Enemies of Democracy: A Distinguished Jurist Explains the Danger of Rule by Judges

All theories of constitutional law not based on the original understanding of those who framed and ratified the Constitution contain inherent and fatal flaws. That is true whether the theories are liberal or conservative. All of the revisionist theories advanced to date must be judged to have failed, and it might be sufficient to extrapolate from a steady series of failures to a conclusion that all attempts will fail. But I mean something more than that. Just as it is possible to show that the invention of a perpetual motion machine will never occur, not because of the repeated failures to build one but because the laws of physics exclude any possibility of future success, so too can it be demonstrated that there is no possibility of a successful revisionist theory of constitutional adjudication in a constitutional republic.

Every one of the proposed revisionist theories involves major moral choices. At some point, every theory not based on the original understanding (and therefore involving the creation of new constitutional rights or the abandonment of specified rights), requires the judge to make a major moral decision. That is inherent in the nature of revisionism. The principles of the actual Constitution make the judge’s major moral choices for him. When he goes beyond such principles, he is at once adrift on an uncertain sea of moral argument.

The revisionist theorist must demonstrate that judges have legitimate authority to impose their moral philosophy upon a citizenry that disagrees. If a warrant of that magnitude cannot be found, then, at a minimum, the judges must have a moral theory and persuade the public to accept it without simultaneously destroying the function of judicial supremacy. Moreover, the idea that the public, or even judges as a group, can be persuaded to agree on a moral philosophy necessarily rests upon a belief that not only is there a single correct moral theory but, in today’s circumstances, all people of good will and moderate intelligence must accept that theory. None of these things is possible.

There is no satisfactory explanation of why the judge has the authority to impose his morality upon us. Various authors have attempted to explain that but the explanations amount to little more than the assertion that judges have admirable capacities that we and our elected representatives lack. The utter dubiety of that assertion aside, the professors merely state a preference for rule by talented and benevolent autocrats over the self-government of ordinary folk. Whatever one thinks of that preference, and it seems to me morally repugnant, it is not our system of government, and those who advocate it propose a quiet revolution, made by judges.

Imagine how our polity could move from its present assumptions about democratic rule to the new form of government. The method apparently contemplated by the theorists is for judges slowly to increase the number of occasions on which they invalidate legislative decisions, always claiming that this is what the Constitution requires, until they effectively run the nation, or such aspects of policy as the professors care about. Not the least of the difficulties with that course is that it can succeed only by deception, which seems a dubious beginning for the reign of the higher morality. The other possibility, which does not require deception, is for judges to announce their decisions in opinions that state candidly: this decision bears no relation to the actual Constitution; we have invalidated your statute because of a moral choice we have made; and, for the following reasons, we are entitled to displace your moral choice with ours. The explanation of that last item is going to be a bit sticky. But that is what candor would require of a revisionist judge.

This brings us to the second difficulty with a constitutional jurisprudence based on judicial moral philosophizing. In order to gain the assent of the public, the judges’ explanation of why they are entitled to displace our moral choices with theirs would require that the judges be able to articulate a system of morality upon which all persons of good will and adequate intelligence must agree. If the basic institution of our republic, representative democracy, is to be replaced by the rule of a judicial oligarchy, then, at the very least, we must be persuaded that there is available to the oligarchy a systematic moral philosophy with which we cannot honestly disagree.

But if the people can be educated to understand and accept a superior moral philosophy, there would be no need for constitutional judges since legislation would embody the principles of that morality. It may be thought that moral-constitutional judging would still be required because legislators might misunderstand the application of the philosophy to particular issues. In that case, however, there would be no reason for courts to invalidate the legislation; they need only issue an opinion explaining the matter, and the legislation will be amended to conform. The courts need use coercion only if their moral philosophy is not in fact demonstrably superior.

The supposition that we might all agree to a single moral system will at once be felt by the reader to be so unrealistic as not to be worth discussion. There is a reason for that feeling, and it brings us to the third objection to all theories that require judges to make major moral choices.

