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Thought-provoking, but rife with logical inconsistencies
on August 5, 2002
The book, by defeated US Supreme Court nominee Robert Bork, is very smart and well-written, but plagued with logical inconsistencies. The "tempting" that he condemns is the temptation to use result-driven pseudo-legal reasoning to interpret the Constitution to say what liberal judges want it to say. To the extent that Bork's claim is that sometimes judges choose between a number equally plausible choices based on the policy result they may wish for, his claim is well-supported, and his argument against the practice is well-reasoned.
But Bork reaches much too far. Often his compaint with the Supreme Court is that their way of interpreting the Constitution isn't exactly the same as his way. Thus, he thinks that the Court invented new law when it found a Constitutional right of privacy implicit in the 1st, 3rd, 4th, 5th, 9th, 10th, and 14th Amendments. But here, I'm doing Bork too much credit, for he fails to acknowledge the 9th and 10th Amendments, stating respectively that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," and "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," which are central to the argument. What do these two Amendments mean, if not that US citizens have other substantive rights, in addition to those enumerated in the Bill of Rights? And if those rights don't include a right to privacy, so implicit in the other rights of the people, then what specific rights does Bork think we do have? Now, I'm not saying that this argument ends the debate over abortion, but Bork's view, that the Supreme Court is jsut making things up that have no textual basis in the Constitution, is just overreaching. And so that leaves us with Bork saying one thing about what the Constiution means, and the Supreme Court of the United States saying a different thing about what the Constitution means. But the Constiution itself says that the Supreme Court has the authority to interpret the Constitution, not Bork. So, it really seems to me that Bork, and not the Supreme Court, is the judicial activist, making up new law, when he says that there is no right to privacy in the Constitution.
Bork's view is that when the Constitution is not perfectly clear about what it says and means, then the courts should defer to legislative majorities, which are the part of our government, unlike the courts, which is supposed to make policy decisions. So, it is ironic that Bork spends so much time at the end of the book expressing his disdain for the legislative process that defeated his nomination to the Supreme Court in the Senate. He complains bitterly of lawmakers' distortions of the facts, their unyielding loyalties to special interest constituencies, their backroom agreements to vote together in regional blocks, and--most ironically of all--of their lack of familiarity with and understanding of Constitutional law, sufficient to understand the issues involved in his nomination. It seems as though Bork's only occasional desire to defer to legislative majorities is, itself, result-driven.
This brings me to the fundamental dishonesty of the book. Bork insists that the Supreme Court's expansive reading of the Constitution is result-driven, and insists that his doctrine of original intent is result-neutral. I don't believe this to be true. The Constitution, it is often said, is "a floor and not a ceiling on individual rights". Thus, the more narrowly the Constitution is interpreted, the less freedom and rights for individuals, and the more power for states and for the other branches of the federal government to criminalize otherwise-protected conduct. And that's the conservative agenda-- to limit the right to privacy, to limit the right to free expression, to limit the right to speak out against the government, to expand the powers of the police, and to dictate victorian sexual practices. Thus, I submit that the original intent doctrine is every bit as result-driven as any liberal reading of the Constitution-- the desired result being to curtail individual freedom.
There are many other errors in the book, some more obvious than others (particularly ill-composed is his attack on First Amendment protection for flag burning: he says that the law restricted only the manner, and not the content of the expression, even though burning flags with different patterns than the US flag would have been permitted by the statute, and even though burning any representation of the flag, no matter it's size or material would have been outlawed; yet he goes into a vigorous defense of why the image of the flag is so sacred in our culture and deserves special consideration, based on the content of the message it conveys). But Bork makes many good points as well, and, as I say, his early arguments against result-driven decision making are very thought provoking.
I am an attorney, and found the book easy to follow, but I worry that it may have been a little too dense (and far too persuasive) for some non-attorneys.