws as a violation of the Fourteenth Amendment’s Equal Protection Clause. Given how deep-seated the case’s appeal is, especially to modern sensibilities, Brown has long been a bête noire for originalists. In The Tempting of America (as presaged by “Neutral Principles”), Bork concedes it was “a great and correct decision”—as in “result”—but regrets the thoroughly flawed reasoning on which it rests—the court’s opinion having vaulted into fashion today’s habit of judicial legislation.
As Bork makes plain, “The inescapable fact is that those who ratified the amendment did not think it outlawed segregated education or segregation in any aspect of life.” How, then, to rationalize by original intent a result Bork enthusiastically applauds? By construing the Fourteenth Amendment as principally about equality; admitting that, whatever the amendment’s drafters may have thought about segregation, empirically it has proved inimical to equality; and, therefore, concluding that segregation had to be torpedoed to enforce the real, rather than the apparent, original meaning. It is as resourceful an explanation as one could provide, but it sits uneasily with the democratic imperative for social change in a free society, as well as the conceit that the judge’s function is to expound law not repeal evil.
Originalism is a leitmotif of A Time to Speak but by no means the sum total of its richness. A series of writings that trace back to the 1950s show Bork at the razor’s edge of antitrust law. As a practitioner and a theorist, Bork stressed first principles: Antitrust laws are designed principally to maximize consumer welfare. To accomplish this end, two types of behavior must be distinguished: the misallocation of resources, which results in less production and thus harms consumers; and the creation of efficiency, which serves consumers by increasing choices. The two are often confused because both appear monopolistic. To punish predatory misallocations without hindering efficiency (and harming the very consumers it is the law’s object to protect), judges must bring coherent economics to bear. Absent that, the law becomes an
open warrant for prosecutors to roam the business world like knights-errant, deciding for themselves, often in defiance of conventional anatomical indicia, which are the damsels and which the dragons.
In antitrust as in all else, freedom is the polar star for Bork, an “outspoken free marketer,” as he self-described in a 1998 New York Times op-ed, years after the law had finally begun catching up to where he’d been all along. Absent objective algorithms—a focus on the overriding congressional concern for consumer welfare, and “a system of understood constraints upon the values judges may consider in deciding cases”—litigation over mergers or acquisitions became ad hoc legislating: courts fretting over “human dislocations,” tax motivations, innovative commercial paper, economic restructuring, and an “amalgam of muddled thinking” euphemistically called “the social purposes of antitrust.” This, Bork argued in a 1985 speech, traduced “the judicial function in a country that is basically democratic.” A free society determines its own purposes.
Paramount among those purposes, of course, is the nation’s security. In that regard, Bork has been trenchant in addressing the limits of international law, especially in matters involving the use of force. Yes, judicial impositions of morality are to be resisted, but democratically enacted law remains a reflection of a society’s moral sense. Of international law’s many follies, the greatest is its moral vacancy. In order to be adopted internationally,
rules about the use of force between nations must be acceptable to regimes that operate on different—often contradictory—moral premises. The rules themselves must not express a preference for freedom or tyranny or for elections over domestic violence as the means of coming to power.
To sustain this idea of a governing law in the international arena, the price is acceptance of this moral equivalence.
Is law such a value that its simulacrum is worth preserving for the sake of having value-neutral rules acceptable to both democrats and brutes? The Pollyannas say “yes,” claiming it may deter the tyrants and terrorists from attacking. Bork finds this strategy as promising as “preaching the ideal of the rule of law to the Medellin cartel,” in hope that Colombia’s drug lords, “worn down by the rhetoric of idealism,” will eventually submit. Whatever dubious benefit is served by such aspirations, in practical terms the elimination of moral content “makes moral action appear immoral.” American measures in defense of besieged emerging democracies are preposterously limned as “violations.” International law serves primarily as a propaganda tool: “a basis for a rhetoric of recrimination directed at the United States.”