The impropriety is most apparent in those theories that simply assert what choices the judge should make, for this is obviously nothing more than a demand that the theorist’s morality displace ours. But the same failure necessarily occurs in more elaborate theories that rest upon one or another of the various academic styles of moral philosophizing. (Though I think the argument that follows is correct, it is independent of the other reasons for rejecting all non-originalist theories of judging.) The failure of the law school theories is, of course, merely a special instance of the general failure of moral philosophy to attain its largest objectives. I do not mean that moral philosophy is a failed or useless enterprise. I mean only that moral philosophy has never succeeded in providing an overarching system that commands general assent.

Retail Philosophy

Nor do I mean that moral philosophy is alien to law and must be shunned in adjudication, but I do mean that it is valuable only at the retail level and disastrous at the wholesale. Moral reasoning can make judges aware of complexities and of the likenesses and dissimilarities of situations, all of which is essential in applying the ratifiers’ principles to new situations. That is, in fact, the ordinary method of legal reasoning. Moral philosophy has a role to play in constitutional law, but the role it has to play is in assisting judges in the continuing task of deciding whether a new case is inside or outside an old principle. Thus, both moral philosophy and legal reasoning are useful only over limited ranges and must accept from outside their own disciplines the starting points for analysis. The function moral argument must not attempt is the creation of new constitutional principles.

The claim that moral philosophy cannot create primary rules, or major premises, that we will all come to accept may be supported in two ways. The first reason to doubt that moral philosophy can ever arrive at a universally accepted system is simply that it never has. Or, at least, philosophers have never agreed on one. The revisionist theorists of the law schools are merely semiskilled moral philosophers, and it seems all the more unlikely that they will succeed where for centuries philosophers of genius have failed. The state of affairs in moral theory is summed up, accurately so far as I can tell, by Alasdair Maclntyre. After canvassing the failure of a succession of thinkers to justify particular systems of morality, Maclntyre says that if all that were involved was the failure of a succession of particular arguments, “it might appear that the trouble was merely that Kierkegaard, Kant, Diderot, Hume, Smith and their other contemporaries were not adroit enough in constructing arguments, so that an appropriate strategy would be to wait until some more powerful mind applied itself to the problems. And just this has been the strategy of the academic philosophical world, even though many professional philosophers might be a little embarrassed to admit it.”

Though the names of the players in the legal academic world have rather less resonance than the names on Maclntyre’s list, the situation is the same in the world of law school moral philosophy. In fact, that is one of the most entertaining aspects of this doomed enterprise. Each of the moral-constitutional theorists finds the theories of all the others deficient—and each is correct, all the others, as well as his own, are deficient.

The incredible difficulty, amounting to an impossibility, of the task these theorists have set themselves seems not to occur to them. You might suppose that the mere recitation of the names of the people who have been at this work, not just for centuries but for millennia, would daunt the law professors. It does not appear to.

The same bravado is observable in theorists of other branches of the law. Antitrust was for some time a body of incoherent doctrines. The situation was eventually retrieved in large measure through the application of decent economics to the rules governing competition and monopoly. But not everybody liked the new state of affairs. Articles written by lawyers claimed that microeconomic theory has little or no relation to the market reality it purports to describe and therefore should not be used in antitrust. I tried without success to persuade one or two such authors that if they were right, they had done a startling and wonderful thing. They had overthrown an intellectual discipline tracing back to Adam Smith and David Ricardo and forward to the likes of Milton Friedman and George Stigler. An intellectual upheaval of that magnitude ought not be hidden in some law review but should be published in a book directly attacking the entire body of price theory. If the attack is acknowledged a success, the author’s name will live forever. We are still waiting.

So it is with the moral philosophers of constitutional law. None of them, so far as I know, proposes simply to apply Kant or Hume to create new constitutional rights. Instead, they begin again, albeit with the help of various moral philosophers, to construct the morality they would have judges use to devise new constitutional rights. It seems not to occur to most such academics that they are undertaking to succeed where the greatest minds of the centuries are commonly thought to have failed. It seems not to occur to them that they ought, if they are confident of success, to move from their law schools to the philosophy departments of their universities and work out the structure of a just society without the pretense, harmful on both sides, that what they are teaching their students is, in some real sense, law. But perhaps it would be best if they simply dropped this line of work altogether and took up one where the odds on success are better. If the greatest minds of 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. It is my firm intention to give up reading this literature. There comes a time to stop visiting inventors’ garages to see if someone really has created a perpetual motion machine.

