Robert H. Bork continues to be vilified and acclaimed. The vilification has somewhat diminished now that Bork’s enemies have eliminated him as a candidate for the Supreme Court. Doubtless, too, many vilifiers, unable to feel shame over their harassment of Bork, have nonetheless felt embarrassment. The public, especially since Bork’s best-selling counterattack, The Tempting of America, now better perceives the great gifts of Robert Bork and the meanness of those who succeeded in denying him the justiceship.
In fact, acclamation of Bork has now grown to a virtual din. Citizens, outraged by the Supreme Court’s insistence that the Constitution mandates decisions destructive of personal liberties or of the good order of society, rejoice that at last the “something terribly wrong” which they sensed in those decisions is now being trenchantly exposed and vehemently castigated by a scholar-judge of formidable national stature. Further, The Tempting of America is inevitably reaching the large population of the nation’s law schools. By and large the law faculties have been active idea-generators, especially for our federal courts. The professors are predominantly liberal-statist in both outlook and zeal. Since Bork’s book is a devastating expose of the intellectual frauds perpetrated by the liberal law faculties, and since the faculties are busy damning it, the book is now enjoying that popularity among students which is often accorded forbidden books and provoking in many of them a healthful skepticism toward their teachers’ dogmas.
Thus there is cause for hope that effective voices, from the general public and from a new generation of lawyers, will attack certain doctrinal views that still predominate in the Supreme Court (and hence in the lower federal and state courts) and will help the nation to a sounder jurisprudence. If this occurs, a debt of gratitude will be owed to Robert Bork for stirring up the badly needed debate.
While Bork testified at the Senate confirmation hearings that his philosophy of judging was “neither liberal nor conservative,” many praise him as a champion—nay, the champion—of judicial conservatism. “Conservative,” a term often carelessly used, is also a term variously defined. Chasms of difference on policy may lie between people calling themselves “conservative.” Is the Republican congressman who crusades for budget reduction and votes pro-abortion a “conservative”? Is the Catholic prelate who is tenaciously orthodox on matters of sexual morality and who champions the wildest of social and spending schemes a “conservative”? It all depends on what one means by “conservative.”
Major political leaders and bar members described in the media as “conservative” testified at the Senate hearings on Bork’s behalf as the chosen candidate of a conservative president. Beverly LaHaye spoke for the Religious Right when she called Bork “a sterling nominee ‘; her organization amassed 76,000 signatures on petitions in his support. Since his confirmation was rejected, Bork has been based at the American Enterprise Institute, widely described as a “conservative” think tank, and groups throughout the country that call themselves “conservative” have received him with heroes’ welcomes as they have celebrated his appearances on their platforms. Lawyers advocating Bork’s theories as “conservative” may soon establish beachheads on the shores of liberal jurisprudence and make gains through judicial selection processes where “conservatives” may have clout to set judgeship qualifications. If Bork, in public understanding, is a “judicial conservative,” it becomes important to know of what that conservatism may consist.
“Judicial conservatism” (and Bork’s philosophy of judging) is as famous for what it is against as for what it is for. To many, its intense attractiveness lies first in its negative side. It arraigns those Supreme Court justices, law professors, and their media supporters who regard the American Constitution as, at best, an archaic scroll whose words should have only what meaning the subjective ideology of a present-day judge chooses to impart to them. The Aesopian label for this is the “living Constitution.” In the view of the “living Constitution’s” chief expositor, Justice William J. Brennan, Jr., it is essential that the needs of contemporary society be addressed by justices, and that justices not be limited, in their judgments, to the understandings of those who wrote particular constitutional provisions. Under the “living Constitution,” the Supreme Court is free to say that the killing of the unborn—unthinkable to the authors of the Constitution’s Bill of Rights—is a “fundamental right.” Under the same view, all laws created by legislatures are subject to nullification by the Supreme Court. It is against this “judge-made” law that Bork and “judicial conservatives” have inveighed.
