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What Robert Bork Learned from Judicial Activism, Right and Left

I have been thinking about Robert Bork recently, prompted in part by the 30th anniversary of his rejection by the Senate on November 23, 1987. Next month will mark the fifth anniversary of his passing on December 19, 2012. Bork was profoundly influential in conservative legal circles when I graduated from law school in 1980 and started paying closer attention to constitutional theory. I was impressed with both Bork’s scholarly writings and his more polemical articles in publications such as National Review. A 1982 essay he wrote in NR, entitled “The Struggle Over the Role of the Court,” reprinted in his 2008 anthology A Time to Speak, remains timely—even prescient. Ramesh Ponnuru has called Bork’s 1990 book, The Tempting of America, written in the wake of his confirmation defeat, “the most important popular statement of judicial conservatism yet produced.”

Certain libertarians who favor a more emphatic judicial approach now criticize Bork, once revered in center-right legal circles. For advocating judicial restraint, Bork has been labeled as a “moral eunuch,” “amoral,” “relativistic,” a “moral nihilist,” and a “majoritarian.” These criticisms ultimately parallel those of left-liberals: Bork’s advocacy of original intent and judicial restraint denies them the license to shape the Constitution according to a preferred ideological template, which, in this case, means libertarianism. Bork’s unforgivable sin was pointing out that republican self-government “means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.”[1]

These negative assessments of Bork are particularly ironic in light of the fact that Bork revolutionized antitrust law by infusing the topic with economic analysis, culminating with his 1978 treatise The Antitrust Paradox. Moreover, during the 1960s, while many of his colleagues at Yale Law School were striking fashionable leftist poses, the free-thinking Bork was exploring libertarian themes. Unlike many current legal scholars, while at Yale (1962-1975, 1977-1981), Bork wrote for both academic audiences and in lay publications such as the New Republic and Fortune, exhibiting a flair for controversy and becoming an early exemplar of what we now call a “public intellectual.”

Perhaps owing to his Chicago School education (undergrad and law school), Bork initially displayed a strong free market orientation in constitutional matters, such as a 1963 essay in The New Republic challenging the wisdom of proposed civil rights legislation on the grounds that it would restrict private individuals’ (and business owners’) freedom of association.  Bork described the proposed ban on discrimination by businesses as “a loss in a vital area of personal liberty.” Just imagine a Yale law professor expressing such views today! Tempora mutantur.

In a 1968 Fortune article, Bork expressed sympathy for the Supreme Court’s recognition of “fundamental” natural rights not listed in the Constitution, under the rubric of the Ninth Amendment, which he believed could be read to preserve individual rights not expressly set forth in the Constitution. The Ninth Amendment, Bork averred, “seems to mean that the Bill of Rights is an incomplete, open-ended document.” In fact, Bork described liberal Justice Arthur Goldberg’s concurring opinion in Griswold v. Connecticut (1965)—adopting this theory—as “persuasively argued.” Bork suggested that “the idea of deriving new rights,” even “individual freedoms far beyond the text of the Constitution,” was “valid and valuable.” In the interest of consistency, however, Bork proposed that the Griswold approach be extended to restore protection for long-forgotten economic freedoms, rejecting the Court’s post-New Deal distinction between “personal” and “economic” rights. In other words, decades before the “libertarian legal movement” was hatched, Bork was exploring all of its themes, including the demotion of economic liberties in United States v. Carolene Products (1938).

Bork’s embrace of “unenumerated” constitutional rights—individual liberties not expressly set forth in the text of the Constitution—in these nascent articles now seems odd because he later vehemently condemned the notion as anathema. As befits a searching intellect, Bork’s thinking continued to develop while teaching at Yale, leading him to change his mind.

During the mid-1960s, Bork co-taught a popular constitutional law seminar at Yale with Alexander Bickel, his closest friend on the faculty and the New Republic’s legal editor. Although Bickel, who died tragically of cancer at the age of 49 in 1974, is often described as a liberal, in contemporary parlance he would qualify as a centrist—or even a Burkean conservative—due to his criticism of the Warren Court’s activist excesses. Bickel’s classic 1962 book, The Least Dangerous Branch, introduced the term “counter-majoritarian difficulty” to describe the tension between judicial review and democratic theory. Ideological fault lines have steadily shifted over the past century, but Bickel’s unease with untrammeled judicial discretion lingers. As a result of long, animated debates between Bickel and Bork, by the end of the decade Bork had reconsidered his more free-wheeling judicial views and embraced a more restrained role for the judiciary.