Perpetual Motion Machine

The difficulty with the idea of perpetual motion, as I have said, is not the accumulation of disappointments in all those garages but that there was no point in going to look in the first place. There is never going to be such a machine. Similarly, the problem with overarching systems of morality is not simply that the law professors are not as bright as Kant, Hume, et al. The problem is that their enterprise is doomed to failure, no matter how intellectually adroit they are. Their quest is doomed for reasons given by MacIntyre:

The most striking feature of contemporary moral utterance is that so much of it is used to express disagreements; and the most striking feature of the debates in which these disagreements are expressed is their interminable character… [T]hey apparently can find no terminus. There seems to be no rational way of securing moral agreement in our culture.

That is true, he says, because there is no longer a consensus about what man should become. Only a shared teleological view of the good for man can lead to common ground about which premises of morality are sound. Thus, MacIntyre is not claiming that moral knowledge is impossible or that there is not a correct moral view but only that, in our present circumstance, there is no possibility of agreement on the subject. Our public moral debates over such matters as abortion and capital punishment have been interminable and inconclusive because we start from different premises and have no way of convincing each other as to which are the proper premises. In fact, the law professors themselves cannot agree on the premises from which they should begin to reason, and the surprising amount of agreement on outcomes is attributable to the shared liberal political culture of the universities today. They are as unlikely to convince me as I am to convince them. That is why, where the real Constitution is mute, we should vote about these matters rather than litigate them.

Without agreement on the moral final state we do not know where we should be going and hence cannot agree upon the starting place for reasoning. If we have no way of judging rival premises, we have no way of arguing to moral conclusions that should be accepted by all. As MacIntyre writes, “In a society where there is no longer a shared conception of the community’s good as specified by the good for man, there can no longer either be any very substantial concept of what it is to contribute more or less to the achievement of that good.” The moral philosophers of constitutional revisionism will, for that reason, be unable to persuade all of us to accept either their premises or their conclusions. There is going to be no moral philosophy that can begin to justify courts in overriding democratic choices in matters where the Constitution does not speak.

The judge who takes as his guide the original understanding of the principles stated in the Constitution faces none of these difficulties. His first principles are given to him by the document, and he need only reason from these to see that those principles are vindicated in the cases brought before him. Nor is it an objection that those who ratified the Constitution may have lacked a shared systematic moral philosophy. They were elected legislators and under no obligation to justify moral and political choices by a philosophy to which all must consent.

The Griswold Fallacy

Some years ago I illustrated the difference between a judge and a legislator in a way that drew down a good deal of rhetorical abuse during my confirmation struggle. But being both stubborn and correct on this point, I shall employ the illustration once more and expand upon it. Given the fact that no provision of the Constitution spoke to the issue, my argument went, the Court could not reach its result in Griswold (overturning Connecticut’s ban on contraceptives) in a principled fashion. Given our lack of consensus on moral first principles, the reason is apparent. Every clash between a minority claiming freedom from regulation and a majority asserting its freedom to regulate requires a choice between the gratifications (or moral positions) of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own values preferences, upon which to weigh the competing claims. Compare the facts in Griswold with a hypothetical suit by an electric utility company and two of its customers to void a smoke pollution ordinance as unconstitutional.

