This book is a call to battle -- against the enemy within. The rhetoric is martial. We are in the midst of "a long-running war for control of our legal culture, which, in turn, [is] part of a larger war for control of our general culture." The call is also religious -- the struggle is against "heresy" on behalf of an embattled "orthodoxy." The enemy? Subjectivists who turn their backs on history; relativists who seek to impose their moral prejudices on the American people by reading them into the Constitution. These heretics have entrenched themselves in America's law schools, where they seek to bedazzle and intimidate the judiciary by their fancy theories and false erudition -- and thereby lead the next generation of lawyers astray.
But it may not be too late. So let us take our stand. Against subjectivism, and for the historical Constitution. Against relativism, and for the neutral discovery of constitutional principle.
Lest there be any doubt, I am ready to enlist. Law isn't just politics. It isn't morals either. It's distinctive -- and precisely in some of the ways Bork emphasizes. Judges begin by looking backwards -- to the decisions of authorized lawmakers. They take interpretation seriously. Their job is to make sense of the legally relevant sources, recognizing that the messages they receive may prove inconsistent with their personal or political morality. One mark of a great judge is the way she confronts this tension: When she finds that the law does not conform to her own vision, does she recognize that politics is one thing, law quite another? Or does she seek to dissolve the tension by treating the law as if it were a malleable vessel for her political and moral ideals? Bork is right to suggest that much trendy "theory" runs rough-shod over these distinctions.
And yet, judging from Bork's performance, the time isn't ripe for a Great Crusade. Bork has succumbed to his own temptation. Proclaiming his fidelity to history, his constitutional vision is radically ahistorical. Pronouncing an anathema on value relativism, his jurisprudence brings skepticism to new heights. Insisting on the sharpest possible line between law and politics, his bitter concluding section transforms a legal treatise into a red-baiting political tract. Tempting reveals that Bork's ordeal has transformed him into a human type that I, at least, had previously encountered only in Dostoyevsky novels. He is America's Grand Inquisitor -- grimly excommunicating heretics in the name of a Cause he has inwardly betrayed.
The Inquisition proceeds on three fronts. The first part of Tempting exposes the heretical opinions of the Supreme Court, tracing the judicial disease to its historical roots. The second part confronts and refutes the leading heretics of the modern academy The final part turns to Washington, D.C., and refights the confirmation battle. It would have been better for all concerned if the last part had not been published. It is remarkably shallow about the human side of Bork's struggle for confirmation, unless there be hidden meaning in his decision to republish verbatim copies of the letters he and President Reagan exchanged upon Bork's resignation from the Court of Appeals. Its brief-like refutation of the more extreme charges levelled by his critics serves only to save them from oblivion by republishing them in a book that has become a best seller. Last and worst, Bork turns this part into a political tract by lashing out at his opponents without restraint, going so far as to suggest that they are crypto-Marxists unwilling to come clean in public by acknowledging the nature of their true beliefs. How could Bork sink to this level, after condemning his opponents for the unprecedented "ferocity" of their judicial politics? The less said, the better, about this egregious lapse.
In the first two-thirds of the book, Bork does succeed in rising above the fray His first part makes it clear that heresy is no monopoly of the Warren Court. Bork traces it back to 1798 and convincingly establishes that there has never been a period in our history when judges did not succumb to the temptation he denounces. His second part is similarly broad-based in its critique of the modern academy. Not only liberals like Laurence Tribe but conservatives like Richard Epstein are denounced for their heretical views. Indeed, the historical depth and intellectual breadth of the "temptation" Bork seeks to extirpate might well daunt a less determined critic. If the judicial expression of heresy extends backward before Marbury v. Madison, and unites such disparate sorts as Tribe and Epstein, perhaps it is a mistake to think of it as a "heresy." Why isn't it better to view such an historically entrenched and politically diverse theme as part of the main line of American constitutional development?
But Bork is prepared to take on all comers: From John Marshall to William Rehnquist, the heretics are legion. Each victim must be called to the dock. Each can be condemned only after a representative sample of his or her error is considered. The overall impression is one of furious dispatch, as one hapless heretic or heresy is led from the dock, to be replaced by another destined to meet the same fate a few pages later. In these brief encounters, Bork has more or less interesting things to say -- though it must be tough for his best-seller readership to guess why he is wasting his time with such cartoon characters.
