A Process of Denial:
3 Yale Journal of Law and the Humanities 263 (1991)]
[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
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.
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
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
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
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?
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
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
for `neutral 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
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
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
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
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
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.
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?
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
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.
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 as `the 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.
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
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
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
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
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
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.
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
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,
[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
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
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.
1. 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.]
3. 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.
4. 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.
5. "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.
7. 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).
9. 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.
28. 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!
32. 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.
34. 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).
41. 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.
47. 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.
54. 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).
59. 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.
60. 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].
66. 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).
68. 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."
69. "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.
70. 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).
72. 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).
73. 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.
74. 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' to `understanding.' 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-known `intentionalist,' 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).
76. 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.
81. 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.
82. 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).
83. 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.
87. 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.
88. 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).
89. 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.
90. "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).
92. 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.
95. 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).
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.
100. 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.