In Griswold, a husband and wife (it was actually a pair of doctors who gave birth control information) assert that they wish to have sexual relation without fear of unwanted children. The law prohibiting the use of contraceptives impairs their sexual gratifications. The state can assert, and at one stage in the litigation did assert, that the majority of Connecticut’s citizens believes that the use of contraceptives is profoundly immoral. Knowledge that it is taking place and that the state makes no attempt to inhibit it causes those in the majority moral anguish and so impairs their gratifications.*

Let us turn to the challenge to the smoke pollution ordinance that raises the cost of producing electricity. The electric utility asserts that it wishes to produce electricity at a lower cost in order to reach a wider market and produce greater income for its shareholders. The company is only the proxy for its shareholders (as the doctors in Griswold were proxies for married couples), who may be people in need of income for retirement, for college tuition for their children, and for similar reasons. The two utility customers who join with the utility company in the challenge are a couple with very little income who are having difficulty keeping their home warm at high rates for electricity.

Neither the contraceptive nor the smoke pollution law is covered specifically or by obvious implication by any provision of the Constitution. In Griswold, there is no way for a judge to say that the majority is not entitled to its moral view; he can say only that he disagrees with it, but his disagreement is not enough to make the law invalid. The judge has no way to choose between the married couple’s gratifications (or moral positions) and the majority’s. He must, therefore, enforce the law. Similarly, there is no principled way for a. judge to prefer the utility company’s shareholders’ or its two customers’ gratifications to those of the majority who prefer clean air. This law, too, must be enforced.

We may put aside the objection, which seems to me itself dispositive, that the judge has no authority to impose upon society even a correct moral hierarchy of gratifications. I wish to make the additional point that, in today’s situation, for the reason given by Maclntyre, there is no objectively “correct” hierarchy to which the judge can appeal. But unless there is, unless we can rank forms of gratification, the judge must let the majority have its way. There is, however, no principled way to make the necessary distinctions. Why is sexual gratification more worthy than moral gratification? Why is the gratification of low-cost electricity or higher income more worthy than the pleasure of clean air? Indeed, if the two somehow came into conflict, why is the sexual pleasure of a just-married couple nobler than a warm apartment to an indigent elderly couple? There is no way to decide these questions other than by reference to some system of moral or ethical principles about which people can and do disagree. Because we disagree, we put such issues to a vote and, where the Constitution does not speak, the majority morality prevails.

This line of argument, which I have made before, has led some commentators to label me a moral relativist or a radical moral skeptic. Nothing could be further from the truth. Like most people, I believe I have moral understanding and live and vote accordingly. I regard Connecticut’s anticontraceptive law as wrong, would vote against it, and, when I lived in New Haven, had no idea the law even existed until it was challenged, for ideological and symbolic reasons, by professors I knew. I would probably also vote for the smoke control law, feel some sympathy for the share-holders, and vote for welfare payments to the indigent couple. Other people might make different choices, and the only way to settle such questions is by a vote, not a judge’s vote but ours. This means that, where the Constitution does not apply, the judge, while in his robes, must adopt a posture of moral abstention (which is very different from personal moral relativism), but he and the rest of us need not and should not adopt such a posture when entering the voting booth. It is there that our differences about moral choices are to be decided, if not resolved, until the next election.

No matter how tirelessly and ingeniously the theorists of constitutional revisionism labor, they will never succeed in making the results of their endeavors legitimate as constitutional law.

The Eternal Temptation

The most common charge leveled against the idea of interpreting each provision of the Constitution according to the understanding of the generation of the Americans who ratified and endorsed it is that better results can be, and have been, produced by ignoring what was intended. Often the accusation is stronger: The actual Constitution would allow that statute to stand, which would be intolerable.

This is the classic form of the eternal temptation: to trade the right of self-government for protection by benevolent judges. They are wiser and more humane than your fellow citizens, as shown by the fact that those citizens produced the statute which you and the judges abhor. What does legal reasoning matter if the judges know a good result when they see one?

This style of argumentation was used by almost every senator who opposed my confirmation. Senator Kennedy advanced it again and again in outraged tones. When I had criticized a judicial decision as unjustified by the Constitution, he would listen to no constitutional argument but would express moral horror that anyone could say a particular law could stand. But this form of rhetoric was followed by almost all the opposition, albeit usually in less savage terms. That fact in itself is unremarkable. Many senators have no idea that constitutional law is about anything other than results they like.

