Bork dabbled with—and rejected—“judicial activism” before founding modern originalism
I would guess that Napoleon, driving into Russia, had probably fallen behind in his correspondence. And I’m afraid that, in a slightly lesser exertion—moving apartments and dealing with deadlines pressing—I’ve been quite delayed in responding to John Grove’s piece, offering an earnest critique of the writers who made the case for “A Better Originalism.” The purpose of that essay was to make the case anew for the anchoring moral ground of this political order and our jurisprudence. To recover that understanding is to return us to the understanding of those premier minds so critical in the forming our jurisprudence: Alexander Hamilton, James Wilson, and John Marshall showed a remarkable gift for tracing their judgments back to what they called those “axioms” of reason underlying our moral judgments, along with everything else we can know. Mr. Grove regards that claim to know certain moral truths outside the Constitution as suspicious on its face and likely to trigger a flight into what he calls “metaphysics.” But he passes by then the understanding of these Founders that those moral truths, or axioms, persistently supplied the ground of the most practical judgments.
Mr. Grove wrote in a spirit of friendly engagement, but I think that he persistently misread our piece: The strands of the misreading can be traced to that central theme running through his reply: a certain dubiety about the people who claim to know moral truths, either because their confidence is unwarranted, or because (whisper) there really are no such truths out there. Or at least, no moral truths that can possibly command our respect if they haven’t been set down in the text of the Constitution.
The first counter to that argument would be found most aptly with James Wilson, when he argued, contra Blackstone, that a “principle of revolution” may indeed be contained in our new Constitution. For the law in America starts from the recognition that there could be an unjust law—a measure passed with all of the trappings of legality, but thoroughly wanting in the substance of justice. In other words, the American law begins with an understanding of a body of moral truths outside the positive law by which that positive law may be judged. Mr. Grove brings to his essay the curious assumption that anyone who would take seriously the moral truths anchoring the law, or the moral ends of the law—and with it, the moral limits of the law—must be advocating a notion of law quite detached from any sense of legal and moral restraints.
Confining the Courts
There is nothing that misses so completely the understanding of that essay on a “Better Originalism”—or the writings of the people who composed it. The writers joined in that statement, for example, have favored the Lincolnian understanding of the rightful powers of the political branches to narrow and counter decisions handed down by the Supreme Court. And so how could those writers have offered us, as he says, not a formula for the restraint of the government, but “a grasp for the levers of judicial power”? In recovering Lincoln’s understanding here, we are offering a regime even thicker in checks and balances, with a more serious confining of the courts.
Mr. Grove claims to have found in our essay a move to break from those wholesome restraints of the Constitution. But no: those institutional restraints are bound up with rigorous test of reasoning that is central to the moral understanding of the law. Those institutional checks put up an array of interests to challenge arguments and induce people to offer better reasons for the measures they would impose as law. It simply isn’t sufficient, in justifying any law, to say that “a majority feels strongly about X.” The object is to show that there is something truly rightful in this measure, something that could make that law “justified” to enforce. Mr. Grove seems to be assuming that any government taking seriously the moral grounds of the law will be driven to do more and more in search of a world stripped of all imperfection. But the truth is the reverse: We raise the bar rather than lowering it. We insist on a more demanding test of reason before any measure can be imposed as “law.”
That is the classic connection in Aristotle between the “logic of morals” and the “logic of law.” That connection pervades our law at every turn, and what Mr. Grove seems not to notice is that those moral principles, not laid out in the text, are nevertheless embedded in all of those valuable things he regarded as “procedures.” If we are to take Mr. Grove at his word, he sees them merely a formal procedures, quite detached from any moral purpose or end to which they are directed.
There is the danger then of falling into that facile assumption that Lincoln warned about: a willingness to think that this regime of law is all procedure and no substance; that virtually anything could be done through a democratic system—whether it was voting in slavery or genocide—as long as it was done with the vote of a majority in a formally correct way. At the same time, we seem to discount the possibility that those formal procedures have, contained in them, the moral principles that would call those debased ends into question. Lincoln said, in the crisis of his time, that the question is “whether the negro is not or is a man. … [I]f the negro is a man, is it not to that extent, a total destruction of self-government, to say that he too should not govern himself?” As Lincoln made clear, the wrong of slavery flows from the deep premises of a regime founded on the “consent of that governed.” From that principle alone comes the authority to put in place the form of government, and the legal procedures, that we have come now to know, for a long while, as ours.
