Bork dabbled with—and rejected—“judicial activism” before founding modern originalism
The central question of constitutional law is the role of the Supreme Court in our system of government. Yale law professor Akhil Reed Amar’s America’s Unwritten Constitution: The Precedents and Principles We Live By argues for a role even more expansive, if possible, than at present.
Constitutional law is the product of judicial review, the power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution. Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, it is not explicably provided for in the Constitution. It was established and defended by Chief Justice John Marshall in the famous case of Marbury v. Madison, however, on the ground that it is inherent in a written constitution. This was not correct in that other nations had and have written constitutions without judicial review. Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges. America’s Unwritten Constitution rejects that limitation.
Throughout our constitutional history, beginning with Marbury itself, the gap between judicial review in theory and judicial review in practice has been very wide. In theory, it authorizes judges to enforce the Constitution; as a practical matter, it gives them the power, which they regularly exercise, to invalidate any policy choice made in the ordinary political process with which they strongly disagree. The result is to make the Court arguably the most important institution of American government in terms of domestic public policy. At least since the middle of the last century, the resulting constitutional law has been characterized by two features. First, the Supreme Court’s rulings of unconstitutionality – invalidations of policy choices — have had very little to do with the Constitution. No one doubts, presumably, that the states did not lose the right to restrict the availability of an abortion in 1973 in Roe v. Wade, for example, because the Court discovered in the Due Process Clause of the Fourteenth Amendment — the purported basis of the decision — something that no one had noticed before.
Second, the Court’s rulings of unconstitutionality have not been random in their political impact. On the contrary, they have almost uniformly served – on abortion, prayer in the schools, government aid to religious schools, public display of religious symbols, pornography, capital punishment, criminal procedure, busing for school racial balance, illegitimacy, alienage, vagrancy control, flag burning, and so on –to reject a policy choice made in the ordinary political process in order to substitute a choice more to the left on the American political spectrum. The Court has served, in effect, as the enacting arm of the American Civil Liberties Union.
It happens that the great majority of constitutional law professors, especially in elite institutions—not noted for enthusiasm about democracy—share the Court’s liberal policy views and approve of these decisions. They therefore came to see leaving the last word on policy choices to the Court as an improvement on democracy, and took it as their professional responsibility to defend and justify this role for the Court to the American people. It is not politically feasible, however, openly to argue that policy making by the Supreme Court—by majority vote of nine unelected, life-tenured lawyers deciding for the nation as a whole from Washington D.C. —is an improvement on the constitutional scheme of representative self-government in a federalist system. Plato favored government by philosopher-kings, but we appoint to the Court only lawyers, not philosophers.
It has also become increasingly impossible to argue that the Court’s constitutional decisions are the result of constitutional interpretation in any ordinary or meaningful sense. For one thing, most rulings of unconstitutionality involve state, not federal, law, and nearly all of them purport to turn on either or both of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. For another thing, the highly predictable conservative-liberal split of the justices on most controversial issues provides clear evidence of the ideological basis of their decisions. The result has been the creation of a cottage industry in the production of theories of constitutional interpretation meant to show that the Court’s rulings of unconstitutionality are based, even if not exactly on the Constitution, on something other than simply the justices’ personal political preferences.
All the theories begin by rejecting “originalism,” the simple view that the Constitution means what it says, taking its meaning, like any writing, from the intent of its authors, and in the case of the Constitution, from the intent or understanding of its ratifiers who made it authoritative. This would seem to be less a theory of interpretation than a statement of the meaning of interpretation, simply recognizing that there is a difference between writing, an attempt to send a message with words, and reading, an attempt to receive the message. If a writing does not mean what it was intended to mean, it has no fixed meaning and cannot serve as a rule of law, and as Bishop Hoadley famously pointed out in his sermon to the king in 1717, the “interpreter” becomes “the true lawgiver.”
Opponents of originalism raise two basic objections. First, that we may not know the intent or understanding of the Framers (authors and ratifiers) of the Constitution on a particular issue, or more likely, they may have never considered it. The answer, however, should be that if we do not know that the Constitution was meant to preclude a particular policy choice, the conclusion should be that it is not precluded, not that it may be held “unconstitutional” on some non-constitutional ground. The second objection is that to be bound by a policy choice made by the Framers, if known, is to be governed by, as Jefferson pointed out, “the dead hand of the past.” This, however, is not an objection to originalism but to constitutionalism. It is a good reason to disfavor constitutional restrictions, not a reason to create new ones.
The theorists’ real objection to originalism is not that we do not know or should not be bound by the Constitution’s original meaning, but that so confining the Court would leave it with too limited a policymaking role. The Framers very wisely precluded very few policy choices and even fewer that American legislators, at least as committed to traditional American values as judges, are likely to be tempted to make. If judicial review were in fact what it is in theory—the invalidation of policy choices clearly prohibited by the Constitution—rulings of unconstitutionality would be so infrequent as to make the power little more than a matter of academic interest. The result would be the nightmare of the constitutional theorist, public policymaking in the hands of American people, unsupervised and uncorrected by the Supreme Court justices.