But their case is not merely negative. Asked about what they are for, Bork (and judicial conservatives) make two main affirmations, couched in the now famous phrases, “original understanding” and “separation of powers.” Expanding on the theme of “original understanding,” they tell you that, just as the terms of a contract can have only that meaning which the parties to it understood and intended it to have, so with all other written instruments—including the Constitution. If the people desire the Constitution to contain new rights or powers, or to omit rights or powers it already contains, they may exercise the important liberty of amending the Constitution.
Bork’s so-called judicial conservatism also stresses the value to democracy of the separation of powers. Of the three branches of government, the elected legislature is closest to the people. Only where the legislature plainly violates the Constitution, as the Constitution was originally understood, may a court void an act of the legislature. Nullifications of legislation by the Supreme Court of the United States should be extremely rare especially considering that the Court is non-elected, and consists of but nine citizens, one of whom—out of a nation of 240,000,000 citizens—may cast the deciding vote. Restraint should therefore characterize the judiciary, and in no court is restraint more essential than in that court where it has least been practiced, the Supreme Court of the United States. Bork foresees the bright possibility that we will be a free and good society through faithful reliance on the Constitution—the Constitution as it was intended.
Often overlooked by Bork enthusiasts is the fact that his philosophy of the law covers far more than the negations and affirmations I have just mentioned. Ultimately, Bork’s most important teaching pertains to the nature of law. That teaching requires the conclusion that, however praiseworthy we may find Bork’s criticisms of judicial liberalism, his criticism is basically not that of a conservative.
Russell Kirk states in his classic The Conservative Mind that the “first canon” of conservative thought is: “belief in a transcendent order, or body of natural law, which rules society as well as conscience.” Kirk, in support of that canon, draws comprehensively both upon the testimony of great philosophers and leaders of the past and upon the testimony of history.
Certainly this “higher law” concept is profoundly embedded in American constitutional law. While secularists such as Leo Pfeffer often point to the fact that the preamble to the Constitution is antiseptically secular, making no mention of God, they resolutely ignore the preamble to the preamble, the Declaration of Independence. The Declaration states that our fundamental rights are an endowment by our Creator; it rules out by the clearest implication kings, dictators, legislatures, the people, or even authors of constitutions as the sources of those rights. It would be unreasonable to argue that the Constitution was not conceived in terms of that “original understanding” of the Declaration. And even though judges, as cases came into our courts involving human liberties, might not have expressly referred to God as the source of fundamental rights, it would be expected that they would find it necessary, upon occasion, to have recourse to some ultimate principle of justice, abstract only in the sense that it was not spelled out, in black print, on the face of the Constitution.
As early in our constitutional history as 1810 the Supreme Court expressly recognized that judges may and should at times have recourse to principles outside of the Constitution—principles of natural justice which may prescribe limits on legislative power. Especially in interpreting the phrase “due process of law,” found both in the Fifth and Fourteenth Amendments to the Constitution, has the Court affirmed ultimate reliance on “a transcendent order… which rules society as well as conscience.” These affirmations have been stated in various ways, e.g., “certain immutable principles of justice,” rights “implicit in the concept of ordered liberty” or “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
Such is our constitutional tradition, one expressive of a conservatism related to the transcendental. Bork rejects that tradition utterly. In his now famous Indiana Law Journal article of 1971, Bork said that judges “can have nothing to do with any absolute set of truths existing independently and depending upon God or the nature of the universe. If a judge should claim to have access to such a body of truths, to possess a volume of the annotated natural law, we would, quite justifiably, suspect that the source of the revelation was really no more exalted than the judge’s viscera. In our system there is no absolute set of truths, to which the term ‘political truth’ can refer.”
Two decades later, Bork’s view has not changed, and his caricature (the judge who possesses “a volume of the annotated natural law”) is especially persuasive following such outlandish examples as Roe v. Wade in which, employing a home-made doctrine of “privacy,” the Supreme Court set in motion the killing of millions of preborn children. Bork’s supporters claim that Bork’s limiting view of judicial power would protect against such errant decisions. No longer would the justices be playing the Constitution like fiddlers without a score. (I hope there is no need to stress that Bork rejects neither God nor God’s laws; he simply doesn’t want earthly judges barging into God’s act!)