Under Bickel’s influence, Bork eventually abandoned his support for unenumerated rights and embraced the constitutional theory that became known as “originalism”: The Constitution should be strictly interpreted, in accordance with its original meaning (usually determined by its express text), not as a conduit for a judge’s subjective sense of the values thought to be lurking between the lines. Bork would renounce the concept of natural rights in constitutional decision-making and disclaim Goldberg’s interpretation of the Ninth Amendment. In Bork’s memorable words (from the 1982 NR article referred to earlier): “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.”

In 1971, Bork delivered a lecture at the Indiana University law school, entitled “Neutral Principles and Some First Amendment Problems,” which was later published in the Indiana Law Journal.  Bork’s essay—ranked as the 10th most-cited law review article of all time—became the foundation for the constitutional philosophy he would espouse for the rest of his life. While ostensibly addressing the First Amendment, Bork digressed to unsparingly criticize Griswold for recognizing an unwritten right to “sexual privacy” for married couples wishing to use contraceptives banned by state law. While conceding that Griswold “has been acclaimed by legal scholars as a major advance in constitutional law,” Bork condemned its reasoning as unprincipled, unsupported in the text and history of the Constitution, and therefore illegitimate.

Bork insisted that the Court’s rulings must rest on express provisions of the Constitution, not ephemeral (and unavoidably subjective) notions of “fundamental rights,” which merely reflect the judges’ own values. Foreshadowing themes that would animate conservative legal theory for decades to come, Bork insisted that “Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution.”

Bork’s rejection of Griswold—which was the precursor of abortion rights in the Court’s 1973 decision in Roe v. Wade—represented a decisive break with Bork’s early flirtation with unenumerated rights. Bork’s constitutional epiphany was total: he repudiated all judge-made concoctions of rights—sometimes denominated “substantive due process”—including Griswold and all its antecedents, even the long-forgotten economic liberties he had yearned for in his 1968 Fortune article. Bork confessed that he was in “political agreement” with some of the Lochner line of cases, but concluded that—in the absence of an express constitutional right—“there is no justification for the Court’s methods.” In his 1971 Indiana Law Journal article, Bork candidly acknowledged his prior views, recanted them as “quite erroneous[],” and never looked back. “The judge must stick close to the text and the history [of the Constitution], and their fair implications, and not construct new rights,” Bork warned.

Then, as now, he was right.

[1] Robert Bork, The Tempting of America: The Political Seduction of the Law (Touchstone: 1990), p. 139.

Reader Discussion

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on November 30, 2017 at 11:03:15 am

Did Bork start off recognizing unenumerated rights, absolutely. I actually quite liked his old method of reasoning based on liberty. I wouldn’t call him (even later in life) a “moral eunuch,” “amoral,” “relativistic,” a “moral nihilist,” as I don’t think his judicial philosophy included morals (even if it was wrong as an originalist matter). I would call him a majoritarian (in that, like you quote, he believed strongly in allowing majorities to harm the rights of minorities simply because they are majorities), which in this case I do consider to be a negative (allowing majorities to rule when they do not harm the rights of the minority is great, but that line must be watched far more closely then Bork did).

I do not support the modern notion of “fundamental” rights which deserve scrutiny and “non-fundamental” rights that the court can ignore. There is nothing in the Constitution about such things, its created out of whole cloth by the Court and as such illegitimate. But the ninth amendment does express the view that the bill of rights is not a complete listing of our rights, that there are still other rights “other” rights than those enumerated that must be respected.

You make it sound like respecting the Ninth Amendment means rejecting originalism, which is just silly. In fact, rejecting the Ninth Amendment means rejecting originalism.

Any judge who doesn’t take into account the CONTEXT of when the words were written isn’t engaging in originalism at all. To examine the context, a good originalist judge must examine the English common law, and the legal philosophy of the era in which the constitution was written. These are things outside of the text of the constitution, but well within its original meaning. And it is here that Bork fails.

What of the right to not be sterilized by your own government (ie Buck v. Bell (1927)), or the right to raise your own children (Pierce v. Society of Sisters (1925)), the right to travel to another state (Saenz v. Roe (1999)), our country would be in a much worse place if these unenumerated natural rights were not protected. Our constitution rightfully protects against the tyranny of the majority who would violate the rights of the minority as John Adams explained in the “A Defense of the Constitutions of the Government of the United States of America” (1789).

