Bork as Battleground on the Right — The Soul of a Congressman

The framers designed a Supreme Court with an eye toward protecting their hard‐​won liberties. The justices who sit on that court should be committed to the full exercise of its role in the system of checks and balances envisioned by the framers.

September 14, 1987 • Commentary
This article appeared in The Wall Street Journal on September 14, 1987.

The debate raging over Judge Robert Bork’s nomination to the U.S. Supreme Court, miscast as a partisan struggle over issues, confirms George Orwell’s insight that careless language can corrupt thought. Let’s see, if I’m a conservative I must be for Judge Bork. If I’m a liberal, I’m against him.

Judge Bork himself realizes the folly of the debate. While groups ranging from the National Abortion Rights Action League to the Fraternal Order of Police engage in frenzied lobbying, the nominee shakes his head in quiet dismay. Look, he says, “the philosophy of judging according to the intent of the legislature … is neither a conservative nor a liberal philosophy. It just doesn’t cut that way. It’s a philosophy of judging.”

Indeed it is, and Judge Bork is its most articulate advocate. Properly, the debate should focus on Judge Bork’s philosophy of judicial restraint or, as he sometimes refers to it, “intentionalism” (as in original intent). His outspokenness on a variety of topical political issues may be titillating, but Judge Bork has a point when he says his “political outlook has little to do with judicial philosophy.”

Interestingly, if the debate over Judge Bork did focus on philosophy rather than issues, the nomination might well prompt considerable support from liberals and opposition from conservatives.

The philosophy of judicial restraint represents, at bottom, a desire to minimize the role of the Supreme Court vis‐​a‐​vis the other two branches of government. It is a majoritarian approach that plays down the importance of individual rights. As Judge Bork told an American Enterprise Institute audience in 1984, “The original Constitution was devoted primarily to the mechanisms of democratic choice.”

Intelligent liberals such as former Carter administration lawyer Lloyd Cutler and Washington Post columnist Michael Barone note that such an approach is not necessarily at odds with the goals of the left. Noting that 61% of state legislators are Democrats, Mr. Barone writes that liberals “should be looking for justices and doctrines that will let legislatures’ acts stand… . Liberals are not likely to be granted another Reagan appointee who would be better for them than Bork.”

If the overwhelming opposition to the Bork nomination on the part of the left is unwarranted, the unanimity of conservative support would appear even less justified. Certainly populist conservatives who stress “community values” over individual rights and hope to pass social legislation through state legislatures have reason to find Judge Bork’s candidacy attractive. As Judge Bork put it in 1984, “The major freedom … of our kind of society is the freedom to choose to have a public morality.” The free‐​market, limited‐​government wing of conservatism, however, would seem to have cause to be extremely wary of a man whose stated goal is to give the very engines of government growth — state and federal legislatures — a freer hand.

The support of free‐​market conservatives for Judge Bork is perhaps the most interesting aspect of the entire nomination debate, more so than the left’s opposition. The latter’s shortsightedness concerning Judge Bork’s philosophy can at least be attributed to their contempt for his positions on specific issues. But the free‐​market support is something else again. It reveals a surprising corrosion of the limited‐​government ideology within the conservative movement that has occurred, ironically enough, during the Reagan presidency. An administration that began full of fire and commitment to the free market and individual rights, now in its twilight, lamely offers forth Judge Bork, proudly committed to “moral skepticism” — the idea that political philosophy is irrelevant to constitutional deliberation.

Although a growing number of conservative judicial thinkers would like to see the courts reassert themselves in protecting the economic liberties guaranteed in Article I and the Fifth and 14th amendments, Judge Bork is not among them. “Perhaps,” he writes, these clauses “have not been given their proper force. But that is not my concern.” To support them “works a massive shift away from democracy and toward judicial rule.”

Why, then, this free‐​market conservative support?

Presumably some of it (perhaps a great deal) is simply attributable to the fact that it was President Reagan who placed Judge Bork’s name in nomination. Mr. Reagan, after all, is usually identified with the limited‐​government conservatives. But also, they see among Judge Bork’s opponents some activists on the left who have used the judiciary to expand state powers beyond even those created by legislation, and figure that “the enemy of my enemy is my friend.”

Another possible explanation for this support of Judge Bork lies in his advocacy of the jurisprudence of original intent. “The framers’ intentions with respect to freedom are the sole legitimate premise from which constitutional analysis may proceed,” he said in the 1984 talk.

The problem with this line of reasoning lies not so much in the oft‐​noted difficulty in determining intent (sparse records of debate; whose intent — the draftees’, ratifiers’, state delegates’?) as it does with the sleight‐​of‐​hand invocation of the framers’ intentions and simultaneous rejection of their philosophy. By focusing narrowly on the “strict construction” of the Constitution, Judge Bork and other advocates of judicial restraint are too willing to overlook the obvious general nature of most constitutional phrasing and conclude that, absent specific reference to issues of the day, the framers intended government to have sweeping powers to regulate personal behavior and economic activity.

But this approach is disingenuous at best. For if the framers intended anything, it was that the Supreme Court would be, in Madison’s words, an “impenetrable bulwark against every assumption of power in the legislative branches.” The Supreme Court was viewed as the one branch that would protect individual rights and preserve limited government against the inevitable transgressions of majorities as manifested through legislatures.

Indeed, the framers are constantly warning against majoritarianism and the proclivity of governments to grow and to usurp power. Madison noted that the “danger of oppression … lies in the majority of the community.”

The Lockean philosophy (“life, liberty and property”) inherent in so much of the framers’ work maintains that rights exist in man independent of government, that they are “unalienable,” as the Declaration of Independence puts it. The recently uncovered Roger Sherman draft of the Bill of Rights underscores the degree to which this philosophy dominated the political thinking of the period. His second amendment began, “The people have certain natural rights which are retained by them when they enter into society.” Similar wording was in fact incorporated into many state constitutions. Doubters can find any number of legislative acts during the period that might seem to belie such fundamental attachments, but in the broader context these emerge as exceptions and not the rule.

Judge Bork’s views are fundamentally at odds with this philosophy of the framers. There are no rights antecedent to the Constitution, he argues. “The effort to create individual rights out of a general, abstract, moral philosophy,” he told an interviewer in 1985, “is doomed to failure from the beginning because I don’t think there is any version of moral philosophy that can claim to be absolutely superior to all others.” Such moral skepticism rejects the very philosophy that lends substance and texture to the framers’ Constitution. Its crabbed view of rights leads to legal positivism — what’s right is what the lawmakers say is right. The framework within which freedom and free markets may prosper is rendered impotent against the legislative onslaught.

The framers designed a Supreme Court with an eye toward protecting their hard‐​won liberties. The justices who sit on that court should be committed to the full exercise of its role in the system of checks and balances envisioned by the framers. Robert Bork’s palpable deference to legislatures and majorities reveals the soul of a congressman, not a high‐​court justice.

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