[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning,' to work at 'finding the law' instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court. Robert Bork, Fortune December 1968 p.140-1....
As I went further back into Mr. Bork's intellectual history, I discovered that the arguments in his most recent book followed a formula developed in his earlier writings... a lapsarian pattern.... A state of corruption and decay is identified in some institution or area of law. The rot is traced to a particular departure from the proper state of affairs, a willful violation of an authoritatively decreed scheme of things. A method is prescribed by Mr. Bork which will allow us to escape our current fallen state and return to a condition of righteousness. Mr. Bork speaks strongly in favour of his method, pronouncing it 'inescapable' or 'unavoidable.'... Eventually, he falls silent for a while, only to emerge in two or three years with some new, and newly ineluctable, redemptive method. The process then repeats itself... in the past he has been, successively, a libertarian, a process theorist, a devotee of judicial restraint, a believer in neutral principles, a 'law and economist' and an advocate of two distinct forms of originalism. At the time, each of these theories was offered as being the only possible remedy to the subjectivity and arbitrariness of value judgements in a constitutional democracy and the other theories he had held, or was about to hold, were rejected out of hand...
[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning,' to work at 'finding the law' instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court. Robert Bork, Fortune December 1968 p.140-1.
As you might guess from the title, Mr. Bork's latest work, The Tempting of America(2) , is a book about the Fall -- both America's and Mr. Bork's own. It will not surprise many readers to find that the two are linked, or that the 'temptation' to which Mr. Bork refers is that of politics. In particular, he warns us of an increasing politicisation of the American legal system. This politicisation is caused primarily by judges who desert the original understanding of the constitution and, under the guise of 'interpretation,' attempt instead to impose their own individual notions of justice on the cases before them. Mr. Bork conveys these messages in a book which is part autobiography, part legal theory and which was inspired by the ordeal which brought him to fame: the Senate's judicial confirmation process. In his case, of course, it was actually a process of denial. Unfortunately, so is the book.
Although this article was prompted by the publication of The Tempting of America, its subject is wider than that book alone. As I went further back into Mr. Bork's intellectual history, I discovered that the arguments in his most recent book followed a formula developed in his earlier writings. Like The Tempting of America, Mr. Bork's other work follows a lapsarian pattern -- a tale of a fall from grace, coupled with a strategy for redemption. A state of corruption and decay is identified in some institution or area of law. The rot is traced to a particular departure from the proper state of affairs, a wilful violation of an authoritatively decreed scheme of things. A method is prescribed by Mr. Bork which will allow us to escape our current fallen state and return to a condition of righteousness. Mr. Bork speaks strongly in favour of his method, pronouncing it 'inescapable' or 'unavoidable.' Yet it is obvious that Mr. Bork's panacea has all the same features as the disease it is supposed to cure. At first, Mr. Bork offers a lengthy and thunderous denial that the cure is indistinguishable from the disease. Eventually, he falls silent for a while, only to emerge in two or three years with some new, and newly ineluctable, redemptive method. The process then repeats itself. Readers familiar only with Mr. Bork's most recent writings will be surprised to find that in the past he has been, successively, a libertarian, a process theorist, a devotee of judicial restraint, a believer in neutral principles, a 'law and economist' and an advocate of two distinct forms of originalism. At the time, each of these theories was offered as being the only possible remedy to the subjectivity and arbitrariness of value judgements in a constitutional democracy and the other theories he had held, or was about to hold, were rejected out of hand.
The Tempting of America is, in one sense, the weakest and most obviously flawed of Mr. Bork's panaceas. He criticises contemporary liberal constitutional jurisprudence for being arbitrary, politically biased, indeterminate, and a-historical. Yet his prescription for cure -- the philosophy of original understanding -- is even more obviously possessed of these flaws. Indeed, as the quotation at the head of this page demonstrates, in an earlier incarnation he himself had dismissed it as 'naive.' Mr. Bork's rhetoric of denial must thus be correspondingly stronger and more thunderous. Yet in another sense, The Tempting of America may mark a departure -- albeit a fragmentary and contradictory one -- from the endless process of denial. Instead, it marks a shift to a different form of conservative thought, one that could be called either pre- or even post-modern. For these reasons, among others, it behooves us to pay more attention to Mr. Bork's most recent argument than its surface confusion and dogma might first appear to deserve. It is to that argument I now turn.
Every Eden has its own forbidden fruit, its own great serpents. Mr. Bork's forbidden fruit is politics, his serpents are a liberal elite in legal academia. More broadly, the villains of the piece are the 'intellectual or knowledge class', those 'who work, however adroitly or maladroitly, with words and ideas.' (p. 8) This class 'tend[s] to have values antagonistic to a traditional, bourgeois society. It is not too much to say that these people see the Constitution as a weapon in a class struggle about social and political values.' (p.8) Despite the fact that he appears to work (however adroitly or maladroitly) with words and ideas, Mr. Bork is not a card-carrying member of this knowledge class. Like Karl Marx, he has managed to escape from the class-determined attitudes he, himself, describes.
For this, we can only be thankful.
Mr. Bork's plot is a relatively simple one. The knowledge class comes to realise that the values of the real Constitution (as interpreted by the Framers, their contemporary audience and Mr. Bork) are hostile to their predilection for sexual freedom and egalitarian social reform. Unwilling to accept this limitation on their desires, they decide(3) to subvert the true meaning of the document. They have a number of strategies to achieve this goal, including political opposition to judges who do not share their ideas of the constitution. Understandably, Mr. Bork thinks this a particularly pernicious thing to do. But the liberal elite is not content merely to block those with whom they disagree (p. 10). They wish to transform constitutional debate, to marginalise originalism by treating it as just one method of interpretation among many, perhaps to root it out altogether. The knowledge class is helped in their 'heresy' (p. 7) by a number of well-meaning, but unsophisticated judges who yearn to do justice, a public unwilling to listen to discussions of constitutional theory and a perverse judicial tendency, stretching all the way back to Marbury vs. Madison, occasionally to ignore the manifest good sense of the philosophy of original understanding.
The knowledge class's success has cost the law dearly in terms of legitimacy. 'Since the politicization of law has, for half a century, moved results steadily to the left, a very large number of Americans do not like those outcomes.' (p. 2) The Tempting of America is, in effect, a clarion call which warns the general public of the dangers if we continue down this road and seeks to rally them around the flag of originalism. It should be noted that originalism does not mean original intent. Mr. Bork used to think that it was blindingly obvious that the true meaning of the constitution was determined by original intent of the Framers. Now he finds it equally obvious that the Framers' intentions are irrelevant and that the true meaning of the Constitution is determined by the way it would have been understood by an audience at the time it was written. This new position is so obvious to Mr. Bork that he doesn't mind imposing it on candidates for the judiciary. Indeed, '[o]ne purpose of this book is to persuade Americans that no person should be nominated or confirmed who does not display both a grasp of and devotion to the philosophy of original understanding' (p. 9). At this point, one might legitimately ask, although Mr. Bork does not, 'isn't this the very thing for which you so castigate the liberals? Isn't this the imposition of a politically based loyalty oath for judicial method?' Mr. Bork's response seems to boil down to an assertion that his method is right.
I suspect that many reviewers will end their reviews here, satisfied with a job well done, another dogmatist exposed. This, I think, would be a mistake. It is true that the arguments advanced here are shallow, dogmatic, a-historical and logically flawed. They also contradict Mr. Bork's own past writings. But this is only part of the story. There are two sides to Mr. Bork's argument. The first and most obvious is an unsuccessful but relatively conventional attempt to satisfy the requirements of liberal rationalist social thought. In other words, an attempt to prove that the theory of original understanding is neutral, objective, free from prejudice and, in general, a rational analysis of the social world. The second and less obvious side of the book is the more interesting. Scattered throughout this work are fragmentary arguments and statements which, if pieced together, could represent a fundamental conservative challenge to the framework of liberal rationalism, the very framework into which Mr. Bork has been trying to shoehorn his ideas. This challenge could be described as Burkean conservatism, after its great 18th century progenitor, but that name should not be taken to imply that it is of only historical interest. Given its low opinion of the value of rationality, its critique of liberal epistemology and its cut and paste approach to historical tradition, it could, with equal justice, be called 'post-modern conservatism.' Because it does not fit within the ruling epistemology, most readers will not even recognise this second argument as an argument. It is for exactly that reason that it deserves our attention.
Thus, rather than rejecting this book out of hand as a poorly argued apologia for an unconvincing constitutional philosophy, I think we should see it as an important and frequently touching work which reveals much about two fascinating subjects.
First, it tells us a great deal about the relationship between conservative ideology and the law, an issue which, given the current composition of the Federal Bench, is likely to be of considerable interest for the rest of our natural lives. The Tempting of America will take its place as the leading exposition of the philosophy of original understanding. For reasons I will give later, originalism is likely to be the only conservative legal theory with significant appeal to a mass audience. Thus, Mr. Bork's book has considerable political and iconographic significance.
Second, and perhaps more interestingly, it presents us -- albeit in confused and contradictory form -- with a strand of conservatism long neglected in the United States, a strand known by the name of its most famous propagandist, Edmund Burke. Thus, it gives us the opportunity to examine a striking historical parallel. Writing against the French Revolution, at the beginning of 'the age of reason,' Burke spoke out in favour of established hierarchies, a-rational tradition and against the 'delusive plausibilities of moral politicians,' or the hubris involved in trying to understand the social world with aid only of the 'frail and feeble' instrumentalities of reason. Mr. Bork, writing in a post-modern era which has been hailed by some as the twilight of reason, strikes exactly the same chords, though with less style and assurance. Is this a return to a pre-modern, or even the rise of a post-modern conservatism(4)?
The structure of this article roughly follows that of this section. I will begin by discussing Mr. Bork's importance to current conservative legal theory.(5) After concluding that the theory of original intent (and to a lesser degree, of original understanding) is one of the most popularly acceptable of the available conservative legal theories, I will devote the middle portion of the article to an examination of the intellectual odyssey which led Mr. Bork to make his way through each of those theories before holding the ideas he does now. Having shown how Mr. Bork developed his ideas about original understanding, I will examine their correctness on interpretive, historical and logical grounds. After demonstrating that Mr. Bork's most recent theory fails each of the tests set it, I will discuss the structure that it has in common with his earlier work. Finally, using that structure as a tool, I will develop the part of his current ideas which challenges the epistemology of liberal rationalism and discuss its possible significance for conservative thought in general.
II Bork and Conservative Legal Theory
There have been enormous strides in conservative legal theory in recent years. They were sorely needed. With some notable exceptions(6), conservative legal thought once consisted largely of bombast, red-baiting and formalism. In the last fifteen years, that situation has changed dramatically. A number of distinct schools of conservative legal thought have appeared, providing conservative judges, administrators and policy makers with a wealth of contradictory but persuasive advice on how best to use their newly acquired power. Mr. Bork's book is best read as the leading statement of one of these schools. To understand its importance we must look first to the competition.
One of the most obvious contributions to conservative legal theory comes from the economic analysis of law. The Chicago school of law and economics has reconceptualised the legal system as a 'rights market,' where decision makers are asked to allocate rights to the person who would pay the most for them under conditions of perfect competition.(7) This has the happy effect of favouring the rich over the poor, and all in the name of science. It also means that we can extend the ideology of the market to the last few areas, such as adoption, civil rights and the criminal law, which still have the temerity to resist it. In case anyone should imagine that this is a merely academic movement, it should be remembered that its chief proponent is now a federal judge. It is also instructive, if not actually frightening, to find that half of all federal judges have already attended corporate funded courses in law and economics, arousing in the process considerable concern over the ethical propriety of their actions.
Alternatively, for those less enamoured of the dismal science, there are libertarian legal theories which demonstrate that the New Deal is unconstitutional. So too are the minimum wage, worker's compensation, rent control, Social Security and progressive taxation. In the brilliantly evoked world of libertarian legal theory, the takings clause is the centre of the constitution and the judiciary has an obligation to move towards a minimalist state by striking down everything within the reach of that clause. Happily for the libertarians, it turns out that almost everything is a taking. 'All regulations, all taxes, and all modifications of liability rules are takings of private property prima facie compensable by the state.'(8) Sadly, the libertarian concern for takings of private property does not extend to those who have suffered the greatest past losses -- Native Americans and Afro-Americans, in particular.
Both law and economics and libertarianism require a degree of 'judicial activism' which tends to undermine the notion that conservatives are automatically proponents of 'judicial restraint.' Perhaps this has something to do with the knowledge that, by now, the overwhelming majority of current federal judges have been appointed by conservative presidents. Nevertheless, there are still those who believe that the first job of a conservative legal theory is to limit the power of the judiciary. To this end it has been suggested that Congress should be capable of overruling Federal or Supreme Court decisions, or that a seven member majority on the Court be necessary to strike down Federal or State law.(9) There have also been unsuccessful attempts in Congress to make it an impeachable offense for federal judges to order governmental expenditures for a specific purpose, when a legislature has not authorised and appropriated funds for that purpose.(10) Those who prefer brief solutions will like the suggestion that Congress should simply remove 'controversial political and social questions from the appellate jurisdiction of the Supreme Court.'(11) The author who brought the whole list of suggestions to my attention commented sagely that this last one was a 'good, but partial, answer to the problem.'(12) Since every issue which comes to the Supreme Court seems like a controversial social issue to someone, such a solution would also have the indirect benefit of making a valuable plot of prime Washington real estate on First Street N.E. available for development.
There are other conservative groups, of course. Social conservatives have been less prominently represented in the academy, but no less influential in decision-making. They have led the attack on Roe vs. Wade, convinced the Supreme Court that there is no constitutional bar to criminalising all sexual acts beyond the (heterosexual) missionary position, persuaded the Justice Department to argue against affirmative action, and held out the possibility that divorce should be restricted and perhaps abolished. 'In a case of a traditional church marriage, where the couple has exchanged the usual vows `for richer for poorer, in sickness and in health, till death us do part,' there is no reason why they should not be held to their contract.'(13) A passage from the same work gives some notion of the social conservative attitude towards equal opportunity law and women's rights.
The strains imposed on the family by equal opportunity are enormous -- husbands competing with their own wives, men and women entering into marriage 'so long as love shall last,' mothers feeling compelled to abandon their families for a career or to satisfy their sexual appetites. The real effect of this collective delusion of women's rights is only to reduce the once sovereign family to a support system for various governmental agencies.(14)
On the strategic level of national politics, Bork's book is important precisely because so many people would find these other conservative legal movements to be either too complicated or too wacky. Perhaps both. I hasten to say that this is not a judgement about the actual merits of conservative ideas. Judge Posner gets justifiably upset when people ignore the rest of his brilliant and prodigious opus and focus only his baby-selling article, even comparing his suggestions to Swift's A Modest Proposal. There is certainly intellectual substance to the idea that markets ration scarce resources -- in this case, babies -- better than do bureaucracies. Nevertheless, there is an undeniable reaction of moral and emotional outrage at economic discussions of the efficient level of crime or the economics of the baby shortage. The depth of outrage at suggestions like this makes it likely that, as a popular national platform for conservative legal reform, law and economics has even less chance than bimetallism. Behind the scenes, of course, it is likely to be more and more important.
As for the libertarian ideal most brilliantly stated by Professor Epstein, it is certainly true that property exercises a peculiar fascination over the affections of mankind. Nevertheless, it is hard to imagine a political or legal movement built around the idea that the New Deal is unconstitutional, or that the Takings clause is the center of the constitution. An unalloyed philosophy of judicial restraint is likely to have the same fate -- particularly when it is preached to conservative judges revelling in their new found powers. When it comes to social conservatism, this may be a reflection of my own biases, but I have found that a lot of Americans and not merely the members of Mr. Bork's knowledge class, have a yen for sexual freedom and 'the delusion of women's rights.' The author who used that phrase and then suggested abolishing divorce, described his creed in the following way; 'when a Southerner calls himself a conservative, he is usually thinking of a way of life, of a social and moral order for which the people of the 1860's went to war.'(15) Correct me if I am wrong, but wasn't the name of that social and moral order, 'Slavery'? While I can believe much of American politics, I cannot believe that slavery, or baby-selling, or even the abolition of the New Deal (shortly followed by the Supreme Court) would form the basis of an extraordinarily popular conservative legal movement. And that is where Mr. Bork comes in.
Mr. Bork's book is tailor-made for popular appeal. It is weighty enough to convince those who are not familiar with the material he discusses and shallow enough to be capable of quick summary in a talk show or newspaper article. As I will show in the next section, the arguments against his ideas are overwhelming, but they are sometimes complicated or require actual historical knowledge to substantiate them. For these reasons they are unlikely to prosper in the orgy of narcissism, cliche and half-truth which masquerades as public debate on the nation's airwaves. But any detailed, scholarly or merely honest analysis of Mr. Bork's ideas reveals a jurisprudence of dogma and sound-bites and a version of history which bears the same relationship to the Framer's ideas that Busch Gardens bears to Europe.