My aim, in any event, will not be to pass judgment on Bork's treatment of individual heretics and heresies. I will focus on an issue that is easily obscured in the swirl of particular inquisitions. This is Bork's view of orthodoxy, which is surprisingly underdeveloped. Bork is so interested in correcting error that he cannot find room for the systematic development of the truth. As we shall see, crucial steps in his affirmative argument are developed -- insofar as they are developed at all -- only as part of one or another counterpunch.
Bork's difficulties begin at the very first step in his argument. He says courts are to do no more, but no less, than carry out the will of the Framers -- as revealed by reading the constitutional text against the background provided by "debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like." The problem arises when one reflects on the formidable research project that Bork has assigned himself. As anyone acquainted with the Founding and Reconstruction will attest, Americans accompanied their efforts at constitution writing with an enormous outpouring of public debate. While it is not impossible to gain a sense of the action and the actors, it does demand a good deal of hard work, requiring years, not days, of disciplined reading and reflection. At this point we are in for a surprise. Despite his confident pronouncements about the intentions of the Framers, there is absolutely no evidence that Robert Bork has done any of the hard work that would entitle his judgments to respect.
For starters, this book fails to cite, much less discuss, the contribution of any seminal twentieth-century interpretation of the Founding or Reconstruction. Bork's ignorance of the secondary literature is even-handed: he fails to rely on historians who might support him just as he fails to confront those who make his confident judgments seem problematic. Perhaps this ignorance might be excusable for a heroic purist who immerses himself in the original sources without distorting his vision by consulting conventional authorities. But Robert Bork is no Hugo Black, communing with the Founders during long nights at the Library of Congress. His references to the original sources are rare. He gives no indication, for example, that he has pondered the differences between James Madison's arguments at the Virginia Ratifying Convention and James Wilson's at Pennsylvania's; or that he has thoughtfully considered the relationship of Charles Sumner's Senate speeches to Northern opinion during the ratification of the Fourteenth Amendment. Indeed, he manages to write a 400-page book in praise of the Framers without ever finding it necessary to cite the standard edition of Madison's Convention Notes or a single page from the Congressional Globe containing the debates of the Reconstruction Congresses.
The historical vacuum at the core of Bork's orthodoxy may seem surprising since the man spent much of his life as a professor at Yale and had the time to engage in the disciplined historical reflection that his orthodoxy demands. The mystery dissolves when one recalls that Bork's principal academic specialty was antitrust, not constitutional law. He did not win national leadership in his specialty by dint of historical research, but by championing the Chicago School of Economics' notably ahistorical and theory-laden approach to antitrust. Few readers of Bork's major book, The Antitrust Paradox, would guess that its author would next try to make a name for himself by championing the use of historical methods against the seductions of abstract theory. Indeed, one question left unresolved in Tempting is the extent to which Bork himself is aware of the tension between the ostentatiously theoretical methods of Paradox and the putatively historical concerns of Tempting.
In any event, this is not the aspect of his Yale experience that Bork brings to the center here. He emphasizes instead his friendship with Alexander Bickel and their collaboration on a joint seminar in advanced constitutional law during his time at Yale. As a student in this seminar in 1967, I too remember the collaborators' obvious respect and affection for one another. It was one of the things that made the seminar so special. Another thing was the polar positions taken by Bickel and Bork in the classroom. Against Bickel's prudentialist historicism, Bork countered with an aggressively ahistorical advocacy of Lochner v. New York, claiming in one memorable session that it was "indistinguishable" from (the recently decided) Griswold v. Connecticut and praising both decisions. In 1967 Bork was the paradigm of the heresy that he now seeks to eradicate. I remember my surprise on learning, a few years later, of Bork's conversion to a more Bickellian appreciation of history. But it is one thing to praise history; another to do it. By the time of his conversion, Bork's career was moving beyond New Haven to Washington, D.C. This book contains no evidence that he has found the time, in his last two eventful decades, to do the serious historical work his orthodoxy requires. Since leaving the bench, he has cast off the constraints of the judge without accepting the disciplines of the scholar.
Betraying the Framers
Bork's failure as an historian gets him into trouble as soon as he starts developing his affirmative creed. While he holds many historically questionable beliefs about the Founding Federalists and the Reconstruction Republicans, one stands out above all others. Bork believes that the Framers of the Bill of Rights and the Civil War Amendments had fixed and relatively concrete objectives in mind. These are to be understood by looking at each clause they left us as if it were a free-standing artifact. For example, in reading the First Amendment's prohibition of "an establishment of religion," we are to look at evidence of what concrete things the Framers meant to accomplish by enacting that clause. And so we are to proceed down the list of clauses, taking our time with the most important ones like due process and equal protection.