The Moral Logic Outside the Constitution
To take seriously, then, the moral requirements of the law is to take seriously the moral limits to the reach of the government and the laws. And that is the point that Grove notably missed, I think, when he reacted with incredulity to our reading of Hamilton in Federalist 33, on the “Necessary and Proper Clause.” Hamilton’s striking argument was that there was no need to mention that Clause in the text of the Constitution, for it is simply implicit in the logic of a moral agent: Any being who can reason about right and wrong should claim only the powers he needs—the powers “necessary”—to the pursuit of legitimate (or “proper”) ends. The critical connection had been provided by Plato: A man with self-control is a man who has a constitutional ruler within himself. He is a stronger, rather than a weaker man, for his acts are governed by an awareness of those wrongful things he ought not do. He is freer to concentrate his powers on those things rightful to do. In the same way, a polity working under those moral and legal constraints is not a weaker but a stronger polity, for it can narrow its concerns to the things that are legitimate for the government to do. It is curious, to say the least, that our restating of that point from Hamilton could be read by Mr. Grove as a license to produce a governmental power unbounded.
Mr. Grove seems incredulous that Hamilton could have pulled off such an argument, pointing to a moral logic outside the text. That reading is embarrassed by the fact that Hamilton actually did it—and told us that he was doing it. Hamilton noted that this Necessary and Proper Clause, as well as the Supremacy Clause, had become “the source of much virulent invective and petulant declamation against the proposed Constitution.” And yet,
after all this clamor… it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated [my italics] as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers.
Mr. Grove counters that that is precisely the point: that those powers would be confined to the “specified powers” set down in the text. But he must surely know that Hamilton had no crabbed view of the ends of the national government. As Marshall said in McCulloch case: “Let the end be legitimate, let it be within the scope of the Constitution….” That was a formulation springing from Hamilton’s Memorandum to Washington on the National Bank, and Hamilton’s understanding could fit into that cast with no strain. As he put in Federalist 31, “there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation.”
In his reply, Mr. Grove insists that “the point of the Constitution was not to legally establish any conception of the public good; it was to channel and limit its pursuit.” But that line draws us back to the opening sentences of the Aristotle’s Politics, where he made the simple point that still comes as news even to people with pricey degrees: Any act we take, even the most ordinary, prosaic act, must be underlain by some rough understanding of the things that are good or bad, advantageous or disadvantageous, right or wrong. During the period of the Founding, it was common to hear it said that the misuses of freedom marked “licentious” acts. In other words, it was understood as a matter of common sense that virtually any act we can take—in our own day, driving a car or using a pen—could be directed to wrongful ends. Mr. Grove makes his way back to that ancient recognition when he concedes that “no one is committed to process for process’s own sake, but in order to accomplish some human good.” He gives us then a paradox: the procedures that spring from the Constitution must imply a good to which they are directed, but the Constitution itself does not. The purpose of the Constitution, as he said, was to “channel and limit” the pursuit a “public good”—while being utterly indifferent, apparently as to whether that good, in any case, was decent or corrupt.
The Sources of Law
Mr. Grove offers us an account of the Constitution defined solely as a structure of “legal limits and checks,” but as he says, “the moral underpinnings of the use of power are not to be found.” And yet, if that is true—if there are no moral grounds that make certain forms of government better or worse—what would be the difference between the positive law of the United States and the positive law of Stalin’s Russia? Does it make a difference that one flows solely from the will and needs of a tyrant, and that the other flows from that principle that no man is by nature the ruler of other men, that any legitimate governance over human beings must draw its just powers from “the consent of the governed”?
But of course, as Justice Scalia—and Mr. Grove—would remind us, that principle was articulated in the Declaration of Independence, and the Declaration was never enacted into the positive law of the Constitution. The Justice curiously forgot, though, why it could not be enacted. The answer was contained in that chain of three questions offered by John Locke:
- What is the source of the law? Answer: the legislature, which enacts the law.
- Then what is the source of the legislature? Answer: the Constitution, which tells us whether we have a legislature, with how many chambers and what kinds of powers.
- But then what is the source of the constitution? And there, as Locke said, we must go back to some principles “antecedent to all positive laws”—in our own case, the right of a people to determine the terms of its own governance.