In one view, perhaps the dominant view, Mr. Bork's most recent book is an alternately defensive and opportunistic response to the confirmation hearings. The story goes something like this. 'Mr. Bork is a thoughtful legal scholar and must surely recognise the problems in his ideas. He himself used to criticise originalism, before it became flavour of the month at the Justice Department. Yet consider the alternatives open to him. He can acknowledge that his theory of constitutional interpretation is both incoherent and unworkable and thus retrospectively legitimate the painful criticism to which he was subject during the hearings. Alternatively, he can turn his back on scholarship and real history, becoming instead a revered video pundit of the right, complete with scars got in honourable battle and a theory that can be explained between commercial breaks. Who can be surprised when he chooses the latter course? Who can be surprised to find that his theory fails to confront the objections raised to it? Who can be surprised that his book consists instead of a process of denial -- denial of philosophical problems, historical problems, logical problems, and finally, denial of personal inconsistency?'
Yet there is another way of viewing this book. Perhaps The Tempting of America should not be seen as merely a defensive and disingenuous product of the confirmation hearings. Instead, it is the culmination of a prominent conservative's intellectual odyssey, the end of a trek through each of the prevalent schools of conservative legal thought. In the next section I will suggest that Mr. Bork has measured each of the ideas he has held by its ability to offer a coherent conservative vision of how a society is to be run if values are not subject to rational discussion. If this is true, then the fact that he ends up with the theory of original understanding is particularly fascinating. Surely this theory is the weakest of them all? Let us turn to Mr. Bork's odyssey and then ask the question, what does originalism offer that these ideas do not?
III Is Bork a Borkean?
Mr. Bork has had a colourful career. Before becoming a judge, he was a practicing lawyer, a law professor at Yale and then a Solicitor General of the United States. His term in the latter office 'included some duties not listed in [the] job description, among them writing briefs against Vice President Spiro Agnew... and the firing of Special Prosecutor Archibald Cox in what was known as the Saturday night massacre.' (p. 272) Certain members of the knowledge class suggested during Mr. Bork's confirmation hearings that the latter act did not reflect well upon him. He feels, however, that '[t]hese are stories that may be left for another time' (Id.). I will bow to his wishes, turning instead to the changes in his intellectual position over the last twenty five years.
Mr. Bork's intellectual history is a fascinating odyssey, an odyssey in which one can see all of the major theories of twentieth century conservative legal thought. One can see them, because at one time or another, Mr. Bork has held them all -- and always passionately. In this sense, he is a conservative Everyman, holding each of the conservative ideologies in succession. My aim is not to criticise Mr. Bork for changing his position. Consistency is the hobgoblin of small minds, after all. Nor is the point simply that Mr. Bork's tendency to describe each of his views as inevitable tends to deflate the credibility of his most recent such declarations. Instead, I think that Mr. Bork personal odyssey presents the development of conservative legal thought in microcosm. As we will see, this makes his current position all the more interesting.
In 1963, when conservatives were worried that Congress might force white folks to open their hotels and restaurants to black folks, Mr. Bork was a libertarian with a high regard for individual freedom of association. He had this to say about the Interstate Accommodations Act:
The legislature would inform a substantial body of the citizenry that in order to carry on the trades in which they are established they must deal with and serve persons with whom they do not wish to associate.... The fact that the coerced scale of preferences is said to be rooted in a moral order does not alter the impact upon freedom. In a society that purports to value freedom as an end in itself, the simple argument from morality to law can be a dangerous non sequitur.... The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.(16)
Five years later, when he wrote 'Why I am For Nixon,' and 'The Supreme Court Needs A New Philosophy,'(17) Mr. Bork's judicial philosophy was largely cast in the form of a critique of the Warren Court, whose result-oriented jurisprudence had tempted judges with a knowledge they were forbidden to possess. The latter article is particularly interesting. In it, Mr. Bork argued that '[t]he Warren Court... challenges us to think again whether there is or can be any substance to the distinction between law and politics.'(18) The article goes in search of some theoretical basis for that distinction. He concluded that it is 'naive' to take the position which he now espouses and insist simply that the Court 'give the Constitution its `true meaning.' The possibility implied by those comforting phrases does not exist.'(19) In a passage which will surely surprise some of his more recent readers, he even quoted Robert Penn Warren for the truth of the legal realist view of law.
Every thoughtful working lawyer has shared the insight expressed by Willy Stark, the Huey Long-like politician in All the King's Men and a legal realist if ever there was one. 'The law, he said `is like a single-bed blanket on a double bed and three folks in the bed and a cold night. There ain't ever enough blanket to cover the case, no matter how much pulling and hauling..' The question, then, is not whether courts should make law, but how and from what materials.(20)
Answering his own question Mr. Bork tried, and rejected a number of alternative 'materials.' Relying on the traditional materials, 'the text of the Constitution, history and precedent[,]' will not solve the realist dilemma. '[S]ometimes they dictate results. But more often these sources suggest that the Court must enter a field and yet do not answer the important questions found there.' Probably the most striking passage is the one quoted at the beginning of this article, in which he specifically rejects the originalist position. 'History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court.'(21) He concluded that Willy Stark and the Yale legal realists were 'dead right about the inadequacy of the traditional sources of law.'(22)
The new philosophy Mr. Bork offered was an interesting hybrid. It can best be described as a kind of process theory which combined a Bickel-like argument for judicial restraint with a Wechslerian argument for judicial activism when necessary to safeguard deductively generated 'natural rights'. Mr. Bork stitched these disparate elements together with his normal conviction and self-assurance.
Where the Constitution does not thrust it into a field, a restrained Supreme Court would deal with the processes by which the policies of representative institutions are made and applied, rather than with the substance of the policies. Intervention coupled with refusal to pass on substance does not entail a contradiction.... In his book The Least Dangerous Branch, Professor Alexander Bickel of Yale has analyzed the rich and subtle repertory of judicial techniques available to educate, to frame, and expose issues for other branches of government, to require them to face up to hard choices and their consequences. Restraint entails not so much a reduced as a different role for the Court, one better suited to democratic society than the role now played by the Warren Court.(23)
The traditional conservative's preference for judicial restraint is subject to the Madisonian imperative that the court intervene in order to protect minorities from majorities.
A desire for some legitimate form of judicial activism is inherent in a tradition that runs strong in our culture, a tradition that can be called 'Madisonian.' We continue to believe that there are some things no majority should be allowed to do to us, no matter how democratically it may decide to do them... [T]here are some aspects of life a majority should not control... coercion in such matters is tyranny, a violation of the individual's natural rights.... Clearly, the definition of natural rights cannot be left to either the majority or the minority.... This requires the Court to have, and demonstrate the validity of, a theory of natural rights.(24)
The theory of natural rights turns out to be more 'conventional' than 'natural.' 'Working in the method familiar to lawyers trained in the common law, the judge can construct principles that explain existing constitutional rights and extrapolate from them to define new natural rights.'(25) Having rejected as 'naive' a search for the historically defined lines the elder Mr. Bork will find so easily, the younger Mr. Bork offers more intangible,
intersubjective' constraints on this process. 'In proceeding to derive new rights, the courts must be controlled by the methods and disciplines that lawyers call craftsmanship.... Only in this way, so far as I can see, can we begin to meet the plea made by Professor Herbert Wechsler of Columbia forneutral principles' of constitutional law.'(26)
If readers are a little surprised by this realist, activist Bork, who begins his analysis from the necessity of courts making law, they will also be surprised by the 'neutral' set of natural rights he managed to 'derive.' In 1968, it was obvious to Mr. Bork that the First Amendment, correctly interpreted, protected not only political but non-political speech.(27) The implications went much further, however.
[N]on-political speech too, of course, is entitled to some degree of constitutional protection. Brandeis cited other values of speech that are not unique to the political variety. For both speaker and hearer, speech may be a source of enjoyment, of self-fulfillment, of personal development. It is often mundane or vulgar or self-serving, but it may be exalted, inspired by the highest motives. It may affect attitudes that ultimately impinge on the political process. All this has implications that, though generally overlooked, seem inescapable. For in these respects nonpolitical speech does not differ from nonverbal behavior, whether it customarily bears the label 'sexual,' 'economic,' 'artistic,' or some other. One could argue, then, that all human behavior should be entitled to the same level of constitutional consideration, the same judicial scrutiny of governmental regulation, that is currently afforded to nonpolitical speech.(28)
After generalising First Amendment protection to all human behavior, Mr. Bork modestly offered a way to draw a line between the wishes of the majority and the rights of the minority.
[M]oral disapproval alone cannot be accepted as a sufficient rationale for any coercion... The Court can draw a line, applicable to many more situations that the 'right of privacy' enunciated in Griswold, by ruling that the majority may prohibit morally or aesthetically offensive nonpolitical behavior where the public must observe it, but cannot reach conduct out of sight on such a rationale. Both majority and minority may feel some pain at their respective limitations, but the line does preserve an enclave of freedom while minimizing the pain felt by the majority.(29)
There is a certain poignancy in this confident display of Mr. Bork's libertarian persona, akin to the emotions produced when one sees photographs of some doomed individual, still full of vigour, unaware of the fate that awaits him. By 1990, Mr. Bork will believe that a majority must legislate morality if it is not to 'dissolve social bonds.' In 1968, however, the doomed libertarianism could hardly have been more vigorously championed. At that moment, a constitutional order created by Mr. Bork would probably most closely have resembled Professor Epstein's world, where 'all regulations, all taxes, and all modifications of liability rules are takings of private property prima facie compensable by the state'(30) and where the acceptable reasons for state intervention in individual behaviour are few indeed. This position is merely the logical conclusion of the ideas he had held in 1963 when he called the prohibition of racial exclusion in public lodging an idea which embodied a 'principle of unsurpassed ugliness'(31) because of it interfered with individual liberty. It is hardly surprising, then that five years later, he thought it 'inescapable' that all human behavior should be granted constitutional protection of the same kind as non-political speech. The quotation above is perhaps the clearest example of the direction of his thought. Notice how he is careful to carve out a sphere of private action free from public moral regulation. The majority can interfere on moral grounds only in what it can see, and even there, we have lower level First Amendment protection. It is interesting to ponder the implications. Bowers v. Hardwick would certainly be overruled under this philosophy, and there would be an overwhelmingly strong argument in support of Roe v. Wade.(32)
But after this five year period of holding to the same line, Mr. Bork's peripatetic intellectual convictions were straining at the leash. By 1971, the libertarian side of Mr. Bork's ideas had gone into decline and reliance on Wechsler's theory of 'neutral principles' had correspondingly increased. The change was anything but subtle, although each position he held he described as unavoidable. Three years earlier he had believed it inescapable that the First Amendment covered all human behaviour -- whether sexual, economic or artistic. Yet in his 1971 Indiana Law Journal article, he could not see how to avoid the conclusion that the First Amendment only covered political speech, narrowly defined.(33) The libertarian side appeared to have disappeared altogether. Mr. Bork confessed nobly to his change of heart, at least insofar as it implied a reversal of his position over Griswold v. Connecticut. In 1968, together with other commentators, he had thought that case 'a salutary demonstration of the Court's ability to protect fundamental human values.' In fact, he offered a principle that went even further. By 1971 he felt it was an 'unprincipled decision,' both its derivation and its definition being 'utterly specious.'(34) The only 'extenuation' he could offer for his change of heart was that 'at the time I thought, quite erroneously, that new basic rights could be derived logically by finding and extrapolating a more general principle of individual autonomy underlying the particular guarantees of the Bill of Rights.'(35)
As Mr. Bork's libertarian sentiments were gradually disposed of in the name of 'neutral principles,' his ideas about interpretation were undergoing a similar metamorphosis. In 1968 Mr. Bork had thought it 'naive' to imagine we could solve our problems merely by appointing judges determined to give the constitution its 'true meaning.' 'The possibility implied by these comforting phrases does not exist...'(36) In fact he had specifically pointed out that an originalist historical search told us 'too little about the specifics.' At that time, he gave as an example the difficulty of determining the level of generality of the Fourteenth Amendment. 'History shows us that the equal-protection clause (ratified a few years after the Civil War) grew out of a concern about racial equality, but in crucial respects the record leaves us unsure what was meant by equality and how far beyond race the guarantee was intended to reach.'(37) Does it mandate 'black equality,' 'racial equality' or some wider vision? In 1971, history had become considerably clearer. Mr. Bork could say '[O]ne thing the Court does know: [the fourteenth amendment] was intended to enforce a core ideal of black equality against governmental discrimination.'(38) As the years passed the record was to become clearer still.
In 1980 Paul Brest made the same criticism Bork himself had made against original understanding in his 1968 article; it leaves open the level of generality of the constitutional provision, and therefore the judge must choose a level of abstraction. When Mr. Bork responds to this article in 1990, the minor methodological problems which had caused him to see indeterminacy in texts, precedents and historical records are obviously a thing of the past. 'The role of a judge committed to the philosophy of original understanding is not to `choose a level of abstraction.' Rather it is to find the meaning of a text -- a process which includes finding its degree of generality, which is part of its meaning.' (p.149) The methodological confidence is accompanied by some interesting substantive convictions. Women and gays will have to make do with a lower level scrutiny as to whether any discrimination is 'reasonable.' In the latter case, at least, it almost always will be. 'Social treatment of homosexuals is based upon moral concerns and it would be difficult to say that the various moral balances struck are unreasonable.'(p. 150) I fear I am stressing the obvious, but this is a far cry from the libertarian who wanted to broaden the protection offered by Griswold to all human behaviour.
As Mr. Bork's libertarianism waned and his theory of interpretation changed, an associated shift in his moral epistemology was taking place. Two sentences from his famous Indiana Law Journal article manage to sum it up. 'Unless we can distinguish forms of gratification, the only course for a principled court is to let the majority have its way in both cases... 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.'(39) In a footnote he elaborates. 'The impossibility is related to that of making interpersonal comparisons of utilities[,]'(40) and quotes two economics textbooks to prove the point. The conclusion that economists draw from this premise is that matters of value must be left to the market. Mr. Bork draws the conclusion that they must be left to the majority. In the Indiana article, they must be left to the majority unless trumped by an overriding neutral principle can be derived from the Constitution using the Wechslerian tools of generalisation and abstraction.(41) In The Tempting of America the formulation is the same, but the content has changed; questions of value must be left to the majority unless the original understanding produces a principle which trumps them. Mr. Bork now has the form of his basic argument, a form that can be filled with his method of the moment.
So far, Mr. Bork has held most of the available conservative legal theories I discussed at the beginning of this essay. He has been a libertarian, a proponent of traditional judicial restraint, a believer in judicial activism to enforce natural rights, and a subscriber to Wechsler's theory of neutral principles. The only schools of thought missing from the list are the economic analysis of law, social conservatism, and the philosophy of original intent. With Mr. Bork one never has to wait long. In fact, the changes were already in the works.
During this entire period, Mr. Bork had been hard at work at on the articles later published as The Antitrust Paradox, which was finally finished in 1978. The shibboleths of his argument looked reasonably familiar.