In no aspect of his teaching does Bork more strongly reject judges’ invoking of “higher law” than in his view of the aforementioned due process clauses. He believes that these clauses have been a major source of judge-made law. The clauses say that government may not deprive anyone of “life, liberty or property without due process of law.” Supreme Court justices have many times utilized the word “liberty,” as found in the clauses, to declare void legislative enactments which they felt conflicted with some kind of “liberty.” To Bork “due process” means fair procedures only. As he puts it, due process is “simply a requirement that the substance of any law be applied to a person through fair procedures by any tribunal hearing a case.” He adds: “The clause says nothing about what the substance of the law must be.”
Bork admits that his view of due process runs counter to what, in case after case, the Supreme Court has held since 1798—courts by no means comprised of Earl Warren liberals. In 1819, the Court, in Bank of Columbus v. Okely, identified the source of our “due process” concept as Magna Carta, and said that the concept was “intended to sever the individual from the arbitrary exercise of the powers of government.” In the English medieval tradition, the power of judges to override acts of Parliament which were “against common right and reason” was recognized. For better or worse, this idea, or what is called “substantive” (as opposed to “procedural”) due process, is deeply established in our jurisprudence—with the concomitant duty and power of judges to require its observance.
If the weight of history is contrary to Bork’s view, so, too, I feel, is the weight of logic. If “due process” refers only to procedure, then legislatures have frighteningly wide powers. If a statute is enacted requiring abortion for any pregnant woman who already has two children, not a syllable in the present Constitution bars enforcement of that law—unless a court would rule that enforcement would deprive the woman of liberty, or her preborn child of life, “without due process of law.” The court, if it did, would be invoking “substantive” due process. But in the view of Bork, and his like-minded supporters, if the woman was accorded fair procedures (being served the right papers, given proper service of process, notice, and an adequate hearing) enforcement should proceed.
Bork’s view of the due process clauses (and other constitutional provisions on the bases of which courts may invoke “higher law” principles) has indeed troublesome ramifications. Few decisions of the Supreme Court have been regarded as more highly protective of parental rights than the Court’s 1925 decision in Pierce v. Society of Sisters, holding that Oregon could not force all children to attend public schools. The Court said that “the fundamental theory of liberty excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only,” that “the child is not the mere creature of the state” (emphasis added). There being no black-letter print in the Constitution which specifies “parental rights” as being protected, Bork believes it excessive for the Court to have found that protection in the Fourteenth Amendment’s due process clause.
In its 1972 decision in Wisconsin v. Yoder, the Court held that Wisconsin could not, in criminal proceedings, enforce its truancy law to compel Amish children to attend high school, contrary to ancient principles of the Amish faith. The Court held that the state’s interest in universal education was not absolute when it “impinged on fundamental rights” such as religious liberty and “the traditional interest of parents with respect to the religious upbringing of their children.” Bork is highly critical of the Yoder decision.
Since I have long been close to Amish people and had represented them in Yoder, I was especially taken with the practical implications of his view of their case. My clients, impecunious farmers, were barred by the commands of their religion from enrolling their children in high school. Because of that they were proceeded against criminally. Had Robert Bork decided the case, the Amish would have to have been jailed. Thereafter they would, once again in their 400-year history, be refugees in search of a place in which they could peaceably live their religious life. If they received only “procedural” due process—summons and complaint, timely service, with requisite number of copies, a court session in which they could be heard—they would, in the Bork view, have been accorded all the rights in court to which they were entitled.
Bork, in a 1988 address to the Catholic League for Religious and Civil Rights, did not allay such concerns over the potential impact of his views on religious liberty. He warned that the sort of “expansion” of constitutional religious protection afforded the Amish in Yoder would tend to “favor fringe religions and cults and to discriminate against mainline churches.” Religion “as a whole” might thus be weakened, he felt, and groups made free “to create new sects and demand privileges for them.” And he went so far as to contend that what he called the “exemption” of the Amish in Yoder may have actually “established” the Amish religion.