What is more remarkable is that so much of the scholarly literature takes the same form. In article after article one reads arguments, offered as though they were devastating refutations, which consist of nothing more than a list of desirable decisions the principles of the historic Constitution could not have produced. The fact that this argument can be taken seriously indicates the decayed state of today’s academy. It is a demonstration that law is being seduced by politics and is thereby losing its integrity as a discipline. If it continues on this course, law will cease to be what Holmes named it, the calling for thinkers, and become merely the province of emoters and sensitives.

Consider the inversion of legal reasoning now in vogue. The orthodox style was to listen to a controversy between people, ascertain the facts, and then determine which side of the dispute was better supported by the relevant body of legal doctrine, whether that doctrine was expressed in judicial opinions, statutes, or the Constitution. The lawyer, judge, or professor asked what words were in the texts of these materials and what was the best interpretation of those words. The object was to frame a rule that was correct and that decided the case. A universal form of legal education and reasoning was to frame hypothetical situations to test the limits of the rule and to discover whether in such situations the rule embodied a sensible reading of the underlying text. This form of analysis makes sense only if the object is to carry the intended meaning of the legal text forward into the decision of real controversies. The rule comes out of the Constitution.

The person who judges constitutional law by results reverses this process. He asks what decision in each case is politically or morally attractive to him, devises a rule that achieves that result, and then works backward. The rule does not come out of, but is forced into, the Constitution. There is nothing that can be called legal reasoning in this. It is a process of personal choice followed by rationalization; the major and minor premises do not lead to a result, the result produces the major and minor premises. There is, furthermore, no point in testing those premises by hypotheticals to determine what results they might produce in the future, because the future results will be chosen by personal desire and the premises will be abandoned or reshaped to fit the new desired outcome.

We have seen precisely this process at work with the general right of privacy. In Griswold, the Court wished to strike down a law forbidding the use of contraceptives and so fabricated a right of privacy whose rationale was the protection of the institution of marriage and “the sacred precincts of marital bedrooms.” A lawyer of the orthodox tradition, once he got past the impropriety of the creation of a new constitutional provision by judges, would begin to ask what other specific rights were necessary to protect the institution of marriage and the privacy of marital bedrooms. Did the inviolability of the marital bedroom protect the sexual abuse of women and children within its sacred precincts? Did these rationales protect all forms of sexuality within marriage, or only those freely consented to, and so on? Did the protection of the institution of marriage require rights not directly related to sexuality, rights that would override laws about the rearing of children, about premarital agreements concerning property and other matters, about the custody of children and the division of property in the event of divorce, rights about the descent of property upon the death of a spouse?

The lawyer who raises these questions would be wasting his time. The reasoning of Griswold was not meant to be taken seriously by judges, only by the general public. Eisenstadt struck down a law regulating the retail distribution of contraceptives. No invasion of the marital bedroom was even imaginable. And furthermore, the new right of privacy turned out to have nothing to do with protecting marriage, for the state was forbidden to place conditions on the sale of contraceptives to unmarried persons. The right of privacy now attached to the individual and enabled the individual to engage in a public transaction, a purchase. The result desired in Eisenstadt changed the rule that Griswold had placed in the Constitution. If the orthodox lawyer has not learned his lesson yet, he might start over to ask what was the scope of the amended right of privacy, “the right of the individual, married or single,” to be free from a class of laws called “unwarranted governmental intrusion” and defined only by a single example, “intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

When Roe v. Wade was decided, we were not even told what was the rationale or the principle, simply that an operation by a physician to destroy a fetus was within the right of “privacy.” Eisenstadt and Roe made it clear that the right of privacy had nothing to do with privacy. The dissent subscribed to by four justices in Bowers v. Hardwick (where the majority opinion upheld an anti-sodomy statute) viewed the privacy right as also not restricted to the decision to bear a child but, apparently, as broad enough to encompass sexual pleasure generally. Griswold turned out not to be about the police in the bedroom but the nose of the judicial camel in the people’s tent.

The premises for such decisions do not come out of the Constitution but are thrust into the Constitution and keep changing as the desired result changes. The Court employs a sort of reverse syllogism: From the result we may infer the minor and major premises. It is hardly worth the bother of drawing the inference, however, because those premises are valid only for today’s decision and will change with tomorrow’s.