Within the limited frame for observation provided by antitrust, therefore, it is worth noting that the general movement has been away from legislative decision by Congress and toward political choice by courts, away from the idea of competition and toward the older idea of protected status for each producer, away from concern with general welfare and toward concern for interest groups, and away from the ideal of liberty toward the idea of enforced equality.(42)
Mr. Bork believed these trends to be 'ultimately incompatible with the preservation of a liberal capitalist social order.'(43) His prescription was a fascinating one. At first it appears that Mr. Bork is proposing a form of originalism. We should move away from 'political choice by courts' and back to 'legislative decision by Congress.' Should the antitrust statutes be enforced according to the original intent of Congress? It quickly becomes clear that Mr. Bork has some doubts. 'Antitrust' he tells us, 'is a subcategory of ideology.'(44) '[Its] basic premises are mutually incompatible, and because some of them are incorrect, the law has been producing increasingly bizarre results... The law must either undergo a difficult process of reform, based upon a correct understanding of fundamental legal and economic concepts, or resume its descent to the status of an internal tariff against domestic competition and free trade.'(45)
At this point one might wonder where this 'correct understanding' was going to come from. A later Mr. Bork would surely say that unless it represented Congress's actual intentions, no matter how mistaken, it would merely be the substitution of another impermissible judicial opinion in place of that of the legislature. The current Mr. Bork would say that subjective intentions were irrelevant, all that matters was the way the statutes were understood at the time. Mr. Bork circa 1968 could have believed that it was possible to 'derive' a new antitrust policy 'logically by finding and extrapolating a more general principle' underlying the 'particular guarantees' of the antitrust statutes, but Mr. Bork circa 1971 had already pronounced that method 'erroneous.'(46)
In the event, the answer is something of a mixture. Much of the basic argument in The Antitrust Paradox is historical, but it is an interesting kind of history. As, indeed, it has to be. Most historians would agree that the antitrust rules were established with, among other goals, the aim of preventing the concentration of economic power in American society. Those who wrote and passed the statutes seemed to have the strange notion that enormous concentrations of economic power were, in and of themselves, subversive of the American republic. But this is exactly the kind of egalitarian claptrap Mr. Bork will not tolerate. Consequently, he feels free to step in and correct the errors of Congress and the courts, to supplement their feeble attempts to say what they mean with the modern wisdom of economic analysis.(47)
In a passage which reads strangely coming from the author of The Tempting of America he argues that the current principles of antitrust were never confirmed empirically, but admits that they do have history on their side. 'What is true is that our ideas are old; they carry whatever credentials time alone can confer. The years 1890 to 1914 witnessed the origin of every major theory that drives and directs the evolution of antitrust to this day.'(48) Mr. Bork does not wholly reject the intentions of the Framers. 'The concept of legislative intent may be artificial, but it is also indispensable. Besides the construct is not wholly arbitrary.' (49) But he does not want the actual, raw confused goals that those who passed the statutes either had, or were understood at the time to have had. What he wants is a legislative intent purified and refined in the fires of modern views about economy and society. 'A legislature may never address the issue of ultimate policy goals and yet write a law whose various categories and distinctions can be explained only by a particular policy. That policy may then quite legitimately be said to have been intended by the legislature, even though not a single member articulated it to himself.(50) From these interesting premises, his 'not wholly arbitrary' vision of legislative intent and a modern lawyer's vision of microeconomics Mr. Bork can tell that while the antitrust statutes had many goals, they 'have only one legitimate goal, and that goal can be derived as rigorously as any theorem in economics.'(51) The goal is 'consumer welfare.'
It is fascinating to compare Mr. Bork's feelings about the degree to which it is permissible to supplement the original intention or understanding of the antitrust statutes, as opposed to that of the Constitution. He speaks dismissively of the 'primitive state of the law's economic doctrines'(52) and moves quickly to deploy the weapons of modern economic analysis. Yet when contemporary legal scholars do the same thing to the Constitution, bringing to higher levels of generality principles which only have 'whatever credentials time alone can confer' or which are thought to be morally reprehensible, Mr. Bork considers it the worst kind of sacrilege.
It is no answer to say that antitrust law is merely statute law. Mr. Bork explicitly argues that original understanding applies across the board as a legal philosophy. Another possible response would be to argue that the original understanding can be supplemented by developments in a supposedly value-free field such as economics, but not from a change in moral attitudes. Even if we accepted the dubious epistemological premise, this would get Mr. Bork no further. Displaying a meticulous reverence for historical sources, my colleague Jim May has shown the impossibility of this position.(53) In fact, the authors of the antitrust statutes had a perfectly coherent economic theory which simply favoured different values than the one we have at the moment. The statutes and early cases did not merely rest on 'open-ended subjective populism' but instead on the classical economics propounded by the likes of Wayland and Bowen, and eagerly absorbed by a generation of legislators and judges.(54) This vision gave rise to 'analyses that, while faithful to one generation's economic vision, could be found not only faulty, but practically unintelligible by a later generation of antitrust analysts influenced by a very different vision of the nature of economic reality.'(55)
If one puts a multi-goal antitrust policy to the test of an economic theory which postulates 'consumer welfare' as the highest good, it will obviously fail. But what happens if, as the philosophy of original understanding requires, we test it according to the economic system which would have been held at the time? According to classical economic theory, with its concern for the distortion of 'natural processes' its belief that political morality and economics are indissolubly connected, the antitrust policy of which Mr. Bork is so scornful does rather better. Even if original understanding did not force us to look to the contemporary economic wisdom at the time the antitrust statutes were written, Mr. Bork has no way of proving to us that his economics serves preferable values. Why is consumer welfare better than economic decentralisation? 'There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ.'(56) Mr. Bork is caught once again, and in nets of his own devising.
IV Mr.Bork's Flight from Value:
We have now reached a point where it is possible to find the Ariadne's thread which will lead us through the maze of Mr. Bork's ideas. To some, the revelation that Mr. Bork has espoused so many different legal theories, and done so with such vigour, would suggest that he is merely a conservative ideologist-for-hire, producing whatever legal theory is needed in order to win the political debates of the moment. Though I deeply disagree with Mr. Bork about almost everything, I think this would be an unfair reading. Instead,I think that Mr. Bork's long march through the halls of conservative legal theory should be seen as a sincere, almost anguished, attempt to deal with a single dilemma -- a dilemma pointed out by the sentence quote in the paragraph above. If there is no way of deciding matters of legal interpretation except 'by reference to some system of moral or ethical values that has no objective or intrisic validity of its own,' then what had happened to the rule of law itself, or to the line between law and politics?
In my view, this is the most important recurring theme in Mr. Bork's writing. (Although, as I will argue later, The Tempting of America may mark a partial break with the rest of the canon.) In Civil Rights--A Challenge, that concern led him to believe that Congress had no business to overpower the arbitrary value judgements of racist hotel keepers with an arbitrary value judgement of their own. If value judgements are truly arbitrary, the law should carve out spheres of liberty in which people can decide for themselves. In The Supreme Court Needs a New Philosophy, his concern was expressed in terms of a commitment to 'process' rather than substantive (and arbitrary) value choice, at least in those areas the political process functioned well. In those areas where it did not function well, Mr. Bork advocated the a chastened and craftsmanlike derivation of new 'natural rights' underlying the liberties which must be protected from majorities. Again, those liberties must be protected precisely so that a minority could exercise its own arbitrary values in private, free from the heavy-handed (and arbitrary) value judgements of the majority. In his Neutral Principles article, that concern manifested itself as a commitment to protect only those rights for which a Wechslerian 'neutral principle' could be generated, and to let the majority have express its unreviewable value judgements everywhere. In The Antitrust Paradox that concern leads him, as it has led a good many conservatives recently, to reject the contentious and ideologically loaded choices he saw in the law and to embrace instead the scientific certainties apparently offered by microeconomic analysis.
To this end, Mr. Bork tells us that the microeconomic theory we need is not to be confused with the contradictory set of theories actually produced by economists. That belief is an understandable mistake of the lay mind. 'The layman is likely to think that economic theory is what any economist theorizes, but of course it is not. If it were we should have to believe that there are dozens or hundreds of mutually incompatible versions of economic theory, each as good as any other.'(57) And that could not be tolerated, because the point of this whole process was to introduce a scientific and unchanging criterion, a goal of antitrust that 'can be derived as rigorously as any theorem in economics.' It wouldn't do to suggest that economics, itself, might embody unexplained value choices, or be subject to internal professional dispute. Consequently, 'the judge, legislator or lawyer cannot simply take the word of an economist in dealing with antitrust, for the economists will certainly disagree.'(58) When he decides that history offers a better surcease from constitutional value judgements than does economics, Mr. Bork will implicitly take a similarly dismissive view of the kind of history that historians produce.
Here then, is the heart of Mr. Bork's intellectual mission -- to offer a convincing conservative answer to the central question of liberal society. How can we run a society if value judgements are subjective and relative? Each of his theories seems to offer the hope of answering this question but eventually collapses, driving him to the next, 'inescapable' set of ideas. When he was a libertarian, he believed that we could simply leave value judgements to individuals, but then he became obsessed with the difficulty of drawing the lines inside which individuals could exercise their arbitrary values. In his moments of traditional judicial restraint, he believes that those choices can be left to the political process, if they are first properly framed by a court steeped in the wisdom of Alexander Bickel. Yet part of him doubts that the line between those issues that the court must solve itself and those that it can leave to another institution can be drawn quite so neatly. When he comes under the sway of Herbert Wechsler's theory of neutral principles, he accepts that courts may actually decide hard questions so long as they do so under a principle which is 'neutral' as to visions of the good. When he writes The Antitrust Paradox he believes that the value judgements expressed by the legislature can be purified by the scientific wisdom on economic analysis, and thus can provide legislative goals as rigorously derived as any theorem of economics. His final turn (at least for the moment) has been to turn to originalism, the theory he once scorned as naive. Originalism 'solves' the problem of value in constitutional theory by claiming that it only applies the Framer's value judgements, and those value judgements are not values at all, but historical facts. Since liberal epistemology accepts that we can have a rational discussion about facts, we have solved the problem of value for constitutional theory. Or have we?
V Original Intent:
The better known variant of originalism, and the one that Mr. Bork first adopted and held as recently as 1986, was the philosophy of original intent.(59) The Constitution means what the Framers (or perhaps the Framers and ratifiers) meant it to. This is also the most influential version -- the judicial philosophy championed by recent Attornies General. But if the philosophy of original intent is the most popular version, it is also the easiest to blow out of the water. Listing the arguments against it is the kind of arduous, lengthy and repetitive task which Victorians believed suitable for the rehabilitation of convicts. I undertake it here in the hope of acquiring virtue.
First, the idea that the intention of the original author must govern the meaning of the text is simply not true as either a practical or a philosophical matter. Actually, in both law and life we use lots of different interpretive criteria to establish what something 'means.'
Second, even if original intent was the preferred method, there is strong historical evidence that the intention of the Framers was that their intentions should not bind future generations. Original intent tells us to obey the Framers and the Framers said, 'our intention shouldn't govern.'
Third, even if original intent wasn't philosophically and historically bankrupt, the records we do have of the Framer's original intent indicate that it is either contradictory or indeterminate. Sometimes both. Since the proponents of original intent argue that we must embrace their method or else admit that the Constitution could mean anything, it is bizarre to find that his method itself is no more than a judicial Rohrsach blot.
Fourth, in those few areas where original intent is clear, it is sometimes morally outrageous. Any protagonist of original intent must confront the question of whether or not, as a moral matter, we can responsibly allow the intentions of men, some of whom believed ardently in slavery and almost all of whom believed in the innate inferiority of women, to govern current constitutional interpretation.
Fifth, to adopt original intent as the supreme method of constitutional interpretation flies in the face of most of the Supreme Court's jurisprudence, the vast majority of scholarly writing, the opinions of most constitutional historians and, probably the majority of the American people. It also raises impossible questions of transition from our current constitutional arrangements. As Mr. Bork once put it, '[t]his Nation has grown up in ways that do not comport with the intentions of the people who wrote the Constitution -- the commerce clause is one example -- and it is simply too late to go back and tear that up. I cite to you the legal tender cases. These are extreme examples admittedly. Scholarship suggests that the Framers intended to prohibit paper money. Any judge who thought today he would go back to the original intent really ought to be accompanied by a guardian rather than be sitting on a bench.'(60)
To sum up, original intent is a philosophically incoherent method which appears to contradict the Framers own intentions. It is sometimes morally objectionable, sometimes indeterminate, flies in the face of precedent and scholarship and raises insuperable problems of practical implementation.
VI The Move To Original Understanding:
With this range of defects it is hardly surprising that Mr. Bork chose to shift his ground somewhat. In The Tempting of America he argues that the understanding of the public at the time the Constitution was ratified, rather than the intent of its original authors, should determine its meaning. There is obviously a price to pay for making this change. The best thing about the intent of the framers was that it appealed to the unreflective idea that a document must always mean exactly what its authors meant it to -- no more and no less. The practitioners of original intent can claim with superficial plausibility that their method is the one 'natural' way to read the text. They can even claim that we often (though not always) read other legal documents this way -- trying to determine what Congress, or the judge, or the administrator meant by this word or that phrase. Original understanding has less unreflective appeal. Precisely because it is a more sophisticated notion of interpretation, it sacrifices the idea that this is the only credible way to read a text (what about what the words mean out of context, or what the author meant?) the appeal to everyday practice and perhaps even the claim that this is the way we read other legal documents.
This problem is a particularly acute one for Mr. Bork. Throughout The Tempting Of America he explicitly connects his struggles to those going on within other disciplines. As well he might. Most disciplines seem to have rejected the idea that the text can only be read to mean what the author intended. Literary critics and historians have added other methods of reading. How would the text have been understood by its audience at the moment that it was written? How would an audience today understand it? Can the text be illuminated by evidence of the author's subconscious desires or conflicts? How does the text read if we take it as an a-contextual attempt at philosophical argument?
These other methods are referred to collectively (and a little pretentiously) as 'the reader's revolution against the author.' They represent everything that Mr. Bork finds most reprehensible in today's scholarship. He quotes approvingly a letter from intellectual historian, Gertrude Himmelfarb attacking this impermissible openness to other methods of interpretation. 'Any methodology becomes permissible (except of course, the traditional one), and any reading of the texts becomes legitimate (except, of course, that of the author).' (p. 137) If Mr. Bork was still claiming that constitution meant what its authors intended, this would be all well and good. But the trouble with Mr. Bork's revamped and sophisticated version of originalism is that it can no longer appeal to the romantic idea that the imperial will of the author must govern the text. 'The search is not for a subjective intention.' (p. 144) Instead, he has handed over interpretive competence to the historically located readers of the constitution. For reasons we can only speculate about, he has shifted ultimate interpretive authority from the Framers of the Constitution to the 'public of that time.' Mr. Bork has joined the reader's revolution.
As I pointed out before, this switch is a costly one for Mr. Bork. To the initial cost of having been seen to adopt the very same methodology so often criticised by conservatives in other academic disciplines, one also has to add the cost of having been seen to change from one dogmatically asserted position to another. Mr. Bork obviously feels this one particularly strongly because he denies having done it. Though he described himself during the hearings as 'a judge with an original intent philosophy'(61) and argued in print that 'original intent is the only legitimate basis for constitutional decision-making',(62) he says in The Tempting of America that '[n]o even moderately sophisticated originalist' believes the Constitution should be governed by 'the subjective intent of the Framers.' (p.218) He suggests that no-one could ever have held such a belief, because it would necessarily mean that the secretly held beliefs of the Framers could change the meaning of the document. Thus all (moderately sophisticated) originalists must have believed in original understanding all along. This seems like a red herring. There are many varieties of intentionalism and many varieties of 'reader-controlled' interpretation. But allowing the intention of the author to control interpretation is fairly obviously not the same thing as allowing the understanding of the reader to control. Expanding the definition of intentionalism does not turn it into the philosophy of original understanding. The
intention of the Framers and ratifiers' is not the same asthe understanding of the American people at the time.' Mr. Bork seems to find it hard to admit the change.
The most interesting example of Mr. Bork's scholarly method is the point in The Tempting of America he takes sections from his 1986 article The Constitution, Original Intent, and Economic Rights(63) which, as one might suspect from the title, defends original intent, and uses those sections to defend original understanding. At first glance, it appears that he does this by finding the words 'original intent' wherever they appear in the article, and simply replacing them by 'original understanding.' Chunks of text which had reproved Paul Brest with failing to understand that the original intent determines the meaning of the 14th Amendment, are edited, expanded upon, a new philosophy of interpretation inserted. With a quick change of key words they can become reproofs to Paul Brest for failing to understand that original understanding determines the meaning of the 14th Amendment.(64) Even the same counterarguments can be pressed into service. In 1986 for example, '[t]here is one objection to intentionalism that is particularly tiresome. Whenever I speak on the subject someone invariably asks: 'But why should we be ruled by men long dead?'(65) In 1990, Mr. Bork finds that '[q]uite often, when I speak at a law school on the necessity of adhering to the original understanding, a student will ask, 'But why should we be ruled by men who are long dead.' (170) In the era of the word processor, this kind of 'search and replace' jurisprudence has its attractions. Still, both the interpretive criteria and the identity of the `dead men' has changed, and Mr. Bork seems uneasy with that fact.(66)
The closest Mr. Bork comes to admitting a prior attachment to intentionalism, is that point at which he confesses having previously 'written of the understanding of the ratifiers of the Constitution' (144). Actually, he wrote of the intentions of the ratifiers, and a more characteristic statement from his earlier self would be 'I wish to demonstrate that original intent is the only legitimate basis for constitutional decision-making.'(67) This seems definite enough, but the new Mr. Bork does not like it. Having de-emphasised intention, and converted Framers to ratifiers, he then claims that he was merely using 'a shorthand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean.' (p.144) Of course, according to his new theory, what Mr. Bork meant by his 'shorthand terms' is irrelevant, the important thing is what he would be understood to mean when he said 'original intent.' Perhaps he feels his new method should not apply here.(68)
So Mr. Bork pays a high price for his move from original intent to original understanding. Is the game worth the candle? Does he succeed in escaping the devastating critiques of original intent which apparently prompted originalists to switch their ground in the first place? Sadly for him, the answer is no. In fact, a little reflection will reveal that the philosophy of original understanding is beset by exactly the same problems as the philosophy of original intent and has less intuitive appeal, to boot.