I greeted with dismay these statements (which were later published, and which are elaborated in The Tempting of America). On the one hand was their establishmentarian thrust (protect the mainline churches, beware of “new sects”) which is radically counter to our long tradition of hospitality to religious pluralism. On the other was a wholly false concept of the free exercise of religion. The First Amendment to the Constitution posits freedom in all that may be called religious activity. That freedom has been traditionally regarded as a free-standing right, limitable only in the name of some supreme societal interest (the Court long ago gave religious human sacrifice as an example).
Since it is a freedom, recognition of its enjoyment is not an “exemption.” In Yoder the Court granted the Amish no exemption; it recognized their right, existing in the Constitution, to educate their children according to the Amish faith. Bork’s conversion of the “exemption” in Yoder to the Court’s “establishment” of the Amish religion is vintage left-liberal doctrine: that if government accommodates religious exercise, it thereby violates the Establishment Clause.
But the Amish, in Bork’s view, would not have been left without recourse. If citizens do not like a particular law they may avail themselves of the democratic processes to get the legislature to change it. Further, if the courts interpret the Constitution in a way that seems oppressive, citizens may seek to have the Constitution amended. Obviously, for many a citizen, especially religious and racial minorities, these avenues of recourse are blind alleys. Few people can organize lobbies, fund PACs, or pay for major media promotions. Especially where the group that needs legal protection is small, legislation protecting its rights may be all but impossible to achieve. And, as even the well-financed ERA movement found out, amending the Constitution (which has occurred but ten times in the past century) demands, as indeed it should, a well nigh universal consensus.
My complaints about the shortcomings of these avenues of recourse may be dismissed as reflecting the impatience of a trial lawyer for the quick relief he may hope to get his clients from the judiciary. Bork’s pointing instead to the avenues of legislation and constitutional amendment is not, one may assume, out of Olympian detachment or hardness of scholarly heart, but simply because of his belief that our constitutional system, and hence our rights, depend ultimately upon but one thing: the will of the people expressed through forms which they have established in their constitutions and their statutes.
I think of Bork as akin to Jeremy Bentham. While not strictly accurate, I think my characterization not far off the mark. Bork’s noble respect for the rule of law contrasts sharply with the scruffy utilitarianism of Bentham. Bentham and Bork differ as to the nature of law, in that Bork believes a constitution may properly limit the legislative will whereas Bentham did not. But they agree in their view that the will of the people—the majority—is the ultimate source of rights.
It may be that, under Bork’s view, the people would not be precluded from creating statutes and constitutions which embody “higher law” commands—that the people could even amend us into a theocracy. But I feel—both practically and, above all, in principle—that it is not enough to say that society is free to make good laws, if courts are not free to void bad laws. Bork holds that courts are indeed free to void bad laws but may never do so on a ground rooted only in moral principles rather than located within our Constitution’s wording. The ancient tradition of our law has always seen our courts as empowered to relieve against the injustice or severity of acts of kings, parliaments, presidents, or legislatures. It is testimony to the greatness of our legal system that it has at times vindicated human liberties solely on the ground that they were regarded as “unalienable” rights. Bork either ignores these good decisions or, as in the instance of the Amish, treats them with surprising narrowness—indeed, inaccuracy.
But do I not thus argue for the kind of despotic judiciary which gave us Roe v. Wade Indeed, not. The remedy for that is not to deprive the judiciary of its power to do right, but to install in it justices who espouse the moral principles of our tradition. Especially at the federal legislative level, centralizing tendencies are evident, far worse indeed than Bork finds in the Supreme Court. And heavily financed groups more and more seek to impose, through legislation, a fictional “will of the people” that would create a secularist social order. Fr. John Courtney Murray recognized, three decades ago, the importance to our law of the philosophia perennis of natural law:
It is not enough for us to be able to concoct the written letter unless we are likewise able to justify, in terms of ultimates in our own thinking about the nature of man, our assertion that the rights we list are indeed rights and therefore inviolable, and human rights and therefore inalienable. Otherwise we are writing on sand in a time of hurricanes and floods.
We must continue to insist upon the right and duty of courts to make that assertion.