The following commentary was prepared for the The Federalist Society Online Debate Series in response to an article by Judge Robert Bork titled "Individual Liberty and the Constitution."
Few have done more over the years to articulate the conservative response to liberal judicial activism than Judge Robert Bork. Writing recently in The American Spectator, he argues that courts, working reciprocally with elite opinion, have given constitutional finality to values most Americans oppose, "in a way that cannot be overturned by legislation." Thus undermined is our "first freedom"—"the power of individuals to participate in making the laws by which they are governed."
Bork is right about that. His concern, in particular, about the role of elite opinion in coarsening our culture is well taken. But my charge here is to comment critically, if briefly, so I turn to what I believe is the argument's central flaw—nothing less than its constitutional vision, which keeps Bork from fully appreciating the main problem today, the triumph of the Progressive Era mindset.
At bottom, Bork's constitutional vision rests not in individual but in collective liberty. Thus, his "first freedom" echoes his more ample discussion in The Tempting of America. There he wrote that our first principle is "that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities." Nonetheless, he adds, there are "some areas of life in which the individual must be free of majority rule."
Calling those conflicting principles "the Madisonian dilemma," Bork in fact has Madison standing on his head. Not only in the Declaration of Independence—our founding document—but in Madison's Constitution as well we find individual liberty first, democratic rule second, as a means to securing liberty. The Preamble, in the state-of-nature tradition, makes it plain that all power rests originally with the people, as individuals. To be sure, they come together collectively to "ordain and establish this Constitution," but then they "grant" only limited powers to the government that follows ratification. The undelegated powers are reserved to the states "or to the people," as the Tenth Amendment says, never having been granted to either level of government.
Thus, given the enumeration of powers—"few and defined" (Madison, Federalist 45)—the vision that emerges, unlike Bork's, is one of "wide areas" in which individuals are free simply because they're born free; whereas in "some areas" majorities are entitled to rule because they're so authorized. There, indeed, is the Constitution's theory of legitimacy: power is legitimate only if constitutionally authorized.
The doctrine of enumerated powers is thus key to understanding the Constitution: absent a power, by implication there is a right. And the Ninth Amendment complements the Tenth by instructing us not to "deny or disparage" unenumerated rights "retained by the people." The people cannot "retain" what they do not first have to be retained.
Unfortunately, Bork, a textualist, dismisses the Ninth Amendment—his famous "inkblot" remark. And he treats the Tenth Amendment as mainly about federalism: if federal powers are limited, states may experiment, and individuals may move. True, the freedom to migrate may flow indirectly from enumeration; but the main liberty the Tenth Amendment entails is that afforded directly by enumeration. Bork does not discuss that, however, saying simply that it was not New Deal justices who killed the limits imposed by the enumeration of powers but the people's thirst for big government; sooner or later they will get justices who will allow that, he writes. Then it is justices after all.
Having thus disparaged the Constitution's bedrock principle, the doctrine of enumerated powers, Bork turns to his main concern, what courts have done with the Bill of Rights. Disparaging that too, he notes that the Bill played almost no role in our courts until the last third of the 19th century; but he fails to mention why: it was because the limits imposed by enumeration were largely respected—by the political branches—and the Bill of Rights did not limit states, where most power resided, until 1868, when the Fourteenth Amendment was ratified.
We come thus to a major divide between conservatives and libertarians—between those at one end who believe the Fourteenth Amendment wrought few changes in our federalism; and those at the other end who believe it incorporated against the states, ab initio, not only most of the Bill of Rights but our common law and natural rights as well. The infamous Slaughterhouse Court of 1873 reflected that divide; it continues today, in many variations.
Bork leans clearly toward the former camp. His textualism notwithstanding, with the Slaughterhouse majority he has dismissed the Fourteenth Amendment's Privileges or Immunities Clause, meant to be the principal font of rights under the amendment, as unknowable. He believes many Lochner-era decisions reflected not the Constitution but merely the values of contemporaneous elites. He disparages the judicial incorporation that began in the mid-20th century—although his view of Griswold, unlike Lawrence, is unclear. In sum, he sees modern courts reflecting the "moral relativism" of our elites as they invent rights nowhere in the Constitution.
Too often, regrettably, today's courts do that: witness Roe v. Wade. But it is no answer to leave most things to the political branches. Nor does the Constitution force a choice between judicial and majoritarian tyranny. Rather, it leaves most things to private determination. If enumeration is the foundation of constitutional legitimacy, if the Ninth Amendment means what it says, and if the Fourteenth Amendment was intended to complete the Constitution by incorporating at last the principles of the Declaration, as the 39th Congress argued, then courts must mine those principles and carefully distinguish the political, the legal, and the private.
Griswold and Lawrence may reflect "moral relativism" regarding values, but not rights. Neither decision trampled anyone's rights, or forced anyone to use contraceptives or practice sodomy; and life continued quite normally in both Connecticut and Texas. The Court said simply that those are matters for individual, not collective, liberty.
In a diverse society, however, collective liberty—voting—over disputed values too often violates rights. It was the preferred liberty of the Progressives, who eventually gave us Leviathan. The triumph of that collectivist mindset is what the Constitution—and the courts—were meant to prevent.