VII Problems with Original Understanding:
The first problem facing original intent was that it could not claim to be the only authoritative way to read a text. Obviously, shifting one's focus from author's intentions to reader's interpretations hardly supports the claim to have the uniquely correct method of interpretation. In fact, although Mr. Bork claims that original understanding is his watchword, there are several places in the text where he simply forgets and uses language more appropriate to original intent.(69) This makes it particularly hard to accept his claim that original understanding is so clearly the only way to interpret the constitution that it should be made a precondition of judicial confirmation.
The second problem facing original intent was that there is considerable evidence that the Framers themselves intended that their intent should not govern future interpretation. In an article cited by every work on original intent (except, notably, Mr. Bork's) and entitled The Original Understanding of Original Intent(70), Professor H. Jefferson Powell showed that the Framers had a completely different vision of interpretation, one governed more by the traditional hermeneutic methods of the common law than by the simple notion of original intent. If one had to pick a single motive which prompted originalists to switch their attentions from intent to understanding, it is probably the difficulty of dealing with this article. (Mr. Bork's method, which is simply never to mention it, is also remarkably effective.) Unfortunately, original understanding fares little better, as this quotation from Alexander Hamilton might indicate.
The Secretary of State will not deny, that whatever may have been the intention of the framers of a constitution. or of a law, that intention is to be sought for in the instrument itself, according to the usual & established rules of construction. Nothing is more common than for laws to express and effect, more or less than was intended. If then a power to erect a corporation, in any case, be deducible by fair inference from the whole or any part of the numerous provisions of the constitution of the United States, arguments drawn from extrinsic circumstances, regarding the intention of the convention, must be rejected.(71)
Laws can express or effect more than was intended, or for that matter, understood. In such a case, the true guide is the 'usual and established rules of construction' -- which when Hamilton was writing, most assuredly did not mean Mr. Bork's theory of original understanding.(72)
The third problem of original intent was that it is hailed as a corrective for indeterminacy, and yet remains as indeterminate as any of the theories with which it competes. Needless to say, when one switches from the indeterminate intentions of a group of authors to the indeterminate intentions of a (remarkably indeterminate) group of readers, the problem is hardly solved. Surprisingly, the implications of the choice between original understanding and original intent has received only occasional attention inside the originalist movement(73) and little attention outside.(74) Obviously, the historical methods used to work out the understanding of the public will differ from those used to work out the intention of the framers. Should we follow William Crosskey and develop a 'dictionary of the eighteenth century word usages, and political and legal ideas, which are needed for a true understanding of the Constitution'?(75) Should we parse the Federalist Papers, the hermeneutic conventions of 18th century common lawyers, or the propaganda pamphlets and broadsheets which the average voter might have considered? Even if we could agree that understanding and not intent should govern, how do we decide whose understanding is relevant? The delegates to the Conventions? The ratifiers? The people who elected the ratifiers? An average member of the legal profession? Of the public? Should we include the disenfranchised, or is this to be an entirely white and male original understanding? Even if we could agree on the correct group the evidence we have of opinions within such groups indicates that their 'understanding' diverged markedly depending on class, political affiliation, professional status and geographical location.(76) Strike three against original understanding.
The fourth problem of original intent was that -- in a fair proportion of those few cases where we have any idea what it might have been -- it is morally objectionable. This problem is made no better when we turn to original understanding. Franchised American society was overwhelmingly a privileged white male group. The opinions of a majority of that group would strike us to day as sexist, racist, class-biased and heavily elitist. Do we want their understanding to govern?
The fifth and final problem with original intent was that it flew in the face of years of two hundred years of Supreme Court jurisprudence, was contradicted by the majority of scholarly opinion and wasn't -- if Mr. Bork's confirmation hearings were anything to go by -- supported by a majority of the population. Again, original understanding fares no better. As with original intent, what we have here is a philosophically flawed, historically contraindicated method of interpretation which is often practically indeterminate, sometimes morally objectionable and generally at odds with past practice and scholarship.
How does Mr. Bork deal with these, apparently serious, problems? In particular, how does he deal with the very real historical challenges to both the validity, workability and moral acceptability of his method? The answer to that question is rather hard to answer because there is almost no history in this book. Mr. Bork quotes a few passages from letters or cases, but never engages in the very practice of historical exegesis of the constitution which he would require of judges. The only sustained historical work in the book is a history of Supreme Court cases which Mr. Bork thinks are particularly good or particularly bad. Since he is advocating an historically based method, it is worth looking at the calibre of the one piece of history he actually offers us.
No one, we presume, supposes that any change in public opinion or feeling.... should induce the court to give to the words of the Constitution a more liberal construction... than they were intended to bear when the instrument was framed or adopted. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended: but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.
Mr. Bork's History
This quote is not taken from Mr. Bork's book, though it expresses his sentiments admirably. Nor is it taken from a speech given by a Reagan or Bush appointee to the Justice Department, though it bears all the hallmarks of such a document. The quotation comes, in fact, from a Supreme Court Case. Here is a neat and thoroughly authoritative judicial statement of the philosophy of original understanding. As such, one might imagine that it finds great favour with Mr. Bork, Mr. Meese et al. Nothing could be further from the truth. This quotation comes from Dred Scott v. Sandford,(77) probably the most infamous case ever decided by the Supreme Court and the one most universally reviled by generations of law professors; reviled even by Mr. Meese and Mr. Bork.
The quotation is no isolated example. A large portion of Taney's 241 page opinion is given over to the original understanding of the Constitution on the matter of slavery. Taney not only searches for the original understanding of the Constitution, he uses it to interpret the Declaration of Independence. Could the slaveowners who wrote and ratified that document really have intended that 'all men' mean all men? Using original understanding as his guide Taney is able to decode the meaning of these apparently general words.
The language of the Declaration of Independence is equally elusive. The general words.. would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.(78)
Some of the Founders of the Republic were slaveowners. So were many of the citizens. Since they cannot be presumed (by Taney or Bork) to be hypocrites, and since their understanding of the document -- not the meaning that the words have come to acquire -- is dispositive, there can be no doubt on the matter. Slaves have no share of the rights claimed by the Declaration of Independence.
Given these methodological premises, how can we doubt that Dred Scott will lose? Changing sentiment, moral outrage; all of these are irrelevant. Perhaps it is worth recalling the words quoted above, in their unelided version this time.
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed or adopted.(79)
Justice Taney, like Mr. Bork, knows that his conception of the judicial role is the correct one. Justice Taney, like Mr. Bork, has in his hands a timeless document.
It is not only the same in words, but the same in meaning and it delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter from the path of duty.(80)
Does Dred Scott discredit the philosophy of original understanding? Obviously, it is disconcerting to find that one of the strongest defenses of your philosophy in the most reviled case in the history of the United States Supreme Court. It is more than disconcerting to find that original understanding seems to write slaves out of the Constitution and the Declaration of Independence. Still, one might argue that even a good method can produce bad results. Is that Mr. Bork's response? Not exactly.
Mr. Bork does feature Dred Scott in his capsule, post-lapsarian, history of the United States Supreme Court. He also agrees that the case is a bad one -- '[s]peaking only of the constitutional legitimacy of the decision, and not of its morality, this case remained unchallenged as the worst in our history until the twentieth century provided rivals for that title' (p. 28) So how does Mr. Bork deal with this taint on the escutcheon of original understanding? Well, by ignoring it, mostly.
The case takes up 241 pages in the Reports. There is no need to examine all of its dubious arguments; it was quite evident not only that Scott was to remain a slave but that Taney intended to read into the Constitution the legality of slavery forever' (p. 30).
Having decided that there is 'no need to examine' Taney's 'dubious arguments' (many of which were appeals to original understanding), Mr. Bork concludes that the real evil in Taney's opinion is that it introduces the concept of substantive due process, a 'concept that has been used countless times since by judges who want to write their personal beliefs into a document that, most inconveniently, does not contain those beliefs' (p.31). With this breathtakingly simple move, Mr. Bork himself is able to ignore all the inconvenient parts of Taney's opinion, instead to concentrate solely on Taney's 'introduction' of substantive due process. Of course, substantive due process is, in Mr. Bork's mind, one of the most appalling features of contemporary liberal jurisprudence -- exactly the kind of thing you can expect from judges not bound by the original understanding of the constitution. The message is clear. This is 'the worst constitutional decision of the nineteenth century' (p.28) and it is the ancestor of contemporary liberal constitutional interpretation. Can the fruit fall far from the tree?
As if this were not enough, Mr. Bork then turns round and concludes that the judicial hero of Dred Scott, Justice Benjamin Curtis, author of the dissent, was actually the case's real proponent of originalism. He can do this only by using quotations which will not bear the meaning he assigns to them and by completely ignoring the elegant, passionate and explicit defense of original understanding contained in the majority opinion. From any scholar, this would be a disappointing performance. But Mr. Bork is not just any scholar. He is a scholar who claims that the historical record of the original understanding of the constitution provides a real check against judicial activism. Yet, with 'history' like this, what could not be proved?
It would be tempting to argue that Mr. Bork's failure even to mention the originalist leanings of Dred Scott undermines the rest of his argument. Tempting but unfair. On the other hand, we cannot believe that he would think it irrelevant that this notorious pro-slavery opinion is grounded in original understanding. The problem must be dealt with. Let us therefore be charitable and presume that he did not have the opportunity to read the case before writing about it. How might he revise his notional history of the Supreme Court to take into account what Dred Scott actually says? First, he has to explain how we can put any trust in a method used in such a despicable case -- by no means an impossible thing to do. His response, I think, would either be that his method can be convincingly manipulated to reach bad results, or that it was correctly used but, in this case, produces results we find despicable because the Framers and ratifiers of the constitution really were racists. The former response tends to undermine his claim that reliance on original understanding really constrains judicial behaviour. The latter brings a second more fundamental problem in its wake.
The second and more fundamental problem that Mr. Bork must deal with, is the question of morality. Taney's opinion makes the entirely reasonable point that, since we cannot presume them to be hypocrites, 'the conduct of the distinguished men who framed the Declaration of Independence' shows that document to guarantee only the rights of Caucasians. After all, if they had declared all men to be equal and then kept slaves 'instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.' Taney also argues with some force that the historical record at the time of the writing of the Constitution shows that the 'unfortunate' Negro race was thought of as almost a different species. These views, to say nothing of views about women or the working class, are clearly part of both the intention of the Framers and the understanding of franchised citizens at the time. Can we accept as an interpretive guide to the Constitution, the understanding of a group of men whose views were sometimes so abhorrent? It is of no use to say that there were also abolitionists and radical republicans at the Philadelphia Convention, among the ratifiers of the Constitution and scattered through the general voting population. Even if that could rescue Mr. Bork from moral objections, it would open him up to charges that there was no such thing as a single 'original understanding.'
Mr. Bork's response seems to be that the morally abhorrent views of the Framers have since been purged from the Constitution by amendment -- the 14th and 19th amendments in particular. This is a particularly weak argument, in a book not burdened unduly by strong ones. Imagine for a moment that Mr. Bork can identify some coherent group whose understanding of the constitution is clear and consistent and whose views ought to bind us. Does he think that the moral views of that group were not part of a system but rather a random collection of separate, independent elements? Can we pick through their beliefs like someone picking through a handful of toothpicks scattered on a table? Can we discard racism and misogyny, keeping the rest intact? If you believed that women, blacks and the working class to be inferior and fundamentally untrustworthy, your ideas about the necessary structure of society and the division of powers between the organs of government would obviously be different than those of someone who had more egalitarian and democratic assumptions. It is a strange world Mr. Bork lives in, if he thinks a person's deepest moral views have no connection to each other, no implications for their other ideas. But then again, Mr. Bork does live in a strange world. His unusual combination of authoritarian constitutional interpretation and moral skepticism probably does allow him to believe that moral values have no connection to each other.
The liberal response to the problem of eighteenth century bigotry is to say that we should not be faithful to the Framers' concrete intentions, or the understanding of those who ratified the Constitution, but instead to a generalized and coherent version of the moral system they articulated. When the authors of the Declaration of Independence say 'all men,' meaning and being understood to mean only men, and white men at that, we should abstract the universal principle from its rough and irrationally biased historical origins. Purified in the fires of Kantian moral theory it will give us the non-racial, sexually equal democracy we (in the insidious knowledge class) have always wanted. This answer will not save Mr. Bork's project. It is exactly what he fears most.(81)
Having traced out every possible avenue of escape for Mr. Bork, one can see why he finds 'no need' to trace out Taney's 'dubious arguments.' Those arguments are his own, and they lead him where does not want to go.
Bork a Burkean?
At the beginning of this essay, I argued that it would be a mistake to dismiss Mr. Bork's work too easily. It is true that its philosophical and historical errors, confused argumentation and sloppy research(82) make it a particularly easy target for the reviewer's barbs. Nevertheless, to dismiss it with a facile (or even a contemptuously patronising) account of its manifold contradictions is to leave a number of important questions unanswered. If the arguments in this book are really so weak, why does one get the sense while reading it that it taps some deep wellspring of discontent with the discourse of liberal politics and academia? Put another way, if this book -- praised to the heavens by the conservative political pundits featured on the book jacket -- seems to liberals to be just so much dross and bluster, does this mean that one side is being deceitful, or that there is a fundamental breakdown of communication between the two sides?
My answer to these questions is that there is not one argument in Mr. Bork's book but two, although only one of them will be recognised as 'an argument' under the current canons of political and academic discussion. The Tempting of America is, in fact, a schizophrenic work which, on the one hand, attempts falteringly to justify the theory of original understanding within the epistemological framework of liberal rationalism while, on the other, it presents a basic challenge to that entire framework. To be sure, the challenge is not a systematic one. To be sure, it is one that was made (and made better) two hundred years ago by Edmund Burke. To be sure, Mr. Bork turns and twists and contradicts himself. To be sure, he does not seem capable of separating the occasions when he is trying to satisfy the canons of liberal thought, from those occasions when he is challenging them. But there is a challenge here, for all that -- a challenge to such fundamental tenets of liberal rationalism as the idea that no one has a privileged insight into the moral universe, or that all social institutions should be held up to the test of reason, and those which fail should pass from the earth. In fact, there is a challenge to the possibility of comprehending the social world at all if we rely only on 'the fallible and feeble contrivances of our reason.' For the first time, it appears that Mr. Bork is beginning to challenge the centrality of the problem of value, the problem which has driven him through libertarianism to process theory and natural rights, from natural rights to neutral principles, from neutral principles to economic analysis, and from economic analysis to original intent. Each of these past methods promised to solve, or at least salve, the problem that, in a liberal society, values are presumed to be subjective and arbitrary and the state is supposed to embody no particular conception of the good. Mr. Bork's past ideas offered to provide the touchstone of a neutral method (economic analysis, neutral principles), while others claimed to have identified the right parties whose values should govern (libertarianism, process theory and original intent). All assume that the subjectivity of values is the problem to be solved and that reason is the tool to solve it. It is my claim that, at certain places in his most recent work, Mr. Bork moves away from both of those assumptions. To explain how he does so, I must first set the stage.
So far in this article I have concentrated on those places where Mr. Bork has tried and failed to shoehorn his ideas into the analytical framework provided by liberal rationalism -- a set of claims about mind and society until recently so widely accepted that it was hard to remember that it was only as set of claims, and not 'the way things are.' In this section I will focus on the other strand of his ideas. In order to do so, I will compare Mr. Bork's ideas to those of those of the great 18th century conservative, Edmund Burke. One is a deep and trenchant thinker writing at the dawn of 'the age of reason,' the other is a popular conservative hero writing in what is supposed to be its twilight. The surprising similarities in their ideas may explain the attractiveness of Mr. Bork's work despite its analytical flaws. At the same time, it may illuminate the condition of late twentieth century conservative thought. To bring out this other side of Mr. Bork's work, it is necessary to return to those parts of his argument which will undoubtedly strike reviewers as unusually dogmatic and contradictory -- in particular, his attempt to have his philosophy of interpretation imposed as a prerequisite to confirmation, and his account of the legitimacy of 'moral legislation.'