In Bork's view, the business of judicial review is straightforward: to measure the challenged statute against each of the historically defined clauses. If it violates any of the Framers' narrow objectives in enacting a particular clause, then it is unconstitutional. If, however, a judge cannot point to a particular clause, she must let the legislative judgment stand and resist the "temptation" to impose her subjective will on the body politic.
In taking this "clause-bound" view of constitutional interpretation, Bork is careful to avoid easy caricature as a latter-day partisan of mechanical jurisprudence. In particular, he recognizes that there is much room for reasoned judgment and good-faith disagreement in determining whether a modern statute falls within the proscribed zones of Framer intention. He draws his line between orthodoxy and heresy at the point where the judge moves beyond the original understanding of one or another particular clause.
So much for a summary statement of the Borkian orthodoxy. In assessing its distinctive character, consider how it diverges from the interpretive path most lawyers follow in dealing with all other complex texts. No good tax lawyer, for example, would ever think of reading the Internal Revenue Code one clause at a time in the manner Bork recommends. While the text of each particular clause is always important, a good lawyer cannot fix its meaning without construing it in the light of principles that make sense of the larger Code of which it is a part. Like readers of other complex works, thoughtful lawyers try to understand their texts as something more than an odd assortment of specific commands. They try to organize the rules in terms of principles that give the rules an intelligible order, working from particular clauses to more general principles until they reach reflective equilibrium.
It is this holistic exercise that Bork would have us reject in construing the Constitution -- at least when it comes to interpreting the nature of our fundamental rights. I add this caveat because Bork does not have a similar animus against holism when it comes to other aspects of the Constitution. For example, he has never had any trouble treating the "separation of powers" as a fundamental principle even though there is no separation of powers clause in our basic text. Though the principles defining the separation of powers can only be found amongst the "penumbras" and "emanations" of Articles One, Two, and Three, Bork seems untroubled by the need for holistic interpretation in this case.
He draws the line, however, when it comes to rights. Thus, Justice William Douglas' famous effort, in Griswold, to establish a constitutional principle of privacy by a holistic reading of the Bill of Rights is, for Bork, the very essence of judicial heresy. Similarly, holistic readings proposed by John Ely and myself are displayed amongst the academic heresies of our time. In repudiating such heresies, Bork makes it clear that he is not quibbling with one or another effort at holistic interpretation. He wants to reject the very idea of moving beyond "clause-bound" interpretivism in a holistic manner. In interpreting the nature of our constitutional freedoms, we should be emulating the worst kind of tax lawyer: one who zeroes in on "the applicable" subsection without reflecting on the sentences, paragraphs, and larger text within which it is imbedded.
Bad tax law makes even worse constitutional law. For obvious reasons, the tax code tries to be precise and detailed. Holism is required principally to avoid losing sight of the forest as one seeks to clear a path through the statutory underbrush. In contrast, both the Bill of Rights and the Civil War Amendments contain subsections which cannot be interpreted at all without reflecting on the fundamental principles expressed by the larger constitutional whole. In writing the Fourteenth Amendment, the Reconstruction Republicans demanded the constitutional protection of "privileges or immunities of citizens of the United States" without giving any further content to this formula. No matter how long one stares as this subsection, it will remain meaningless. How, then, to give meaning to this clause if we are forbidden, on pain of heresy, to engage in a holistic interpretation of the implications of the general themes established elsewhere in the text?
The Founders prove no more cooperative when recruited into Bork's crusade. In drafting the Ninth Amendment, they explicitly warned that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Given such textual instruction, Bork's orthodoxy threatens to dissolve in internal contradiction: The Framers explicitly repudiate the very orthodoxy that Bork would impose on us in the name of the Framers.