A judge must look to the words of the Constitution and the context in which those words occurred. Bork refused to examine the context, instead closed his eyes and ears to history and looked only at the text. That is not originalism, it might be textualism, but it sure is not originalism.

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Devin Watkins
on November 30, 2017 at 11:53:25 am

MP: "Bork’s rejection of Griswold—which was the precursor of abortion rights in the Court’s 1973 decision in Roe v. Wade—represented a decisive break with Bork’s early flirtation with unenumerated rights."

And he was DEAD WRONG.

Some would argue that the right to gay-marry or abort a fetus is fundamental. Others respectfully disagree. But no one has ever articulated where a distinction is drawn in the Constitution between fundamental and non-fundamental rights, or how judges can reliably tell the difference.

James Madison would have found the distinction nonsensical. In introducing his draft of our Bill of Rights to the House of Representatives, he explained that he consciously avoided attempting to enumerate all the rights retained by the people, arguing that

….by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

1 Annals of Congress 456 (1789) (remarks of Rep. Madison).

The clause Rep. Madison refers to reads as follows:

"The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.” [Id. at 452.]

This is the Rosetta Stone for interpretation of our modern-day Ninth and Tenth Amendments. While the Ninth doesn’t create rights, it is a constitutionally mandated canon of construction, prohibiting judges from interpreting the Constitution in any manner that would "deny or disparage [unenumerated rights] retained by the people," U.S. Const, amend. IX, and the Tenth is an express reservation of powers to "the States respectively, or to the people." Id. amend. X. As such, government can only infringe upon those rights that were willingly relinquished by the people, and only when needed in order to discharge its legitimate duties as our authorized agents.

Bork's position has been rightly abjured by modern originalists, as he has reduced the Ninth to "an inkblot" (his words), and "It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it." [MvM]. There is no originalist theory which can get you to Bork's position.

You can have a majoritarian government. Or you can have our Constitution. But you can't have both. Sorry, Mark.

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Trevor Chase
on November 30, 2017 at 12:25:02 pm

Devin and Dawg:

Agreed on the 9th AND Footnote Four constructions (as it were).

I was going to ask Mark, if he believed that Bork changed his position on unenumerated rights because of the difficulty, actually impossibility, of delineating them as it is a position I find myself in.

I ask however: "What if anything is an efficacious limiting principle on rights?"
Devin asserts that Bork failed to consider "context" - Yep, true.
But do we not today also fail to consider context? Can it be said that SSM, and the consequent controversies arising from them, would even be considered under the contextual suppositions of the Framers? Could they support such a *right* or would they have understood this to be an area where the "majoritarian" morality would have precedence over some vague liberty interest and / or over something that was deemed morally questionable?

And yet, as I said, I do believe that the 9th is clearly intended to provide a constitutional support for INDIVIDUAL human choice / liberty. Yet, without some limiting principle, we are destined to find a right to bigamy, polygamy, incest, legalization of deadly narcotics / hallucinogens, etc.

While the pure "majoritarian" position is unsupportable, are there not some areas in which a majority MAY be permitted to encroach upon the liberty of, let us say, a prospective bigamist, child pornographer, etc etc?

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gabe
on November 30, 2017 at 12:42:51 pm

I think you have to focus on the fact that the Ninth Amendment was designed to protect NATURAL rights (not all rights), and that only rights which can be classified as natural (i.e. pre-existing government), can find protection in the Ninth Amendment. Also no one can have a natural right to harm another (that would violate the other person’s natural rights). So the right to get married in a church which agrees to host such a ceremony would be a natural right. But there is no natural right for such a ceremony to be considered a marriage by government. Government does have an interest in preventing fraud, and so if under the government’s definition of marriage a person can only be married once, then claiming to get legally married when you are already marriage (bigamy) would be fraud on the government. If you want to host a private (what you call) marriage ceremony and get married to multiple people, that should be a natural right, as long as you don’t claim such “marriages” fit within the government’s definition of being legally married.

Children are third parties which we as a society, rightly I think, do not recognize can fully consent to some activities (for their own protection). So a child pornographer, is causing harm to the child because the child cannot legally consent to those activities. Harm to another is never a natural right and majorities are free to prohibit such activities.