As the reader may recall, Mr. Bork believes that it would be a contentious, political (and therefore a bad) decision to require that candidates for judicial confirmation adhere to some school of interpretive method. Other than his own, that is. We could not insist, for example, that candidates for the Supreme Court swear they would only look at the words of the constitution and take them at face value. Nor could we insist that judges swear that they would interpret the constitution's provisions in the light of changing moral sentiment, or economic efficiency, or technological progress, or democratic values. To impose any of these interpretive methods -- even the formalistic one which claims to look only at the words of the document -- would be 'political.' But it is not 'political' (although clearly contentious) to insist that judges swear loyalty to the method of original intent as a precondition for their confirmation. It is not political because that method is right.
This argument, with its confident willingness to impose itself on those with different views, is a hard one to make if one believes in relativism and the idea that values are subjective. After all, one premise of the liberal state is that no-one has a privileged insight into the moral or philosophical universe(83). No-one can claim to have moral truth and then use this claim to rightness to get the state to enforce their views on others.(84) No-one except Mr. Bork, that is? To make this argument, within the canons of liberal rationalism, Mr. Bork contorts himself into the knots described in the first part of this essay. He claims that his (current) method of interpretation is not a method at all, but the only way to read a legal text properly. He claims that it is neutral in derivation and application, and not a set of value judgements, or if it is a set of value judgements that they belonged to the Framers and ratifiers. He claims that it is historically well-founded and then (rather confusingly) that even if it wasn't we would have to invent it. He claims.. well, he claims a lot of things and none of them are very convincing. In fact, they are so unconvincing that one sometimes wonders whether or not Mr. Bork really cares very much about whether or not we believe them. What would his argument look like if he rejected the premises of liberal rationalism and offered some other set of premises so that he no longer had to tie himself in knots proving the impossible? In that case, Mr. Bork's argument would not look like weak apologetics, but instead like an open attack on liberalism, both classical and modern, an attack on the fundamental premises held by both conservatives and liberals. As such it would deserve the extra respect and attention we should accord to all root and branch attacks on our most basic assumptions.
I hasten to say that it would be stretching a point to say that Mr. Bork does in fact make a frontal attack on the premises of liberalism. But for every time that he accepts those premises, there is another moment when he challenges them. His discussion of morals provides a particularly good example.
At first, Mr. Bork comes across as entirely conventional in his premises, if not his conclusions, about moral argument. Like the sexually active, egalitarian members of knowledge class, he spends a considerable amount of time talking like a social rationalist and a moral relativist. Scattered throughout The Tempting of America are discussions apparently based on the idea that moral values (but not interpretive methods) are subjective, relative and not subject to rational discussion. It is for exactly this reason that he believes that the some of the issues beloved of liberal constitutionalists should be decided by legislatures rather than courts. Courts have no business deciding questions of value, where one person's opinion is as good as another and thus the majority decision is the only valid one. This opinion appears time and time again. He says of the debate over the death penalty, for example, '[i]t does no good to dress the issue up as one of moral philosophy, because such philosophy does not give a clear answer. Arguments have been made both ways and none is conclusive.' (p.214.)
Needless to say, Mr. Bork does not think much of contemporary academic forays into moral philosophy. With eminent fairness, he points out that '[i]f the greatest minds in our culture have not succeeded in devising a moral system to which all intellectually honest persons must subscribe, it seems doubtful, to say the least, that some law professor will make the breakthrough any time soon.' (p. 255) Who can disagree? He announces that he has made a decision, already evidenced by his presentation of opposing arguments, to give up reading legal scholarship of this type. 'There comes a time to stop visiting inventor's garages to see if someone really has created a perpetual motion machine.' (p. 255) Who can suppress a pang of sympathy? Mr. Bork even agrees with Alisdair MacIntyre that '[t]here seems to be no rational way of securing moral agreement in our culture.'(85) Again, these seem like the words of a moral relativist.
It is in his argument in favour of 'legislated morality' that Bork's views become more complicated. He still seems to believe that moral decisions are not subject to proof or refutation and thus are unreviewable by the analytic techniques of judicial reason. Thus there is no alternative but to leave it to the democratic legislature and the majority view. This sounds like moral relativism to me. But Mr. Bork reserves the term 'relativist' for those who disagree with him, particularly those who disagree with him about the propriety of 'legislated morality.' Liberals assume that if morals are subjective and relative, the state should not be allowed to legislate morality for its citizens. Mr. Bork draws rather different conclusions.
There being nothing in the Constitution prohibiting legislated morality, the only opposition to it rests upon a moral view. The Bowers dissent said as much when it stated as a 'moral fact' that a person belongs to himself and not to others or to society. Moral relativism is, after all, one moral position. But the imposition of moral relativism upon legislatures by judges is not, strictly speaking, moral relativism in itself. It is more accurately described as the belief that the only valid and trustworthy morality is the judges'. p. 126.
The key to this argument is the way it deprives moral relativism of the universal status claimed for it. By reducing moral relativism to the status of just one particular moral system, rather than a universalistic claim about moral systems, Mr. Bork is able to turn the tables rather neatly. To say that we cannot legislate morality would be to impose a moral view -- moral relativism -- something which moral relativism itself should prohibit. Legislated morality cannot be reviewed, precisely because it is morality. The judge's opinion is of no more weight than anyone else's. Very well, then. How do we know when something is a moral issue? The answer to that question turns out to be a little more complicated.
Discussing the application of the 14th Amendment's guarantee of equal protection to laws which make distinctions on the basis of gender or sexual orientation, Mr. Bork makes two interesting pronouncements. The first is about gender. 'The general language of the clause, however, continues to subject such cases to the test of whether statutory distinctions are reasonable. Sexual differences obviously make some distinctions reasonable while others have no apparent basis.' (p. 150) Now, it might appear that to ban people of one sexual orientation from service in the military without any proof of any negative effects, was, in fact, unreasonable. It might appear very unreasonable to criminalise a particular sexual practice between consenting adults in their own home simply because some people don't like the idea of it. Mr. Bork does not find it so. 'Society's treatment of sexual orientation is based upon moral perceptions, so that it would be difficult to say that the various moral balances struck are unreasonable.' (p. 150, emphasis added).
Notice how the boundaries shift in this argument. Disparate treatment of women can only be allowed if the distinction is reasonably based on (presumably physical) sexual differences. Mere opinion or prejudice is not enough. Disparate treatment of gays, however, is 'based on moral perceptions' and therefore 'it would be difficult to say' that they were 'unreasonable.' He restates this theme in more uncompromising tones in his discussion of the Hardwick case. '[T]he suit was surely brought to seek a declaration that would equate the constitutionality, and hence the presumed morality, of homosexual and heterosexual conduct. Hardwick's suit, in a word, rested upon nothing in the Constitution and so was one more sortie in our cultural war.' (p.117)
How does Mr. Bork know that discrimination against gays is a matter of (unreviewable and a-rational) morality while any discrimination against women is subject to the test of reason? The supporters of apartheid and those who believe that a woman's place is in the home, both argue that any other state of affairs is 'unnatural' and 'immoral.' Does Mr. Bork have the master grid which identifies those issues that are legitimately moral decisions and those which are merely irrational prejudices? Some conservatives are attracted to this kind of neo-Platonism, but not Mr. Bork. The answer, I think, is that an issue is a 'moral' one if it has been traditionally seen as one by the majority of people in the society. I can see no other distinction which will allow Mr. Bork to make discrimination against gays, but not women, a matter of 'morality.'(86)
One point which could be made here is that Mr. Bork's constitutional philosophy is by no means as changeless and neutral as he would like to make out. He rails against liberals for modifying the constitution according to changing moral sentiments, yet he himself adopts a method of interpreting its provisions which will produce different results according to changing sentiments about which issues are moral ones. Mr. Bork appears to be just as blind to this contradiction as he was when he complained that the confirmation hearings applied a political litmus test of judicial method, and then advocated just such a test himself. But there are more interesting things here than merely another chance to point out the internal incoherence of Mr. Bork's argument.
There is a worthwhile canon of academic debate, to which Mr. Bork apparently does not subscribe(87), that a critic should deal not only with the best argument that an opponent offers, but the best argument that could be offered. As have already seen, the arguments that Mr. Bork offers in this book are unlikely to prosper in any more critical environment than that offered by daytime television. But buried in this hodge-podge of contradictory moral and interpretive theories, lies a real argument -- one rooted in the apparently contradictory ideas about morality which I have just discussed. Mr. Bork does not make this argument -- although he uses fragments of it -- but perhaps he should.
I started this section pointing out that Mr. Bork often strays far from the two core premises of post-Enlightenment liberal thought about social institutions. The first premise is that social institutions should be held up to the test of reason, and those which cannot be rationally justified should perish. The second is that morals are subjective and relative and not subject to rational proof or disproof.(88) From the second premise, or sometimes from the conjunction of both premises, is deduced a corollary: since no one has a privileged insight into the moral universe, the state should be neutral among conceptions of the good. In his discussion of sex discrimination, homosexuality, moral legislation and correct judicial method Mr. Bork oscillates between criticising and relying on these liberal premises. He talks like a relativist one moment, and then like one who has The Truth. He criticises liberals for imposing their ideas of judicial method and then argues for the same result himself. He takes the liberal premises about relative values and draws from it the conclusion that the judges cannot force the state to be neutral among conceptions of the good -- because that would be the imposition of a particular conception of the good! He tells judges that they should wear their critical rationalist hats in reviewing laws which burden women, but their deferential relativist hats when they are reviewing laws burdening homosexuals.
I would say that it is in his fragmentary critiques(89) of rationalism and relativism that Mr. Bork is at his strongest and it is these that I propose to develop. In doing so, I feel I am attempting to be fair to the heritage of conservative thought of which Mr. Bork is an inconstant representative. I say this because there is a noble tradition of conservative attacks on rationalism, relativism and the other bulwarks of liberalism. Edmund Burke, perhaps the greatest of all conservative thinkers, mounted exactly such an attack. Burke's scattered topical writings resist summary, but his fundamental criticism was of the massive hubris involved in supposedly rational criticisms of social institutions. Scornful of the dogma that all values are relative, Burke argued that all worthwhile values come from the, often unreflective, acceptance of a particular society's traditions. The most telling theme of Burke's writings is his defense of this unreflective acceptance, which he defiantly called 'prejudice,' against the illusion of reason.
When faced with the reformer's belief in the possibility of rational reform of social institutions, Burke argued that the human ability to foresee was finite whereas the tests to which existing social institutions were subjected were infinite. Simply because an institution, (such as the practice of interpreting the Constitution according to our idea of the original understanding) can be subjected to devastating rational criticism, does not mean that we should abandon it. Whatever its ostensible justification or lack of it, it might now be fulfilling social functions of which we are entirely ignorant. Puffed up with ludicrous pride in the power of reason, we might fiddle with something vital to the structure of our society. Instead, we should put our trust in tradition and 'nature.' Or, as Burke would put it, 'by calling in the aid of [nature's] unerring and powerful instincts, to fortify the fallible and feeble contrivances of our reason, we have derived several other, and those no small benefits from considering our liberties in the light of an inheritance.' (Reflections p.121) Thus, traditions which seem contradictory, chaotic and irrational should be embraced and defended against the facile wisdom of those who '[b]y what they call reasoning without prejudice,.. leave not one stone upon another in the fabric of human society. They subvert all the authority which they hold as well as all that which they have destroyed.'
This is fine strong stuff. Contemptuous of liberal nostrums on the power of reason, it puts its faith in tradition, prejudice and solid unvociferous opinion. Such a theory could, without contradiction, support the imposition of loyalty oaths to one kind of judicial interpretation -- provided only that it be proved to be traditional. Indeed, such a theory could support the imposition of (more overt) conservative oaths to defend the status quo, should that be necessary. Is Mr. Bork a Burkean? Should he be one?
At first sight, the answer to both questions is 'no.' After all, Mr. Bork claims to that his constitutional philosophy is objectively correct, that it is neutral in derivation and application and that it does not represent the imposition of a particular set of values onto the Constitutional document. This sounds like exactly the attempt to 'reason without prejudice' about social institutions of which Burke was so contemptuous, the attempt that marks each of Mr. Bork's prior legal theories. Yet, as has already been shown, Mr. Bork's arguments for the objective correctness of the theory of original understanding are philosophically bankrupt, historically unfounded, personally inconsistent and practically indeterminate. He would gain much and lose little by jettisoning them. Are the other parts of his theory consonant with Burke's ideas?
Probably the single greatest structural similarity between the ideas of Burke and Mr. Bork, is that both of them resort to a kind of class analysis. Both see themselves as the defenders of a strong but inarticulate tradition against the depredations of an intellectual class drunk on its own wordy theories.(90) For Burke, it was the impulsive parvenu bourgeois class, with their fancy ideas about reform, their hostility to traditional values and hierarchies, their preference for egalitarianism and their dangerous rationalist societies. He set himself up against 'the delusive plausibilities of moral politicians' and his sharpest barbs were always for what he saw as their mindless love of change for change's sake. 'A spirit of innovation is generally the result of a selfish temper and confined views. People will not look forward to posterity, who never looked back to their ancestors.' (Reflections p. 119.) Against the coming age of liberal rationalists with their reforms, their theories, and their talk of human rights, Burke argued for the spontaneous, organic and above all traditional process of government, a process which might not be explicable in terms of the new categories of the rationalists, but which was valuable nonetheless. 'All your sophisters cannot produce any thing better adapted to preserve a rational and manly freedom than the course we have pursued, who have chosen our nature rather than our speculations, our breasts rather than our inventions, for the great conservatories and magazines of our rights and privileges.' (Reflections p. 121).
Mr. Bork's villains are the intellectual or knowledge class, but the opinions that class possesses are exactly the pride-filled, questioning and rationalist ones that Burke criticised -- hardly surprising, when one realises that it was Burke's parvenu 18th century bourgeois who developed the ideology that Bork's knowledge class now expounds. Not only are the ideas of the knowledge class marked by the hubris of rational social reform, they are constantly in flux. Sounding a common note with Justice Taney, Mr. Bork decries the idea that changing sentiments could have any effect on constitutional law. 'The assumptions and ideas of the intellectual class regularly mutate, which means, to the extent that constitutional law incorporates these assumptions, our fundamental law will shift with fashion.' (p. 242) Burke made the same point about the social reformers of his day, even to the comparison with fashion.
The traditions which need to be defended against the knowledge class's delusive pride in the 'fallible and feeble contrivances of reason' are not only traditions of governance, but the traditional set of ideas about how people ought to live. Like Burke, Mr. Bork is at his most emphatic when he extols these values. He argues specifically against the liberal vision of the morally neutral state. For him society must be able to legislate its moral values if it is not to 'dissolve social bonds.' (p. 249) He quotes approvingly Lord Devlin's dictum, '[w]hat makes a society is a community of ideas, not political ideas alone but also ideas about the way its members should govern their lives.' (p. 249) Burke would have applauded. The liberal tradition sees civil society as an empty vessel which is filled with the particular values and subjective preferences of its citizens, but does nothing more than contain them. It is precisely this relativist attitude which gives the state its universal status as against any of the particular groups, parties or religions which it contains. To Burke, this idea of a neutral universal state was a delusion. There could be no state, no justice, no understanding even, outside of a particular tradition -- a tradition of governance, law, religion, culture and language. And the most important thing about traditions is that they are not 'rational.' Thus we should protect the social fabric of our society, from its great institutions of government, to its smallest traditions of personal moral and etiquette, from the rationalist assault.
I think it is important to stress that this reverential and protective attitude to the social mores of their times is more than just an instinctive conservatism, though it may well motivated by just such an instinct. Liberalism conceives of society as a container full of independent actors with different desires and values. Values and desires may change, just as different drinks can be put into the same glass, the society remains. Writing in the tradition of classical republicanism, Burke and Mr. Bork see each society as an expression of a particular set of traditional values and assumptions. To destroy those assumptions is to destroy the society. In fact, Mr. Bork views the possibility of change in social attitudes with such alarm that he seems to support the use of state force to prevent it. 'A change in moral environment -- in social attitudes towards sex, marriage, duties towards children and the like -- may surely be felt to be as harmful as the possibility of physical violence or the absence of proportional representation of ethnic groups in the workforce.' (p. 247) If we can use the power of the state to prevent the latter two evils, why not the former? Of course, this represents a profound contrast with Mr. Bork's earlier views. The current Mr. Bork has not only sloughed off the libertarian concerns which led him to criticise moral legislation, he seems to have deserted the liberal world where values may not be legislated, for the Burkean world where they must be.