Professor Amar’s book offers nothing less, he immodestly but accurately proclaims, than “a new vision of the nature of constitutional interpretation.” (xvi) Illustrating the creativity displayed throughout the book, he has come up with a new, and in his view dispositive, refutation of originalism. The handwritten copy of the Constitution in the National Archives in Washington, D.C., it appears, is not identical (mostly because of differences in capitalization and punctuation) with the printed copies that were circulated to and ratified by the states The result, Amar says, is that the “hardcore textualist” (63) cannot claim to rely only on the original Constitution because “Unless we look beyond the text, we cannot even determine which ink marks are, in fact, the original written Constitution” (64).
Fortunately, Amar concedes, the printed copy “bears a close resemblance” (64) to the written original. In fact, the only possibly significant difference between the two seems to be that the original appended thirty-nine signatures preceded by the words “done … the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven ….” (70) The signatures and preceding statement were omitted from the printed copies, which has given rise to some dispute as to whether “the Constitution” recognized Jesus Christ as “our Lord.” Happily, the omission does not seem to give rise to any other interpretive issue. As a practical matter, the printed version—a copy of which is appended to Amar’s book—may be confidently understood as the reference for “the Constitution.”
Professor Amar’s alternative to originalism as a method of constitutional interpretation parallels to some extent the widely-noted alternative offered by the late Professor John Hart Ely in 1980 in Democracy and Distrust: A Theory of Judicial Review. Both necessarily begin by rejecting what Ely calls “clause-bound interpretivism” and Amar calls “clause-bound literalism.” Originalism must be rejected according to Ely because it is “incapable of keeping faith with the evident spirit” of some constitutional provisions, and according to Amar because its eight thousand words “only begin to map out the basic ground rules that actually govern our land.” (ix) For example, neither a prohibition of racial segregation nor a requirement of “one person, one vote” “explicitly appear[s] in the terse text.” (ix) The Constitution, that is, cannot be read literally—to mean what it says, and only what it says—because it does not say enough, precluding few policy choices and leaving the Court with very little to work with.
The history of judicial review in the United State, the place of its birth, can be taken as demonstrating that giving electorally unaccountable judges the power to disallow policy choices prohibited by the Constitution will inevitably become the power to disallow policy choices with which they disagree. Judicial review did not get off to a good start in Marbury v. Madison, where the Court found that a dubiously interpreted statute violated a dubiously interpreted constitutional provision. In several cases thereafter, the Court openly ignored the Constitution and invalidated laws on the basis of “natural law.” At the end of the nineteenth century, the Court achieved the same result by replacing natural law with the doctrine of “substantive due process.” The Due Process Clauses of the Fifth and Fourteenth Amendments provide that no person shall be deprived of “life, liberty, or property without due process of the law.” In a series of cases, the Court converted the clauses from guarantees of procedural regularity into requirements that all deprivations of “liberty” (i.e., all laws,) be “reasonable.” The Court thus gave itself the power it now exercises to remove any policy issue it choose from the ordinary political process and assign it to itself for final decision.
There would seem, therefore, hardly to be any need of new theories of constitutional interpretation to enhance the Court’s policymaking power. Professors Amar and Ely object, however, to the Court’s obtaining that power by its invention of substantive due process. They also agree in arguing that the Court should rely instead on the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment. The Ninth Amendment provides that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Fourteenth Amendment provides that “No state…shall abridge the privileges and immunities of citizens of the United States.” Amar and Ely argue that these provisions should be understood as granting the people “unenumerated” constitutional rights which the Court is authorized to discover and enforce. It does not appear, however, and persuasive scholarship disputes, that these are the best interpretations of the provisions. At a minimum, they are not clearly required interpretations and therefore, in the interest of maintaining a democratic and federalist system of government, should be rejected.
Professors Amar and Ely part company, however, in terms of the purpose and effect of their theories. Ely put his theory forward as a way to limit judicial discretion and policymaking by proposing that the Court confine itself to “procedural” rather than “substantive” matters. Judicial review, he claimed, could then be made not only consistent with but an improvement on democracy by, for example, invalidating legislative restrictions on speech and protecting “underrepresented” minorities. It is highly doubtful that Ely’s theory is successful in this regard, but Amar’s theory points in the opposite direction, authorizing even more expansive, if possible, judicial policymaking.
Professor Amar would have the Court enforce not only the written Constitution but, much more important, what it can find by — the title of the book’s first chapter — “Reading Between the Lines”. What can be found between the lines depends, however, entirely on who is looking. In addition, Amar would have the Court enforce not merely one, but apparently at least nine supposedly unwritten Constitutions: America’s Lived, “Warrented” (as in Earl Warren), Doctrinal, Symbolic, Feminist, “Georgian” (as in Washington), Institutional, Partisan, and Conscientious [sic] Constitutions. These “Constitutions” authorize the Court, Amar tells us, to declare laws “unconstitutional” on the basis of the Declaration of Independence, the Gettysburg Address, the speeches of Dr. Martin Luther King, Jr., and almost anything else the justices choose to rely on. It is not clear, however, how this complex imaginative scheme serves the presumed purpose of the book of making the Court’s rulings of unconstitutionality appear to be something other than a statement of the policy preferences of a majority of the justices.