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Devin Watkins
on November 30, 2017 at 12:52:37 pm

Let me direct your attention to a comment made by Z9Z99 on the Masterpiece case:

http://www.libertylawsite.org/2017/11/29/its-momentousness-is-baked-in-the-cake/

It is the comment posted at 11:13 a.m. on Nov 30:

Here is the final sentence:

"All of which is to suggest that it is not a specific homosexual couple that is being protected, but rather it is the wedding ceremony as a symbol of a particular social narrative that is the subject of controversy. The question then becomes, is this an appropriate subject for the use of government coercion? (Z9Z99).

But read the whole comment as it is quite interesting.

Now, why do I link to this.

Because it strikes me that much of what we all bluster on about may once again resolve itself down to the same old question:

Is government's sphere of action / influence / coercion too large. As Z asks: should the government be supporting a "marriage" narrative? (or a host of other narrative).

Thinking back to Barnett and his exposition on the Necessary and Proper Clause, another rule of construction, it would seem as if we (or the Black Robes) should ask: Is it necessary AND proper for the government to be condoning / supporting / licensing marriages - straight, gay or otherwise? Absent governmental licensing of marriage, would a controversy exist such that the Black Robes should take judicial note of it? would there be any basis for a claim of discrimination if not for the government role in certifying marriages? would this not simply be a case of a man not wanting to "bake a cake" of a certain type. The cake itself has no bearing on the *marriage* - it will proceed or not proceed irrespective of the presence of a cake (and a quite beautiful one it was depicted in the essay - Yummy!). Consequently, there are no damages; there is no cause for action based upon discrimination (OK, maybe you can stretch it) absent government intervention / support / licensing of marriage AS NOTHING has been lost. Not much different than being told by a storekeeper that he doesn't carry my brand of beer - or even that he won;t carry it! (Just kidding).

so perhaps in answer to my earlier question: what is to be the limiting principle? - Answer: Keep the Federales out of as much as you possible can.

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gabe
on November 30, 2017 at 14:38:01 pm

"Yet, without some limiting principle, we are destined to find a right to bigamy, polygamy, incest, legalization of deadly narcotics / hallucinogens, etc."

I think Obergefell could be rationally limited to only legalizing homosexual incest and polygamy. Incest doesn't hurt anyone if no children are created, which isn't a problem in homosexuality. Polygamy is only a problem when there are different numbers of husbands or wives, which isn't a problem in homosexuality because there are either zero husbands or zero wives whether it's a marriage between two or three people anyway.

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Oberg
on November 30, 2017 at 15:48:34 pm

Yes, BUT what do we do about 'LGGBDTTTIQQAAPP" rights.
See recent news story out of Ontario where teachers are being required to provide tolerance training inclusive of all these newly discerned "suspect" categories.

Simple question: "How the heck do you know IF you are discriminating against someone WHEN you don't even know what they are?"

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gabe
on December 01, 2017 at 06:28:27 am

ln a secular society, "marriage" is a mundane contract between two people, with default terms drafted by the State. The right to contract existed before government, and may be seen as a natural right; the State can only invalidate such contracts for cause.

ln Hobby Lobby, that execrable oaf Scalia effectively overturned Reynolds. On that account, a pretty credible argument can be made for polygamy on religious liberty grounds.

The limiting principle -- in its most abstract form -- is that when an assertion of rights prevents government from doing its assigned tasks, rights must yield.

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Trevor Chase
on December 01, 2017 at 06:40:12 am

lf your state didn't regulate marriage, you could marry a child. Limiting principle: harm to others, or the State as a whole.

No discernible harm to society if Adam marries Steve.

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Trevor Chase
on December 05, 2019 at 00:02:37 am

[…] need to understand what the framers of the Constitution intended. In his book Coercing Virtue, Bork wrote that activist judges “decide cases in ways that have no plausible connection to the law they […]

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Image of Robert Bork Was the Judicial Activist He Warned Us About • Just Conservative Views
Robert Bork Was the Judicial Activist He Warned Us About • Just Conservative Views
on December 05, 2019 at 17:33:47 pm

[…] need to realize what the framers of the Constitution supposed. In his guide Coercing Virtue, Bork wrote that activist judges “decide cases in approaches that have no plausible relationship to the law […]

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Image of Robert Bork Was the Judicial Activist He Warned Us About – The Hill Chronicles
Robert Bork Was the Judicial Activist He Warned Us About – The Hill Chronicles

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.