Both Burke and Bork are at their most effective when they take liberals to task for the contradictions in their ideas. Mr. Bork points out that liberals want to have it both ways -- to impose their vision of the state neutral to ends, and then to claim that it is not a political or moral vision at all. Score one for Mr. Bork. Almost plaintively, he asks how liberals can trumpet this doctrine, only to turn round and impose liberal morality on the majority of the country, on such issues as bussing, school prayers, and the `prohibition of father-son banquets at high-schools.' 'On the one hand, there appears to be a degree of morality so severe it amounts to moralism, and, on the other, a hostility to morality so strong it amounts to moral relativism.' (p. 245)
Writing at the beginning of the rise of liberalism and the dawn of the political Enlightenment, Burke had a similar disdain for the way that the liberal exaltation of 'toleration' played itself out in state policy. 'We hear these new teachers continually boasting of their spirit of toleration. That those persons should tolerate all opinions, who think none to be of estimation, is a matter of small merit. Equal neglect is not impartial kindness.' (Reflections 258-9). He was particularly incensed at the suggestion of Reverend Price that those who did not find the Church of England congenial should set up their own religion.
It is somewhat remarkable that the reverend divine should be so earnest for setting up new churches, and so perfectly indifferent concerning the doctrine which may be taught in them. His zeal is of a curious kind. It is not for the diffusion of truth, but for the spreading of contradiction. Let the noble teachers but dissent, it is no matter from whom or from what. This great point once secured it is taken for granted that their religion will be rational and manly. (Reflections p. 95)
'Let [them] but dissent, it is no matter from whom or from what..' It might be Mr. Bork speaking, taxing liberals for exalting the values of homosexuals, criminals and drug users in the name of tolerance and moral relativism, while they denigrate the values of the moral majority.
The cause of this double standard is the knowledge class's perniciously egalitarian ethos.(p. 245) Both Burke and Bork feel that egalitarianism is a corrosive doctrine, weakening the social distinctions and mental habits on which social stability is founded. Burke called it 'that monstrous fiction, which by inspiring false ideas and vain expectations into men destined to travel in the obscure walk of laborious life, serves only to aggravate and imbitter that real inequality which it never can remove; and which the order of civil life establishes as much for the benefit of those whom it must leave in an humble state, as those whom it is able to exalt to a condition more splendid, but not more happy.'(91) Mr. Bork is just as dismissive, if a trifle less florid. 'Egalitarianism is hostile to hierarchies and distinctions. Hence law must be used to weaken or eliminate them, striking at private morality and behavior that is not egalitarian. For entirely innocent reasons, the preferences and talents of people will not always produce equality of results. The egalitarian tendency is then to coerce equality of result by law.' (p. 245-6) In fact, the best protector of these 'entirely innocent inequalities' is the unquestioning and reverential attitude towards traditional values which both Burke and Mr. Bork extol.
A desire to defend society from the 'delusive plausibilities of moral politicians,' a condemnation of the hubris of rational reformism, a hostility to the epistemology of moral relativism and the liberal vision of a morally neutral state, an exaltation of tradition against the demands of egalitarian social thought -- all of these unite Burke and Mr. Bork. In fact, all that divides them is Mr. Bork's lingering but tenuous attachment to the language of rational rhetoricism, the language favoured by many of his foes in the knowledge class. As I showed in Section III, in the past Mr. Bork has tried, defended and denounced nearly all of the conservative methods of the problem of value. Not only is he now running out of theories, he is arguing on a teritory that the moderate center of academia has made its own.
The language of liberal rationalism conjures up a social world where facts are knowable and objective, while values are relative, subjective and partial. If one accepts these premises, then one's epistemological task is to find the methodological tool which will allow them to jump this gap, to reach objective knowledge of the Good, or in this case, the Constitution. The methods used diverge, of course. But whether the method requires a veil of ignorance or an ideal speech situation, wide reflective equilibrium or participation-reinforcing process theory, it has a single goal. The goal is achieve a kind of knowledge free from prejudice and partiality, which does not equate 'that which is' and 'that which should be' and does not have a particular set of values built into its methodological premises. No wonder Mr. Bork's theory doesn't fare very well! These forbidden goals are the very ones that part of him holds dear. He spends half of his time arguing that his method gives us access to facts and not values and hence that it is neutral in derivation and application, free from prejudice and partiality. Then he spends the other half of his time arguing, in the good Burkean manner, in favour of prejudice and partiality, in favour of the authority of tradition and in favour of a state which is not neutral as to moral values, but writes one particular set of values into law.
Mr. Bork seems to imagine that the contradiction is simply between that which the Constitution proscribes and that which the majority is entitled to do, but it is more than that, it is a fundamental clash of ideologies, of epistemologies, of political visions. It is the reappearance of this clash within his theory of originalism that marks the failure of his project. After all, and I think this is a vital point, if the conservative republican vision of the state is correct, what is wrong with having a politically 'prejudiced' theory of interpretation and constitutional values? A modern-day Burke would say that, since all understanding must start from the instantiated values of a particular tradition and a particular social order, there can be no other kind.(92) On the other hand, if the conservative vision is wrong then the ground is cut from beneath Mr. Bork's reliance on tradition, his attack on the moral relativism of the knowledge class and his panegyrics in favour of the state which 'must legislate moral values if it is not to dissolve social bonds.' He simply cannot have it both ways. He should give up his lip service to the liberal conventions of argument.
My point here is that Mr. Bork has tried to hold together a fundamentally schizophrenic argument. He has struggled to fit the ideas of traditional conservatism within the framework of an ideology that claims to hold social institutions up to the test of reason, and respects no claim to privileged insight into the moral order. He has struggled and he has failed notably. Most of the reviews of his book will probably dwell, with varying degrees of gloat and rancour, on the lacunae and contradictions which result, as if these were simply mistakes, rather than being emblematic of a deep conflict of political vision. What would happen if he simply jettisoned the liberal rationalist side of his ideas? He would not necessarily have to give up all of his numerous but shoddy arguments that the theory of original understanding is the only correct way to interpret the Constitution. All he would have to do would be to admit that he has not proved his theory of interpretation to be neutral in derivation and application, that he does not believe that all social institutions (or interpretive theories) should be tested by the 'fallible and feeble contrivances of reason,' and that his strongest suit is 'prejudice' and respect for tradition. Such an admission would encourage readers to focus their attention on the profound challenge which this kind of conservatism represents for the epistemology of liberal rationalism.
What kind of constitutional philosophy would this produce? It would start from premises rather different to those of liberalism. The assumption would be that legitimacy could adhere only to particular social orders, rather than to some general plan of ordered liberty. Thus, in constitutional decision-making and scholarship, there would be less resort to the abstract reasoning that so infuriates Burke and Mr. Bork, and more reliance on the values and traditions of this particular society. Liberal analysis purports to start from a place outside any particular clash of values. Will the Nazis get to march through Skokie, or can the residents prevent them? Can 2 Live Crew play uncensored in Florida, or can the local authorities stop them? To resolve these clashes, liberalism interprets the constitution to be a set of universal norms which stand on a higher level than any particular clash and thus can be enforced without violating the liberal injunction that the state should embody no particular set of political beliefs.(93) Liberalism casts itself as the umpire in a clash of ideologies, not as one of the players, not as an ideology itself.
To Mr. Bork, however, it is clear that the norms which are enforced do reflect a particular set of political beliefs -- those of Professor Tribe and the knowledge class -- and no argument that these norms are immanent in the constitutional order will convince him. A Burkean constitutional law theory would claim that there are no universal, processual norms which allow us to solve a dispute without, ourselves, entering into the fray. Instead, we must accept that the state itself embodies a particular set of value judgements and that realisation of these values is a good thing. Rather than a disembodied state, hanging above the clash of ideologies, we have an embodied state which actively promotes a particular path of civic virtue. Couple this with the Burkean scepticism about 'the fail and feeble contrivances of reason' and we have a philosophy more trusting of local traditions, and more doubtful of claims towards universal truth. A Burkean might support a school district which wanted to teach creationism in the schools, not because creationism is seen as a science, but because evolutionary Darwinism is seen as a religion.(94)
All of this should sound relatively familiar. In some ways, it would be similar to the work which has been appearing under the name of republican constitutional theory,(95) in belated recognition that, from its inception, the liberal refrain in American politics and constitutionalism has always had a contrapuntal minor theme of republicanism. So far, the majority of republican constitutional scholarhsip has taken the republican injunction to civic virtue to refer to the 'active' virtues of political action and civic participation in the life of the republic. A Burkean republicanism would be more concerned with the passive virtues of acceptance of one's place in a pre-established hierarchy and conformity to the traditional moral norms of society. Nevertheless, it would share with its radical republican counterpart a belief that the state cannot be a mere empty vessel, containing the values of its citizens but not partaking of them. For the liberal the state is not just a means to an end, a device to maximise individual freedom. For the Burkean, the state is an end in itself. Thus, the whole question of state interference with individual interests will appear entirely differently. Both 'freedom' and 'state' will take on a particular, and in the Burkean's case, traditional meaning.
[W]hile the conservative may require a loose connection between the state and civil society (looser, say, than that which exists in China), he will wish to see the state as end and not as means, just as he sees civil society. The state as means (as administrative machine, or business enterprise or welfare officer, or whatever) -- such a state is not one to which the citizen can belong. Nor are the ends to which the state is supposed to be subordinate really capable of description outside the order which embodies them. This is certainly true of the liberal end of freedom. Naturally, one's neighbours may interfere with one, to a greater or lesser extent, but until we are given some concrete description of the social and political arrangement, it is impossible to say whether this interference is desirable. The `interference' proper to a rural community in Zululand is greater than anything experienced in a Soviet city. Yet it would be sadly misguided to call it a loss of freedom, when subjection to this kind of interference is precisely what it is to be a Zulu. And as soon as there is interference, there is a form of rule, and therefore a state, however loosely constituted. Without some move in this direction, towards constituted power, a person is neither free nor unfree, but lives like the nomads of the anarchistic commune, in a perpetual hallucination of freedom that can be translated only into solipsistic acts.(96)
Seen in this light, Mr. Bork's views on privacy take on a new coherence. At first it seems strange that he has gone from describing Griswold as 'a salutary demonstration of the Court's ability to protect fundamental human values' to describing it as an 'unprincipled' and 'utterly specious' decision, a 'constitutional time-bomb.' Does this change represent merely a rapid change in heart about constitutional methodology, or was there also a more significant change in political vision at the same time? When one remembers that Mr. Bork now believes that society must legislate moral values if it is not to dissolve social bonds (p.249), it seems clear that there are other reasons for his volte face over privacy. To the new, Burkean, Mr. Bork there are compelling reasons for interfering in decisions the liberal would regard as `personal,' both because of their intimacy and because of the (arbitrary and relative) moral judgements they reflect. To the Burkean, these 'moral' views are actually the basis of state and society. Given this perspective, it is hardly surprising that Mr. Bork feels that '[a] change in moral environment -- in social attitudes towards sex, marriage, duties towards children and the like -- may surely be felt to be as harmful as the possibility of physical violence or the absence of proportional representation of ethnic groups in the workforce.' (p. 247) The issues which had seemed the farthest from the reach of permissible state interference are revealed to be constitutive of state and society. The picture reverses itself. Roger Scruton, an English conservative, puts it particularly well.
[The] individual has become a sophisticated being, anxious for a sphere of privacy in which to seclude the eccentricities that fulfil him. His fulfilment, he thinks, is impossible without the 'right of privacy' which Englishmen regard as indefeasible. But what does this right amount to when unprotected by the state? Nothing. What is fulfilment without the values of a social order? Nothing. And what it eccentricity without the norm against which to measure it? Nothing. This Anglo-Saxon privacy which we esteem is in fact nothing more than the public order seen from within. It is not the vacuous freedom of liberalism, but a substantial and enduring thing, whose content becomes clear only with its limits.(97)
Where do those limits come from? In the Burkean world they are derived from the history, customs and traditional morality of the particular society. No wonder Mr. Bork has backed away from awarding First Amendment protection to all human behaviour, and prohibiting the majority's interference with that it cannot see! To the Burkean, this would give any minority carte blanche to undermine the web of meaning and morality on which the society rests. No wonder Mr. Bork now sees the plaintiff's argument in Bowers vs. Hardwick, an argument indistinguishable from the one he himself had made in 1968, to be 'one more sortie in our cultural war.'
There is another puzzle in Mr. Bork's intellectual history which can be solved by assuming that he is fumbling towards a Burkean consitutional theory. Why do texts become so much clearer, history so much less ambiguous, as Mr. Bork grows older? I have to admit that when I first read Mr. Bork's in ascending chronological order, I had the distinct impression that I was moving backwards rather than forwards in time. Most people begin by seeing clarity and determinacy in their studies and then move slowly towards the recognition of conflict, indeterminacy and vagueness. When Mr. Bork first looked at original intent, he saw a 'naive' attempt to wish away the complexities and indeterminacy of the historical record. Twenty years later, the same record was entirely clear to him. Considered as an intellectual progression in interpretive conclusions it seemed not impossible, but at least counter-intuitive. Yet if looked at, not as a progression of interpretive theory, but as a fundamental change in political vision, it makes rather more sense. From the Burkean point of view, the attractive feature of original understanding is not its specious claim to 'neutrality in derivation and application of principle' but the simple fact that it attempts to solve questions of value by focusing on history and tradition.(98)
As with the definition of the accepted limits of state intrusion, tradition and history are to be valued, not because they supply an interpretive constitutional method capable of surmounting the fact/value dichotomy, but for their own sake. History and tradition do not allow us to climb out of the web of politics to reach some neutral ground, as the liberal would attempt to do. They constitute that web. For the Burkean, history and tradition are our society and there is no place outside of that society to make decisions. Just as Scruton thinks one cannot talk about the acceptable level of state intrusion without knowing whether we are talking about the traditions of Zulu or American society, a Burkean would claim that constitutional interpretation cannot and should not seek the illusory haven of a neutral method 'outside of' politics, but should work from within the 'prejudice,' history and tradition of this society.
There is an obvious and immediate objection to this view of Mr. Bork's work. As I have already shown, his theory rests on a very shaky historical footing. It could be objected that it is a poor representative of an ideology which purports to revere tradition. Pushing my Devil's advocate role to the limit, I would argue that this response misunderstands the Burkean vision, misunderstands it because it continues to apply the assumptions of liberal rationalism. Like Mr. Bork, Burke did not have much respect for the kind of history most professional historians produce. Burke believed that individuals and societies could only exist, communicate and survive by filtering their present attitudes through the traditions, myth and reverence which coloured their history. Thus, it is hardly surprising to find that the history Burke uses to defend his ideas is an idealised, mythologised, poetic history. He even suggests that, in the rare cases when political change is necessary, one can pick and choose among the 'histories' (histoires might be the better word) which one will use for inspiration. In Burke's mind, the failure to take this step is the great sin of pride which has tainted the French Revolution.
[Y]ou chose to act as if you had never been moulded into civil society, and had every thing to begin anew. You began ill, because you began by despising everything that belonged to you. You set up your trade without a capital. If the last generations of your country appeared without much lustre in your eyes, you might have passed them by and derived your claim from a more early race of ancestors. Under a pious predilection for those ancestors, your imaginations would have realized in them a standard of virtue and wisdom, beyond the vulgar practice of the hour: and you would have risen with the example to who imitation you aspired. (Reflections p.122; emphasis added.)
And, this of course is exactly what Mr. Bork does. Searching around for a constitutional theory he acquires a 'pious predilection' for a chosen set of ancestors and imagines 'a standard of virtue and wisdom, beyond the vulgar practice of the hour.' This is not history. It is mythopoesis. But in Burke's world in Giambattista Vico's(99) world and perhaps in Mr. Bork's world, mythopoesis is all there is.(100)
The Burkean history is a chosen history, one that suppresses those features of our 'ancient liberties' which do not fit the story. One could have met Burke on his own ground by pointing out that there were also strong English(101) traditions towards egalitarianism and social iconoclasm. Equally, there are moments reading Mr. Bork's version of American history where one is hard put to remember that this was a state born in revolution against a colonial power, and infused with egalitarian as well as hierarchical traditions from its very inception. To say this is not say that Mr. Bork's history is false by comparison with some absolutely true, egalitarian, radical republican history of the United States. The post-modernist would say that all of our histories are 'chosen' histories, Mr. Bork's along with the rest, and that there is no surcease from the invention and reinvention of our past.(102)
All this leaves us with one overriding question. If I am right, Mr. Bork is in fact proposing a reverential attitude towards what amounts to a comprehensive mythology predicated on the importance of stability and order -- a mythologised tradition of constitutional governance, a mythologised family life, a mythologised set of 'innocent,' 'natural' hierarchies and a mythologised morality of middle America. If this is true, if all of us must construct our own mythologies, why is Mr. Bork not more open in urging the Burkean side of his ideas? One possibility is simply that they do not exist, that I have imagined them and the intellectual progression which leads to them. Understandably, I don't think much of that suggestion. Another possibility is that Mr. Bork does not realise that some of his ideas rely on the premises of liberal rationalism and others challenge those premises. The fragmentary way in which Mr. Bork develops his argument certainly supports this suggestion and there is probably some truth to it, yet I think there is also another factor operating. What happens if you are a conservative who begins to doubt the adequacy of the framework of liberal reason? If you are a progressive, then there is a certain satisfaction in breaking down the arguments which support the status quo, in showing that history and insitutional structure are radically under-determined and thus that 'the way things are' is not inexorable or inevitable. But what if you are a conservative? What if you come to realise that your strong suits are prejudice rather than reason, mythologised tradition rather than 'rational progress,' unquestioning affection rather than rationally demonstrated legitimacy? Your position, I would suggest is a difficult one. Almost, in fact, a tragic one.