Bork finds the text of the Ninth Amendment to be "enigmatic." But the puzzle is why he should. It seems almost to be written with him in mind. Bork is doing precisely what the Framers feared: he is using the enumeration of certain rights to "disparage" the idea that there are other constitutional rights of fundamental importance. I especially admire the Framers' choice of the word "disparage." I can think of no better word to describe Bork's general tone. Nonetheless, Bork finds the text enigmatic and yearns for greater clarity. He argues that the Ninth Amendment was not a mandate to invent constitutional rights. "Surely, if a mandate to judges had been intended, matters could have been put more clearly," Bork says. "James Madison, who wrote the amendments, and who wrote with absolute clarity elsewhere ... could easily have drafted an amendment that said something like 'The courts shall determine what rights, in addition to those enumerated here, are retained by the people,' or 'The courts shall create new rights as required by the principles of the republican form of government,' or 'The American people, believing in a law of nature and a law of nature's God, delegate to their courts the task of determining what rights, other than those enumerated here, are retained by the people.' Madison wrote none of those things, and the convention ratified none of them."
It is, of course, an old lawyer's trick to create uncertainty by writing hypothetical texts that, in the writer's mind, do a better job than the Framers'. Bork, however, does not seem to recognize that what the Framers wrote is stronger, not weaker, than the texts he offers as replacements. His hypothetical clarifications would narrowly address the courts and explain to them that they should not "disparage" unenumerated rights. In contrast, the Ninth Amendment speaks to all interpreters of the Constitution, presidents no less than courts, citizens no less than legislators, and expressly cautions all of them against committing the interpretive blunder that Bork would impose in the name of the Framers.
The seriousness with which the Founding generation took the Ninth Amendment may be inferred from the fact that it is the only constitutional amendment aimed at proscribing an interpretive technique; all the other parts of the Bill of Rights are concerned with substantive or institutional matters. Of all the disputes in constitutional law, this seems a poor one to choose for purposes of drawing the line between orthodoxy and heresy. It is a curious orthodoxy that begins its devotion to the Framers by revising the meaning of the Ninth Amendment. It is as if Bork were deleting the word "not" so that the Amendment read: "the enumeration in the Constitution, of certain rights, shall be construed to deny or disparage others retained by the people."
Why does Bork take such pains to deny the alternative hypothesis: that the Founding Federalists and Reconstruction Republicans imposed not one but two kinds of limitation on constitutional government? First, they enumerated certain fundamental rights. Second, their text explicitly warns us that their list is partial and that we must build on it by elaborating the fundamental principles of individual liberty that the Founders and Reconstructers had only begun to codify.
It is possible, of course, that Bork has worn his erudition very lightly and that he has much more historical insight than appears in this work. If this be true, I urge him to write another book to correct false impressions. Tempting suggests that he has fallen victim to the very disease he seeks to diagnose. His ceaseless disparaging of unenumerated, but fundamental, rights has no deeper roots than his own personal philosophy. According to him, once a judge moves beyond the enumerated rights listed in the Constitution, "he is at once adrift on an uncertain sea of moral argument." More radically: "The truth is that the judge who looks outside the historic Constitution [of enumerated rights] always looks inside himself and nowhere else."
While this is a possible view there are many others, including the one espoused by Bork's favorite modern philosopher, Alasdair MacIntyre. Contrary to Bork's interpretation of his thinking, MacIntyre does not subscribe to Bork's view of moral argument as "an uncertain sea" that can be charted only by each judge "look[ing] inside himself and nowhere else." MacIntyre conceives the West as constituted by a set of rival traditions -- Classical, Christian, and that Johnny-come-lately springing out of the Enlightenment. Rather than looking inward, our task is to locate ourselves in one of these disparate traditions. In his writings, MacIntyre casts a scornful eye on the Enlightenment tradition he associates with Kant, Diderot, Hume, and the rest. He believes that the Enlightenment, and only the Enlightenment, generates the moral chaos that Bork describes. It is precisely for this reason that he urges us to reject the Enlightenment for one of the sounder Western traditions.
It is not surprising to see MacIntyre arguing this point -- unremitting hostility to the Liberal Enlightenment has been one of the few organizing themes in a philosophical career that has seen him embrace humanist Marxism in the 1960s before turning more recently to Catholicism as mankind's best hope against the moral chaos of modernity. Things stand differently for Robert Bork, self-proclaimed Defender of the Faith of the Founding Fathers. Surely Madison, Jefferson, Washington, and the rest would be surprised to learn that their Grand Inquisitor joins MacIntyre in denouncing the Enlightenment against those "heretics" in law schools who aren't convinced.