In his First Inaugural Address, Lincoln offered a virtuoso performance when he explained why the only operational form of a democracy required the vote of the majority, but a majority working under moral and constitutional restraints–a majority that understands that it is not free to decide everything and anything. Lincoln took for granted that the principle of government “by the consent of the governed” was well in place, then, before the framers began to construct the legal structures that sprang from that principle. Scalia took the rule of the majority as his governing principle, but he detached that rule of the majority from that underlying principle of the Declaration, the principle that enjoined this form of government. But when detached from that underlying principle, the rule of the majority could mean only what Justice Holmes thought it meant: that the majority claims the right to rule for the simple reason that it has the power to overbear the minority. In other words, the Rule of the Strong, or Might Makes Right.
As the Founders understood, those anchoring moral truths they drew upon were there before the Constitution, and those truths would inform all of the procedures that would spring from the very logic of this regime of law. If we tried to sum up, then, the differences between Mr. Grove and the writers of “A Better Originalism,” they are marked in this way: We see the Constitution springing from moral principles that were there before the Constitution—as Locke would say, “antecedent” to the positive law. As James Wilson said, we didn’t bring forth this Constitution in order to invent new rights “by a human establishment,” but to secure and enlarge those rights we already had by nature. And here he was reflecting, of course, the Declaration: That governments are instituted among Men” precisely for the purpose of securing these rights that flow to them by nature, and governments lose their claim to rule when they become “destructive of these ends.”
Mr. Grove offers us an idea of the Constitution in which those moral grounds and moral ends have both been screened out—and screened in the blissful hope that we may avoid those vexing moral questions that lift many judges into a heady domain, where their pretensions are high and their judgments distracted.
What Commands Our Judgment
Mr. Grove, as I say, is suspicious, and not without warrant, about people who claim to know moral truths. But to say that people flown with high confidence offer specious things as moral truths is not to say that there are no moral truths there to be known. And if there are such truths, their standing as moral truths cannot depend on whether they are mentioned in the text of the Constitution. Think, for example, of the proposition that James Wilson, Thomas Reid, and yes Immanuel Kant, could regard as the first principle of moral and legal judgment: that it makes sense to cast judgments of blame or praise only in the domain of “freedom,” where people have the active powers to cause their own acts to happen. And so we say, “No one should be held blameworthy for acts he was powerless to affect.” Thomas Reid said that “no axiom of Euclid appears more evident than this.” It is, then, a necessary truth; it will be true under all conditions, in all times and places. It happens to thread through many parts of our law, even though it has not been set down in our Constitution (any more than “presumed innocent until proven guilty).” Would Mr. Grove really be surprised if a judge one day invoked this principle in one of his opinions as he tries to draw out the meaning of Due Process of Law? And would Grove accuse him then of importing in the Constitutions things that are not in the text?
But if all of this is true, then one of Mr. Grove’s chief, defining concerns would seem to dissolve. For it would be quite untenable then to argue that, when judges depart from the text of the Constitution, they are plunging into a sea of arrant subjectivism. That makes sense only to one who, in his heart of hearts, really doesn’t think that there are moral truths outside the text of the Constitution.
The indelicate point that runs through Mr. Grove’s essay, and informs each of his parts, is that he really does hold with my late, dear friend, Robert Bork that when a judge leaves the text of the Constitution he is merely looking inside himself. That is, there are no objective truths to command his judgment. I had the sense that my friend, in his later life, was moving away from that position—in part, in response to the badgering of his friends. But Grove cites, without reserve, Bork’s remark that when the judges appeal to moral truths outside the text, they are appealing merely to “their strongly held beliefs.” Beliefs, not truths; beliefs merely “strongly held.” With that inversion of the very meaning of moral judgment, all of Mr. Grove’s complaints would fall into place. But without that inversion, I’m afraid, not one of his criticisms can take hold.
Mr. Grove’s response to “A Better Originalism” was offered in a friendly, though earnest and sharp way, and I reply here with sharpness only for the sake of trying to deal clearly and decisively with his critique. But consolation may come from my late hero, the first Mayor Daley of Chicago, who fumed once with outrage: “I have been vilified, I have been crucified, I have been …. criticized!” I am not above that criticism, and to take a line from Evelyn Waugh, my diaries will be much in need of editing.