[T]he conservative who has risen above the fragments of his inheritance and reflected on the desolation that has been wrought in it cannot return to an innocence which his own thinking has destroyed. He is not in the position of Sartre's existential anti-hero, forced to take responsibility for a choice which he lacks the concepts to describe. He knows what he wants, and knows the social order that would correspond to it. But in becoming self-conscious he has set himself apart from things. The reasons that he observes for sustaining the myths of his society are reasons which he cannot propagate; to propagate his reasons is to instil the world with doubt. Having struggled for articulacy, he must recommend silence.(103)
Perhaps this is the worm at the heart of Mr. Bork's apple. The reasons he offers for the philosophy of original understanding are poor ones. Yet to speak the reasons I have outlined here, is to re-enter the sceptical world of rationalist inquiry and thus to threaten the very myths on which he would rely. Should he challenge the premises of liberal rationalism overtly? Should he offer a post-modern conservatism sceptical of the claims of reason, proud of tradition, convinced of the inevitability of myth? Or would the propagation of his reasons instil his world with doubt? Might it even turn his readers away from his solutions to the problems of liberalism and towards those who criticise liberalism from the left rather than the right, from faith in equality rather than hierarchy, those who revere change as much as Mr. Bork reveres stability? Having struggled for articulacy, Mr. Bork chooses silence.
What is one to say about Mr. Bork's most recent argument? From the more obvious perspectives it is a notable failure. It advocates an historically based mode of interpretation yet its history is poor and sometimes non-existent. It fails markedly to deal with the strongest objections to original understanding -- both theoretical and practical -- but then again it is hard to see how it could, so overwhelming are those objections. Its coverage of contemporary constitutional legal theory, particularly conservative legal theory, is cursory and tendentious. The jurisprudential method which forms the heart of the book contradicts Mr. Bork's own previous writing, and does not have the virtues he claims for it. Poor history, bad logic, personal inconsistency and a method riddled with aporia and contradiction -- it is a fairly depressing list of conclusions. The list is made all the more depressing when it is counterposed against the person touchingly revealed by this book, and the scholar revealed by his earlier books. It seems that at a certain point Mr. Bork decided no longer to listen to those with whom he disagreed, decided that moral, historical and jurisprudential objections to his theories were as nothing and became so firmly fixed in his views that he could not even wonder whether or not his ideas, too, were a contentious and political litmus test for judges, no matter how right they seemed to him. If true, this is a loss to us all, Mr. Bork included.
Some might agree with this assessment, but would lay the blame on the confirmation hearings, an experience which would drive anyone to dogma and a jurisprudence of tag lines and sound-bites. The book certainly reveals those hearings to have been a painful ordeal which, whatever the merits of the objections to Mr. Bork, had its own set of unacceptable distortions and mistakes. But in my view the process of denial started long before the confirmation hearings.
There is in all of Mr. Bork's writing an almost frantic insistence that the world must be marked out by bright lines, it must, because the alternative is too terrible to contemplate. When insistence comes into conflict with reality the result is denial: Denial of history, of complexity, of the most cogent objections. Denial of the practice of the Supreme Court, the consensus in legal academia, the views of the public. Denial of practical and theoretical difficulties and, in the end, even a denial of his own past work. The mechanisms of denial vary, it is true. One can deny the importance of the consensus of legal academia by attributing it to a complacent class interest. 'Simplification' allows Dred Scott to become a case which discredits only substantive due process and not also original understanding. The practice of the Supreme Court can be separated into heresy and correct doctrine and the former decried. The historical evidence which indicates that the Framer's understanding was that their understanding should not bind future generations can simply be ignored. Complexity can be denied by claiming that its recognition would start us on the slippery slope to anarchy or tyranny. Mr. Bork's own past work may be glossed over in a hurry. But in the end, so much denial tends to undermine itself.
For Mr. Bork, the alternative to denial would be despair, despair accompanied perhaps by tyranny. When a theory demands that so much of the world be sacrificed to its dictates, might it not be the theory, rather than the world, which is in error?
In this essay, I tried to answer that question by going beyond the obvious contradictions and problems of The Tempting of America. When that work is set beside Mr. Bork's earlier works it is clear that all of them have a similar theme, an obsession, almost. On one level, all of them deal with that familiar concerns of liberal rationalist social theory. Can we simultaneously believe that all social institutions are subject to the test of reason, and believe that values are subjective and arbitrary? If our premise is that schemes of values cannot be weighed by any rational criterion, how can we solve the problems of liberty and order? But when Mr. Bork deals with these familiar themes, he does so with a very different sensibility from his foes in the knowledge class. In his early work, the subjectivity of values means that we should leave everyone alone to work out their own values, no matter how unpleasantly racist they might be. A few years later, he believe that the subjectivity of values and the indeterminacy of text and history reinforces the traditional conservative arguments for judicial restraint, but part of him also wants to develop new natural rights so that the subjective values of individual citizens, rather than legislatures, will be granted greater deference by the courts. In his work on antitrust he doubts the ability of democratic institutions to reach rational results, and advocates a judicial role which will chasten their arbitrary subjectivity with the science of economic analysis. He is led to hold each conservative school of thought in turn, insisting (to himself?) that his conclusions are 'inevitable.' Each time, it seems, he thinks he has the problem licked.
On the most obvious level, The Tempting of America is the weakest argument he has put forward so far. His earlier work, even the sketchy pieces for popular magazines, showed a willingness to face up to historical ambiguity, a recognition that texts and values sometimes would not do the things he wished they would. The Tempting of America is unmarred by complexity or nuance. When faced by insoluble problems, the earlier Mr. Bork tried more subtle arguments. This one resorts to bluff and bluster. Yet on another level, The Tempting of America is an advance. One thing marks each of Mr. Bork's prior efforts. Each of them accepts the framework of liberal rationalism and attempts to argue within that framework. I have argued in this essay, that The Tempting of America marks a break, albeit a fragmentary and partial break with that tradition, and turns instead to the older ideas of Burkeanism or forward to the newer ideas of post-modernism. Is such a break worthwhile?
One possible answer was prefigured in my description of the popular advantages originalism holds over the various types of conservative legal theory. If conservatives want only a source of rhetoric and weighty but spurious argument, original intent and original understanding will do fairly well, either alone or in conjunction with other schools of conservative rhetoric. Burkean frills may be unnecessary. Far better to wring whatever momentary authority they can from the language of economics, or libertarianism, of judicial restraint, or neutral principles or original intent. Indeed, Mr. Bork often seems to be a person who has done just that. Each of these languages of power fulfil the necessary criteria for social analysis under the premises of liberalism. Each allows one to claim that one's political agenda is not merely desirable, but necessary, that it is no mere preference, but an inescapable and neutral truth.
The same pattern holds true at the level of day to day politics. Much everyday political debate consists of a slanging match between a liberals who appeal to a reified notion of 'progress' and conservatives who appeal to an equally reified notion of 'the free market.' As though the passage of time implied increased normative correctness! As though the abstract notion of individual choice could generate any particular institutional structure! What reason would conservatives in such a society have to develop a political vision which challenged the cozy banality of this appeal to necessary truths and neutral criteria? The only answer that comes to mind is 'boredom.' In such a world, an openly Burkean, a defiantly post-modern conservative philosophy would have at least novelty to recommend it. Instead of conducting all political discussion at one remove -- aiming at whatever temporary shelter the opponent has constructed to shield herself from the relativity of value, one could discuss the political visions themselves. Instead of arguing about who has drawn the correct neutral principles analysis of bussing from the warp and weft of the constitutional structure, one could argue about whether integration would help or hurt the development of a strong black culture. Instead of coating his arguments with spurious references to the true meaning of the history of the Fourteenth Amendment, Mr. Bork could come right out and reason from his faith in tradition, his trust of hierarchies, his unwillingness to disturb the edifice of civil society because of abstract claims to justice. I am not saying this is the most fundamental level of the discussion, that would be merely to re-enter the eternal minuet of liberal rationalism. But I do think that it is a more interesting level of the discussion and that claim might convince where metaphysical bludgeons fail.
In such a world Mr. Bork would be revealed for the political views which undoubtedly commend him now to his conservative friends, and which have held constant despite the apparently radical changes in his intellectual positions. What are those views? He is an able propagandist for a view of society which puts implicit trust in hierarchy. He has a firm belief in the 'innocence' of social inequality. Partly this is because he retains enough of his libertarianism to only see a deprivation of freedom where there is an intentional nefarious act by a defined individual actor. Wards Cove(104) offers Mr. Bork no particular villain, and thus he sees nothing wrong.(105) Partly, it is because he believes that the basic processes of society operate in spontaneous good order. If everything is running normally, what could be wrong with inequality, even structural inequality? To me, living in a city where someone's life can be predicted with a fair degree of accuracy simply by knowing their race or sex or class, these beliefs seem bizarre, crazy even. Mr. Bork's mythologised history is a constant struggle to keep pure the innocent heritage we have been left. My mythologised history is a set of dispersed and occasionally successful attempts to apply the idea of democracy to some new social institution -- generally over the objections of people like Mr. Bork who have argued successfully for eons that there are no less that seventeen immutable reasons why the status quo is simultaneously natural, inevitable and just.
Generally, then, Mr. Bork is inclined to trust all results reached in society, provided only that they appear to arise from spontaneous processes, rather than from the operation of some institutional will. There are exceptions, however. He seems to be willing to use force to maintain a particular vision of morality and family life, without asking whether the challenges to it are deliberate or structural. Similarly, his tolerance for hierarchy disappears when he talks about the knowledge elite rather than the monied elite. His trust in tradition does not run to the peculiarly American traditions of egalitarianism and social iconoclasm. Some of these views seem important to me. Most of them seem both wrong and pernicious. But if Mr. Bork is the herald of a post-modern conservatism, we might actually begin to talk about these issues, to reveal what conservatism has to offer apart from a shoddy and unconvincing set of claims to have captured the true meaning of history, economics or institutional competence. Best of all, at long last, the Everyman of conservative legal theory could rest from his twenty-seven year long process of denial.
Professor, Washington College of Law, American University. James Boyle © 1991. Thanks go to Lauren Dame, Bob Gordon, Andrea Ball, Jae Won Kim, Jamin Raskin, Jim May and Mark Hager. This article is dedicated to Burt Wechsler -- a lawyer for the powerless since before I was born, who is a colleague of ten years and an inspiration for life. [This article is made available for personal reading. While the author takes a realtively generous view of academic and other 'fair uses,' it may not be republished or included in any other collection of works without the permission of the author. Thanks.]
R. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990)
I use the word advisedly. Despite occasional comments to the contrary, Mr. Bork seems to envisage a set of conscious actions to 'subvert' the constitution, rather than the unconscious working out of a set of class-based ideas and attitudes. In this respect, of course, he parts company with Marx.
As the reader will gather from this article, my interest is less in intellectual taxonomy, than in exploring certain similar challenges which both pre-modern (republican, Burkean) and post-modern thought present to the tradition of liberal rationalism. For the post-modern side of the story see I. HASSAN, POSTmodernISM: A Paracritical Bibliography, in PARACRITICISMS: SEVEN SPECULATIONS OF THE TIMES 39 (1973); J. KRISTEVA, DESIRE IN LANGUAGE (L. Roudiez ed. 1979). Post-modern work is marked by a scepticism about the limits of abstract, rational discourse. [J. DERRIDA, OF GRAMMATOLOGY (1976)] and the about the accuracy of political theories built around the notion of 'the subject,' a rights-holding individual divorced form culture, tradition, language and history. [M. FOUCAULT, THE ORDER OF THINGS (1976)]. Stylistically it tends to rely on what David Kennedy calls 'ironic conformity' -- recreating tradition and history even as it uses them. Interestingly, Burkean conservatism is also marked by these three characteristics although it is, of course, very different in other ways -- being stodgier in sentiment, more reactionary in declared political vision, less pretentious in persona and infinitely superior in writing style. At first, the similarity seems bizarre. A moment's thought supplies a possible reason. Since each of these three characteristics was developed largely out of opposition to the dominant epistemology and political tradition of the age of reason, it is hardly surprising that they are encountered in works from both the beginning and the supposed end of that tradition. [Boyle, The Politics of Reason 133 University of Pennsylvania Law Review 685 (1985)]. Having pointed out that both Burkean and post-modern thought present a challenge to some of liberal rationalism's fundamental premises, rather than an argument within those premises, my interest in intellectual taxonomy is exhausted and the reader need fear no further footnotes like this one.
'Words are wise men's counters but they are the money of fools.' Thomas Hobbes. In order to avoid endless quibbles about definition, I use the term 'conservative' to refer to those who would use that term, among others, to describe their own political views. It is precisely because the term covers so many contradictory philosophies that Mr. Bork's intellectual peregrinations are so instructive.
A. BICKEL, THE LEAST DANGEROUS BRANCH (1962).
See R. POSNER, THE ECONOMIC ANALYSIS OF LAW (3d ed. 1986); M. POLINSKY, AN INTRODUCTION TO ECONOMIC ANALYSIS (2d ed. 1989); Baker, The Ideology of the Economic Analysis of Law, 5 Journal of Philosophy & Public Affairs 3 (1975); Kennedy, Cost-Benefit Analysis of Entitlement Problems: A Critique, 33 Stanford Law Review 387 (1981); Boyle, The Politics of Reason: Critical Legal Studies and Local Legal Thoughts, 133 University of Pennsylvania Law Review 685 (1985).
R. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 95 (1985).
A useful summary of such proposals can be found in Stanmeyer, Judicial Supremacy in THE NEW RIGHT PAPERS 142, 163-5 (R. Whitaker ed. 1982). Professor Stanmeyer is in favour of some, but not all of these suggestions. As his title suggests, his concern is most directly with judicial supremacy rather than judicial activism, though it seems clear that he believes the two to be integrally related.
Id. at 163.
Id. at 164.
Id. at 165.
Fleming, Old Rights and the New Right in THE NEW RIGHT PAPERS 180, 196 (R. Whitaker ed. 1982). Dr. Fleming later extends his argument to civil ceremonies as well. Id.
Id. at 196-7.
Fleming, supra note 12, at 184.
Bork, Civil Rights--A Challenge, The New Republic, Aug. 31, 1963, at 21.
Bork, The Supreme Court Needs a New Philosophy, Fortune, Dec. 1968, at 138.
Id. at 140.
Id. at 141.
Id. at 166,168.
Id. at 168-70.
Id. at 170.
Id. at 168-70.
Id. at 170. This was to be a fleeting moment of expansiveness. In 1968 it seemed 'inescapable' to Mr. Bork that the First Amendment, correctly interpreted, protected all human behavior. Three years later, he finished his Indiana Law Journal article, by saying 'I do not see how I can avoid the conclusions stated,' (Bork, infra note 32, at 35) namely that the First Amendment barely protected even political speech. Houdini beware!
Id. at 174.
R. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 95 (1985).
Civil Rights--A Challenge, supra note 15, at 21.
In fact, it is surprising how closely Mr. Bork's ideas mirror those of Roe v. Wade, 410 U.S. 113 (1973), particularly in the way that liberty of choice is developed through an idea that private choices are immune from majority scrutiny. Despite his later hostility to the 'right of privacy,' Mr. Bork himself thinks that his expansion of the rationale of First Amendment doctrine goes considerably beyond Griswold v. Connecticut, 381 U.S. 479 (1965). If economic activity is given the protection associated with non-political speech, what about reproductive choice? The same point can be made about his hostility to civil rights legislation. If interfering with whites' rights to refuse black customers involves a 'principle of unsurpassed ugliness,' what about interfering with a woman's control of her body? Finally, under Mr. Bork's public/private distinction, if an abortion was carried on in private, even if a majority found it morally abhorrent, it would be protected. It would appear that Mr. Bork's only possible response would be to class abortion as a 'crime' and thus free it from his libertarian principles. Such a response exposes the circularity in both sides of this argument (since the question of classification decides the analysis rather than following from it) and also means that he must engage in substantive discussion of individual issues, the very thing he claims to avoid.