Bork's inner estrangement from the Enlightenment also lies at the heart of his assault on the Supreme Court. It prevents him from recognizing that American law is one of the principal historical achievements of the Enlightenment. It is in American courts, if anywhere, that one should expect people to take the Enlightenment's proud hopes for individual freedom as something more than empty and abstract rhetoric. It is in these courts, if anywhere, that one might find lawyers and judges who understand themselves as part of an ongoing tradition of constitutional argument aimed at realizing in practice the kind of individual liberty that Enlightenment thinkers only dreamt about. Indeed, it is precisely the constituting powers of tradition that might have provided Bork with an alternative to his radical view that a judge who moves beyond the enumerated rights must always look inside himself and nowhere else for inspiration. Perhaps the justices have not been looking inward, but outward. Rather than tapping the hidden recesses of their arbitrary subjectivities, perhaps they have been seeking to interpret the constitutional meaning of the American tradition of individual liberty -- as it was first expressed by the Enlightenment Founders and then transformed through the constitutional politics of later generations of Americans.
There is only one way to test this hypothesis. And that is to read judicial opinions from Marshall to Rehnquist in a spirit very different from the Grand Inquisitor's. Rather than hunting for heresy, our aim must be charity in interpretation. We must try to see how it might have seemed sensible to judges in different eras to view the principles of constitutional liberty expressed at the Founding and Reconstruction quite differently from the way we do today. The more deeply we can understand their efforts to make sense of the Constitution, the more deeply we will come to understand how we might best continue its traditions of freedom under today's conditions. Though the languages of constitutional liberty have shifted over time from property and contract to privacy and equal opportunity, we should be trying to glimpse the deeper continuities, as well as the obvious differences, in the judicial interpretation of the meaning of the Founding and Reconstruction. Only in the last resort should we follow Bork and condemn as heretical recurring themes that have emerged time after time over the centuries-long judicial effort to make sense of the tradition -- especially when that theme is individual freedom.
It is here, alas, where Bork approaches Dostoyevskyan dimension: Like the Grand Inquisitor, his quarrel is with the very idea that our tradition expresses a deep and abiding faith in human freedom. In contrast to the Dostoyevskyan original, however, Bork does not try to reveal the inner-most depths of his quarrel with human freedom, the ultimate sources of his grim determination to cut up our constitutional text into such small pieces that the Framers' larger commitment to individual liberty is rendered invisible.
Let me emphasize that I agree with Robert Bork on one big point. Reading and writing judicial opinions is not like reading and writing political philosophy. If philosophy is any good at all, it is individual, speculative, undogmatic. The Supreme Court, in contrast, speaks in the collective name of the People; it interprets the People's past achievements and does not try to speculate about the unknowable future; it announces dogmas which may lead some to the electric chair, others to freedom.
In assessing judicial performance, then, it is a mistake to evaluate Supreme Court opinions in terms of the philosophical conclusions reached by Kant or Mill or the lesser lights of the Enlightenment. Instead, we should be focusing our attention in the direction Bork points us -- to the constitutional thought and practice of people like Madison and Lincoln. It is Americans like these, not Kant or Mill, who gained the constitutional authority, after years of political struggle, to speak in the name of We the People of the United States. Though these successful spokesmen for the People were deeply influenced by European thought, their distinctive language of constitutional freedom can only be learned from them directly.
This is why Bork's failure to come to grips with the history of the Founding and Reconstruction is, in the end, a more serious failing than his philosophical estrangement from the Enlightenment's commitment to individual freedom -- though doubtless they go hand in hand.
If, however, Bork convinces us to abandon this Enlightenment project, I suppose his next step makes a certain despairing sense. If we cast our philosophical lot with Bork, we probably should join ranks in holy war against those benighted judges who continue to believe that the Enlightenment tradition of American freedom represents a system of "ordered liberty" capable of rational interpretation. So long as the Founding tradition floats on an "uncertain sea" of moralisms, the very most we can retrieve from the Framers is the odd assortment of willful commands they happened to have codified in one or another textual formula. As for the rest, it's all politics -- best left to our elected politicians.
Though Bork describes this approach as "Madisonian," it does not resemble anything Madison would find familiar. Madison did not believe that the Enlightenment was bankrupt. Madison did not believe that the Founding generation had handed down a set of ipse dixits floating on a sea of chaos. He believed that the Constitution made sense in terms of a set of rational principles of liberty that provided the framework for the interpretation of its particular provisions. Bork does not believe this, and tempts us to follow him.
A different version of this article appears in The Yale Law Journal, vol. 99, no. 6, published this spring. Portions are reprinted by permission of the Yale Law Journal Co. and Fred Rothman Co.