That aside, there is bitter disagreement about the substance of international law, at least beyond areas covered by simple, written treaties. American courts—at least until recently—have stayed their hands from disputes involving vital national interests and foreign relations, cognizant that such matters are “inherently political . . . not fit for judicial resolution.” Yet, transnational progressives would have us entrust them to foreign courts under a loopy notion of “universal jurisdiction.” Or, worse yet, surrender them to such international tribunals as the “World Court” (the portentous moniker for the U.N.’s International Court of Justice)—a body sitting, Bork wrote in 1989, “on another continent, made up predominantly of jurists from foreign nations, and elected by an international body” whose default position is hostility to the United States. Meanwhile, the post-nationalists cheer as the Supreme Court selectively mines foreign law to construe our Constitution (or, if you will, unfold its “concept of existence”). The exercise, Bork sagely warns, imperils “our sovereignty and our freedom.”
Of all the wisdom that overflows from A Time to Speak, it is a thirty-year-old essay, “The Impossibility of Finding Welfare Rights in the Constitution,” that readers may find most relevant. In the waning weeks of last year’s presidential campaign, it emerged that Barack Obama, as an Illinois state legislator, had lamented that the Warren Court “wasn’t that radical” after all. It had, to his mind, failed to take on “the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society.” Obama, whose ardor for the “living” Constitution is no secret and who opined throughout the campaign that his judicial nominees’ most important attribute would be “empathy,” faulted the high court for declining to “break free from the essential constraints” he acknowledged were “placed by the founding fathers in the Constitution.” Our fundamental law thus remained “a charter of negative liberties”—one that says only what government “can’t do to you.” For the President, economic justice cries out for the positive case: what government “must do on your behalf” (emphasis added).
“Positive liberty” is old wine in a new bottle, fermented in the mid-1970s by, among others, the Harvard scholar John Hart Ely, who eschewed Bork’s “interpretivist” approach in favor of a theory dubbed “representation-reinforcement.” Ely believed Article IV’s Privileges and Immunities Clause and the Ninth Amendment invited judges to create new rights. He theorized, Bork recounts, “that people will have better access to the political process if their basic needs are met.”
As Bork demonstrates, the concept is factually dubious and fundamentally undemocratic. Whatever was meant by “privileges and immunities” and other undefined rights—and the Framers themselves were indeterminate on the matter—there is “not a scintilla of evidence” that by conceding the existence of unspecified rights, those who wrote and ratified our Constitution were directing that theretofore unknown rights be created, much less created by the courts. The Constitution contains no hint of such a novel idea, and—as Obama implicitly admitted in his 2001 remarks—even the most activist of Supreme Courts never claimed such license.
More to the point, the Constitution is, as Obama put it, a “charter of negative liberties” because the framers feared government’s propensities toward injustice and excess. Its power to act against us was thus sharply limited in various specified ways. In terms of giving, however, government has at its disposal only what we provide it. It cannot give to some without taking from others.
Representation-reinforcement is factually suspect in any event: It is anything but clear “that people at the lower end of the economic spectrum need assistance to be represented adequately”—or that the provision of welfare is apt to make them better citizens as opposed to reducing them “to a condition of dependency so that they are not the active and independent political agents that they ought to be.” But new rights create new obligations: winners and losers. Consequently, representation-reinforcement is an internally contradictory concept, one Bork says “tends to devour itself” because
it calls upon the judiciary to deny representation to those who have voted a particular way to enhance the representation of others.
What is “reinforced,” he warns, “is less democratic representation than judicial power and the trend toward redistribution of goods.”
Of course, the power to remake American society ever more radically has become ever more appealing to judges in the decades since Judge Bork was denied his rightful place on the watch. Our magistrates are “Olympians on the March,” to borrow from his memorable 2004 essay in The New Criterion. Drawing on the political philosopher Kenneth Minogue, Bork explains,
Olympianism is the project of an intellectual elite that believes it enjoys superior enlightenment and that its business is to spread this benefit to those living in the lower slopes of human achievement.
The Supreme Court has sadly become its “heavy artillery and panzer divisions in the culture war,” reducing constitutional law from an intellectual discipline to “a series of political impulses.”
A Time to Speak reminds us, yet again, that Robert Bork has been this nation’s most eloquent and compelling Cassandra. Whether America rediscovers and retains what has made it great depends on whether we finally listen, and look within.
- A Time to Speak: Selected Writings and Arguments, by Robert H. Bork; ISI Books, 738 pages, $18. Go back to the text.
This article originally appeared in The New Criterion, Volume 27 Number 6 , on page 11
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