Bork, Neutral Principles and some First Amendment Problems, 47 Indiana Law Journal 1, 35 (1971).
Id. at 9. His disillusionment did not stop there. Nineteen years later, (admittedly, an almost geological length of time in the protean intellectual world of Robert Bork) Griswold seemed to him 'a constitutional time bomb,' (p. 95) a case that rivalled Dred Scott v. Sandford, infra note 76, in its awfulness (p. 24).
Bork, supra note 32, at 8.
Bork, supra note 16, at 140-1.
Bork, supra note 32, at 14-5.
Id. at 10.
Id. n. 20.
The Wechslerian method is required because of the vagueries of historical interpretation. Mr. Bork is now willing to concede authoritativeness to the power of original intent, but has the same critical view of its determinacy. 'It is the fact that history does not reveal detailed choices.. that permits, indeed requires, resort to other methods of interpretation.' Id. at 13.
R. BORK, THE ANTITRUST PARADOX (1978).
Id. at 3.
Id. at 7.
Bork, supra note 32, at 8.
It is interesting to compare Mr. Bork's current reverence for the original understanding of the constitution with his polite condescension towards the authors of the Robinson-Patman Act who 'may well have been moved by an NRA-style philosophy' and an ignorance of economic consequences. Id. at 63.
Id. at 15.
Id. at 57.
Id. at 51.
Id. at 134.
See May, Antitrust Practice and Procedure in the Formative Era, 135 University of Pennsylvania Law Review 496 (1986).
For a more general account of the impact of law on classical and neoclassical economic thought and vice versa see Kennedy, The Role of Law in Economic Thought: Essays on the Fetishism of Commodities, 34 American University Law Review 939, 940-967 (1985); May, Antitrust in the Formative Era: Political and Economic Theory in Constitutional and Antitrust Analysis 1880-1918, 50 Ohio State Law Journal 258, 258-287 (1989).
May, supra note 52, at 593.
Bork, supra note 32, at 10.
Bork, supra, note 41, at 117.
Id. at 118. To be fair to Mr. Bork, other practitioners of the economic analysis of law have had a similarly dismissive attitude towards the complexities of the discipline they were colonising.
See for example, Bork, The Constitution, Original Intent and Economic Rights, 23 San Diego Law Review 823 (1986). 'I wish to demonstrate that original intent is the only legitimate basis for constitutional decision making.' Id. (emphasis added); 'The only way that the Constitution can constrain judges is if the judges interpret the document's words according to the intentions of those who drafted, proposed, and ratified its provisions and various amendments.' Id. at 826.
Hearings Before Senate Comm. on the Judiciary 100th Cong., 1st Sess. Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: art 1 at 84-85 (1987) [hereinafter Hearings].
Hearings, Id. Part 1 at 159 (1987).
Bork, supra note 58, at 823.
Compare Id. at 827-828 with The Tempting of America, at 148-9.
Id. at 827.
Searching for other possible interpretations, I wondered if Mr. Bork thinks original intent and original understanding are the same. In that case, why change his terms and say they are different? If on the other hand, they are not the same, why not admit he has changed his views and explain how he came to believe first that original intent was only permissible judicial philosophy (Id. at 826, 832) and then that original understanding was the only permissible judicial philosophy? (pp.9, 146 et passim).
Id. at 823.
Mr. Bork is stern in pointing out that lawmakers could not use the doctrine of subjective intention to weasel out of something they had said. 'If Congress enacted a statute outlawing the sale of automatic rifles and did so in the Senate by a vote of 51 to 49, no court would overturn a conviction because two Senators in the majority testified that they had really intended only to prohibit the use of such rifles. They said 'sale' and 'sale' it is. Thus, the common objection to the philosophy of original understanding -- that Madison kept his notes of the convention at Philadelphia secret for many years -- is off the mark. He knew that what mattered was public understanding, not subjective intentions.' (p. 144) One might imagine that the public understanding of 'original intent' would be 'original intent.'
'The search for the intent of the lawmaker is the everyday procedure of lawyers and judges when they must apply a statute, a contract, a will, or the opinion of a court.' (p.145.) 'In a constitutional democracy the moral content of the law must be given by the morality of the framer or legislator, never by the morality of the judge. The sole task of the latter -- and it is a task quite large enough for anyone's wisdom, skill and virtue-- is to translate the framer's or the legislator's morality into a rule to govern unforeseen circumstances.' Hanoch Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) (per curiam) (concurring ops. filed by Edwards, Bork and Robb, JJ.)' quoted in The Tempting of America at 178. See also Mr. Bork's approving quotation of a letter from the conservative intellectual historian Gertrude Himmelfarb decrying the move away from attention to the intent of the author. Id. at 137.
98 Harvard Law Review 885 (1985). For the subsequent controversy see also L. LEVY, ORIGINAL INTENT AND THE FRAMER'S CONSTITUTION (1988); Powell, The Modern Misunderstanding of Original Intent, 54 University of Chicago Law Review 1513 (1987); Berger, 'Original Intention' in Historical Perspective, 54 George Washington Law Review 296 (1986); Presser, The Original Misunderstanding: The English, The Americans, And The Dialectic of Federalist Constitutional Jurisprudence, 84 Northwestern Law Review 106 (1990).
Alexander Hamilton, Opinion on the Constitutionality of an Act to Establish a Bank (1791) reprinted in 8 PAPERS OF ALEXANDER HAMILTON 97, 111 (H. Syrett ed. 1965) at 103.
Mr. Bork argues rather weakly that even if the historical evidence does not support the theory of original understanding, we have to adopt in anyway because it meets his criteria of neutrality. Even if this were true, and it most assuredly is not, a theory which adopts the 'understanding' of a group of people who 'understood' that their understanding did not govern, is remarkable for its perversity rather than its cogency. While some theorists have embraced perversity as an aesthetic principle, Mr. Bork is not among them. Cf. A. BRETON, MANIFESTOES OF SURREALISM (1969).
The defense of the philosophy of original understanding, which seems to have convinced Mr. Bork is Professor Henry Monaghan's Stare Decisis and Consitutional Adjudication, 88 Columbia Law Review 723 (1988). Professor Monaghan implicitly reproves those who put forward 'intentionalist' versions of orginalism as providing 'an easy mark for critics of originalism.' Id. at 725. His example of an intentionalist who 'apparently' holds such as position is R. BERGER, FEDERALISM: THE FOUNDERS DESIGN (1987). Id. at n. 8. Interestingly, Professor Monaghan is 'forced to conclude that original understanding must give way in the face of transformative or longstanding precedent, a conclusion that in turn may make inevitable the unsettling acknowledgement that originalism and stare decisis themsleves are but two among several means of maintaining political stability and continuity in society.' Id. at 724. This conclusion is markedly more consistent with the Burkean vision of Mr. Bork's views which I present in Section VIII, than with the attempt to 'reason without prejudice' towards an abstract and neutral theory of constitutional law. The appearance of Professor Monaghan's article in 1988 may explain the sudden, complete and and unacknowledged reversal of Mr. Bork's opinions about original intent between 1986 and 1990.
In fact, a number of those commenting on The Tempting of America do not appear to be aware that Mr. Bork has changed his position from
intent' tounderstanding.' See e.g. Eric Foner's otherwise excellent review, 'Bork's notion of framers'
original intent' smells like big frameup,' In These Times, Feb. 14-20 p.18 (1990). Despite the title of his article, 'The Original Misunderstanding,' Stephen Presser seems to hold the same opinion. 'Judge Bork is a well-knownintentionalist,' a scholar who believes that it is appropriate and desirable for modern constitutional interpreters to try to understand the aims of those who framed the 1787 document and to implement the framer's intent.' Presser, The Original Misunderstanding, 84 Northwestern University Law Review 106 (1990). Admittedly, as will be seen later, Mr. Bork's position is not always either clear or consistent. He sometimes seems to be assuming that the audience at the time would understand the constitution to mean what they assumed the framers intended it to mean, thus merging the two positions. Leaving aside the circular problems of this argument, it is in fact unlikely that a contemporary legally trained reader would have 'understood' any such thing. For a definitive and whimsical study of the methodological difficulties involved in both versions of originalism see Bittker, The Bicentennial of the Jurisprudence of Original Intent, 77 California Law Review 235 (1989).
W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 1172-3 (1953).
See for example, 1 P. KURLAND & R. LERNER, THE FOUNDERS' CONSTITUTION (1987). After promising a 5 volume '`original understanding' of those who agitated for, proposed, argued over and ultimately voted for or against the Constitution of 1787' (id. at xi) the authors had this to say about the determinacy of the their findings. 'We are loath to dangle before the reader yet another promise that the crooked will be made straight and the rough places plain; we promise, rather, complexity and complication.' In my favourite article on originalism, Boris Bittker quoted the same passage and then, speaking through the mouth of a fictional character, described the founder's intent as 'a well stocked pantry waiting for an imaginative chef.' Bittker, supra note 73, at 251.
Dred Scott v. Sandford, 60 U.S. 19 How. 393 (1857).
Id. at 426.
In fact, Mr. Bork explicitly rejects such a process. 'The role of a judge committed to the philosophy of original understanding is not to 'choose a level of abstraction.' Rather it is to find the meaning of the text -- a process which includes finding its degree of generality which is part of its meaning...' (p. 149) That meaning, of course, can only come from text and original understanding, not from Kantian moral theory. Mr. Bork has been strongly criticised by liberal legal theorists, particularly by Ronald Dworkin, for his failure to 'purify' the original understanding by raising it to a higher level of generality. Ironically, the method Dworkin espouses is exactly the method Mr. Bork himself advocated in his writings in the late sixties and early seventies, albeit that Kant seems to have whispered different results into their respective ears.
Sloppy research seems the most charitable explanation for Mr. Bork's treatment of Dred Scott. Other parts of the book show that the pressure of timely publication may have worked its subtle magic on Mr. Bork's table of authorities. Admittedly, the relatively indiscriminate citation which results has its own charming compensations. Senator Edward Kennedy and Professor Duncan Kennedy will no doubt both be dismayed to find that the index has amalgamated them into a single person with an impressive, if varied, list of publications (p. 412).
Hence liberals argue that decisions about value should be solved by the aggregation of individual subjective choices. The democracy adds up our individual subjective values as expressed by votes, and the market adds up our individual subjective values as expressed by the dollars we spend. Mr. Bork appeals powerfully to this tradition when he claims that the effect of knowledge class's attack on original intent has been to take value judgements away from the legislatures. After all, questions on which reasonable people can disagree should properly be decided by democratically elected representatives, because judges do not have a superior insight into the moral or philosophical universe. Unelected judges should not impose their subjective views on others. Yet, to get to this point, he must argue that originalism is both correct and a-political. Surely this implies that some (unelected) people, Mr. Bork among them, do have a superior insight into the philosophical universe -- and are not at all chary about imposing their correct insight on others.
This, of course, is exactly Mr. Bork's criticism of the liberal jurisprudes and judges.
A. MacIntyre, After Virtue 6 (1984) quoted by Bork at 256.
And even there, I suspect he might be wrong given the traditional 'moral' justifications of sexism.
Though, to be fair, his treatment is completely even-handed. Richard Epstein's libertarian analysis of the constitution is treated in as summary a fashion as Paul Brest's progressive constitutional theory.
If you are thinking that there is a potential contradiction between these two premises, you're right. And therein lies the most common source of critiques of liberalism. For two very different such critiques see R. UNGER, KNOWLEDGE AND POLITICS (1975) ('The characteristic predicament of the modern lawyer is to argue constantly about policy, as if rational choice among competing values were possible, yet to remain faithful to the idea that values are subjective and to the political doctrine of which that idea is a part.') and Arrow's Impossibility Theorem (There are four minimum, but mutually exclusive, conditions which would have to be satisfied for social choice accurately to reflect popular preferences. Social choices would have to be transitive, free, based on 'endogenous' preferences and there could not be an inverse relationship between the popularity of a choice and society's tolerance of it. According to Arrow, all four conditions cannot be satisfied at once.) For problems in the conceptualisation of 'choice' in models relying on an Arrovian vision see Kelman, Choice and Utility, 1979 Wisconsin Law Review 769; A GUIDE TO CRITICAL LEGAL THEORY (1987).
I say fragmentary because it would be unfair to call Mr. Bork a systematic thinker. He seems uncomfortable with abstractions. This is not necessarily a criticism. In fact, it is the strength of many of his most interesting arguments. For example, he prefers to argue for moral relativism on the basis of the number of people who have tried and failed to build an objective moral theory, than to argue that the fact/norm dichotomy makes it conceptually impossible. In this, he is very like Burke.
'Intellectual presumption -- or self-confidence -- is the morale of the revolutionary, whereby he is enabled to call established order into question, in society, in the State, in the Church, in the family. This is the way in which ability makes its inroads into property. In using his magnificent intelligence to deprecate the claims of intelligence, Burke as usual, is discharging a double function. He serves the interests of the property owners, thus earning their gratitude. And at the same time he rehabilitates religion, and notably -- though discreetly and by indirection -- that form of religion which had most been exposed to the remorseless onslaughts of Reason.' C.C. O'Brien, Introduction, E.BURKE, Reflections on the Revolution in France 47 (1968).
Burke, Id. at 124.
Mr. Bork's has two, contradictory, responses to this point; one from his liberal side, the other from his Burkean side. His first response is to deny that the adoption of his theory is a political choice or that his theory embodies a particular set of values. In an echo of his long ago Wechslerian days, he argues that it is neutral in derivation and application. His second response is that the adoption of original understanding is a political choice, but that it was a choice 'made long ago by those who designed and enacted the Constitution' (p. 177) and that it does embody a particular set of values, but that they are the values of the Framers (and enacters.) The former argument suffers from the philosophical flaws pointed out in section VI. The latter, notwithstanding its perfect circularity, is dealt a death-blow by the problems of history discussed in the text accompanying notes 60-66. Finally, of course, both arguments cannot be true at the same time.
The best chroniclers of this aspect of the aspirations of the liberal state are, ironically enough, Marx and Hegel.
For a similar perspective from the opposite end of the political spectrum see Peller, Creationism, Evolution, and the New South, Tikkun, Nov.-Dec. 1987, at 72.
See generally SYMPOSIUM: Roads Not Taken: Undercurrents of Republican Thinking in Modern Constitutional Theory, 85 Northwestern University Law Review 1 (1990); Horwitz, Republicanism and Liberalism in American Constitutional Thought, 29 William and Mary Law Review 57 (1987); J. POCOCK, THE MACHIAVELLIAN MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION (1975); Sunstein, Beyond the Republican Revival, 97 Yale Law Journal 1539 (1988).
R. SCRUTON, THE MEANING OF CONSERVATISM 47 (1984).
Id. at 189-90.
Actually, there is even Burkean precedent for the specific method of original understanding, although the tone of his remarks is more instructive than their content.
Those who cultivate the memory of our revolution, and those who are attached to the constitution of this kingdom, will take good care how they are involved with persons who, under the pretext of zeal towards the Revolution and Constitution, too frequently wander from their true principles; and are ready on every occasion to depart from the firm but cautious and deliberate spirit which produced the one and presides in the other. Burke, supra note 89, at 86.
G. VICO, THE NEW SCIENCE ( M. Fisch & T. Bergin trans. 1968).
This is the point where the post-modern gloss on history may be useful. For the post-modernist, there is no choice whether or not to be influenced by past history, tradition, style and genre, but there may be a choice of which histories we choose. Where the modernist saw freedom as coming from a rejection of the forms provided by the past, the post-modernist sees freedom as existing between the opposing pulls of different traditions. The resulting collage can produce a wide range of effects. Burke deliberately downplayed the tradition of the Levellers and the Diggers, bowdlerised the Glorious Revolution, understated nationalist tensions, and minimised the popular attraction of liberal ideals in order to create his histoire of the great British traditions of government. In the hands of less skilled thinker, his mixture of unreflective royalism, 'ancient liberties,' natural law moralism and utilitarian arguments for private property would have seemed ridiculous. In his hands, it acquires an internal coherency of its own, akin to the counter-intuitive logic of fairy-tales. For Burke, the test of the mixture was its success in fostering stability and order. Yet the same mix-and-match style can be used produce exactly the opposite result. The post-modern building, with its Victorian garrets and Italianate columns and minaret cupolas, relies on the architectural traditions of the past, and yet denies them any absolute authority by juxtaposing them in bizarre and ironic patterns.
To say nothing of Irish, Scottish and Welsh.
Although that part of me which is still a liberal rationalist wishes that Mr. Bork could at least have used the work of some professional historians when inventing his.
R. SCRUTON, THE MEANING OF CONSERVATISM 191 (1984).
Wards Cove Parking Co. v. Antonio, 490 U.S. 642 (1989).
Los Angeles Times article."