This results-first, premises-to-follow form of legal “reasoning” is to law what Robert Frost said free verse was to poetry: “tennis with the net down.” There are no rules, only passions.

Well, why not? Aren’t results more important to people than processes? Isn’t the insistence upon reasoning from the actual principles of the Constitution an arid intellectualism that ignores human yearnings? An adherence to logical systems at the expense of social justice? One answer is that the result that is “good,” though not justified by the Constitution, is not the result that the elected representatives of the people thought good. Thus, the ultimate answer is that legal reasoning is an intellectual enterprise essential to the preservation of freedom and democracy.

When a court strikes down a statute, it always denies the freedom of the people who voted for the representatives who enacted the law. We accept that more readily when the decision is based upon a fair reading of a constitutional provision. The Constitution, after all, was designed to remove a number of subjects from democratic control, subjects ranging from the composition of the Houses of Congress to the freedoms guaranteed by the Bill of Rights. But when the Court, without warrant in the Constitution, strikes down a democratically produced statute, that act substitutes the will of a majority of nine lawyers for the will of the people. That is what is always involved when constitutional adjudication proceeds by a concern for results rather than by concern for reasoning from original understanding. That is what is approved by law professors and politicians, two groups that are not as distinct as they once were, who assess decisions by sympathy or lack of sympathy with the results. For such people, a judicial nominee’s character, professionalism, and intellectual capacity are far less important than that he follow the politically correct line.

Legal reasoning, which is rooted in a concern for legitimate process rather than preferred results, is an instrument designed to restrict judges to their proper role in a constitutional democracy. That style of analysis marks off the line between judicial power and legislative power, which is to say that it preserves the constitutional separation of powers, which is to say that it preserves both democratic freedom and individual freedom. Yet legal reasoning must begin with a body of rules or principles of major premises that are independent of the judge’s preferences. That, as we have seen, is impossible under any philosophy of judging other than the view that the original understanding of the Constitution is the exclusive source for those exterior principles.

The person who understands these issues and nevertheless continues to judge constitutional philosophy by sympathy with its results must, if he is candid, also admit that he is prepared to sacrifice democracy in order that his moral views may prevail. He calls for civil disobedience by judges and claims for the Supreme Court an institutionalized role as a perpetrator of limited coups d’etat. He believes in the triumph of the will. It is not clear why he does not advocate rioting or physical force, so long, of course, as the end is good as he sees the good.

Such a man occupies an impossible philosophic position. What can he say of a Court that does not share his politics or his morality? What can an admirer of the Warren Court say if the Supreme Court should become dominated by conservative activists? What can he say of the Taney Court’s Dred Scott decision? He cannot say that the decision was the exercise of an illegitimate power because he has already conceded that power. There seems nothing he can say except that the Court is politically wrong and that he is morally justified in evading its rulings whenever he can and overthrowing it if possible in order to replace it with a body that will produce results he likes. In his view, the Court has no legitimacy as a legal institution. This being the case, the advocate of a political, value-choosing (rather than value-implementing) Court must answer another difficult question. Why should the Court, a committee of nine lawyers, be the sole agent for overriding democratic outcomes? The man who prefers results to processes has no reason to say that the Court is more legitimate than any other institution capable of wielding power. If the Court will not agree with him, why not argue his case to some other group, say the Joint Chiefs of Staff, a body with rather better means for enforcing its decisions? No answer exists.

  • Robert H. Bork

    Robert Heron Bork (1927 – 2012) was an American legal scholar who advocated the judicial philosophy of originalism. Bork served as a Yale Law School professor, Solicitor General, Acting Attorney General, and a judge of the United States Court of Appeals for the District of Columbia Circuit. In 1987, he was nominated to the Supreme Court by President Ronald Reagan, but the Senate rejected his nomination. Bork had more success as an antitrust scholar, where his once-idiosyncratic view that antitrust law should focus on maximizing consumer welfare has come to dominate American legal thinking on the subject.

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