“Nonsense is nonsense however heavily weighted with academic robes.’’ (163)
No wonder Bork unpopular!
“This results-first, premises-to-follow form of legal “reasoning” is to law what Robert Frost called free verse, ‘tennis with the net down.’ There are no rules, only passions.’’ (263)
This an excellent metaphor! ‘Tennis without rules’.
“The function of the Justices … is to immerse themselves in the tradition of our society and of kindred societies that have gone before, in history and in the sediment of history which is law, and … in the thought and the vision of the philosophers and the poets. The Justices will then be fit to extract “fundamental presuppositions” from their deepest selves, but in fact from the evolving morality of our tradition.’’ A. M. Bickel. (189)
Bork presents this as the best argument of his adversaries. Bork explains why opposed. . .
“The interpretation of the Constitution according to the original understanding, then, is the only method that can preserve the Constitution, the separation of powers, and the liberties of the people. Only that approach can lead to what Felix Frankfurter called the - “fulfillment of one of the greatest duties of a judge, the duty not to enlarge his authority. That the Court is not the maker of policy but is concerned solely with questions of ultimate power, is a tenet to which all Justices have subscribed.’’
‘Court should not make laws’ is the faith proclaimed. However . . .
“But the extent to which they have translated faith into works probably marks the deepest cleavage among the men who have sat on the Supreme Bench.’’ (158)
Well . . .making law is so. . .so. . .much more fun!
Another fundamental opinion . . .
“There are, however, persons who make more radical objections to the idea of seeking the historic meaning of the Constitution. They contend not that we cannot know in detail the Founders’ intentions, but that we cannot even understand the principles they intended, because they lived in an entirely different society.’’ (163)
This verbal, textual nihilism ‘we can’t understand anything or anyone - ever - is destructive. Bork explains . . .
“The claim is preposterous. Compare it with the treatment we give other writings not of our generation. In a commencement address at Duke University, Ted Koppel spoke to the issue, albeit in a different context:
“What Moses brought down from Mt. Sinai were not the Ten Suggestions. They are commandments. Are, not were. The sheer brilliance of the Ten Commandments is that they codify in a handful of words acceptable human behavior, not just for then or now, but for all time. Language evolves. Power shifts from one nation to another. Messages are transmitted with the speed of light. Man erases one frontier after another. And yet we and our behavior and the commandments governing that behavior remain the same.”
Who doubts the Ten Commandments reflect human life? Many oppose, even fight them, but people have applied them for thousands of years. (I have read, analyzed, taught them to my grandson from childhood. Understands fine.)
“The Commandments were written in another language, given to a people of an entirely different culture, and are almost four thousand years old, and yet the claim is that we can understand them. The constitutional originalist asks only for two hundred years concerning a document written in English and coming out of our culture, however much material conditions may have changed.’’ (163)
Yep.
“Nor is the argument assisted greatly by the analogy to antitrust. It has been suggested from time to time that antitrust courts should intervene when the economic market is, in Ely’s words, “systematically malfunctioning” or, in other words, displays “market failure.” The difficulty is that, except in cases where avoidable monopoly replaces competition, the concept of market failure usually means no more than that the market is producing results the critic disapproves of on grounds that ultimately turn out to be moral or aesthetic.’’ (196)
Really?
“The market failure concept has not proved to be very useful in antitrust. When an economist found an industry structure he did not like, he immediately pronounced market failure. General Motors once had about half of the American automobile market, and the literature was rife with market failure analyses by people unwilling to entertain the notion that GM had that share because more customers wanted its cars than other makes. Then the Japanese arrived, and the market’s failure disappeared. It had never been anywhere but in the eye of the beholder to begin with.’’ (196)
‘Antitrust in eye of beholder’.
Bork devotes many chapters to prominent professors . . .
“Harvard is apparently a hotbed of revisionist law professors. In addition to Laurence Tribe, Professor Frank Michelman has long been working on a theory that would make welfare payments a constitutional right that would-be recipients could enforce in court. Professor Richard Parker finds our present democracy in a state of “corruption,” which asserted condition he regards as warrant enough for courts to use the Constitution to remake society. He promises a new constitutional theory that will - “take seriously and work from (while, no doubt, revising) the classical conception of a republic, including its elements of relative equality, mobilization of the citizenry, and civic virtue.”
Why does this sound . . .sound familiar? Well . . .
“This sounds a bit like a Court-managed version of the French Revolution.’’ (206)
That’s it!
Also . . .
“Harvard law school is also a stronghold of Critical Legal Studies, a nihilistic neo-Marxist movement that views all law as oppressive and political. It is nihilistic because its members typically demand the destruction of current doctrine and hierarchies as illegitimate, but they acknowledge that they have no notion of what is to replace this society. To give the reader some flavor of the mood of these folk, I once attended a lecture by one of its leading Harvard proponents, which he concluded by saying:
“The first year of law school is designed to destroy the minds of the students. It does that by asking them to reconcile the irreconcilable and to justify an obviously unjust society.”
“Sanford Levinson, of the University of Texas law school, advances an extremely skeptical, indeed nihilistic, theory of “constitutional” interpretation. Levinson says that “The ‘death of constitutionalism’ may be the central event of our time, just as the ‘death of God’ was that of the past century.”
Maybe the ‘death of god’ lead to ‘death of law’.
“In a major law review article, Levinson explains that “for a Nietzschean reader of constitutions, there is no point in searching for a code that will produce ‘truthful’ or ‘correct’ interpretations; instead, the interpreter, in [philosopher Richard] Rorty’s words, ‘simply beats the text into a shape which will serve his own purpose.’” (216)
‘No code, no truth’. Wow! These are lawyers?
I THE SUPREME COURT AND THE TEMPTATIONS OF POLITICS
1 Creation and Fall
The First Principles of the Social Compact
The Divided John Marshall
Chief Justice Taney and Dred Scott: The Court Invites a Civil War
The Spirit of the Constitution and the Establishment of Justice
Judicial Activism in the Service of Property and Free Enterprise
2. The New Deal Court and the Constitutional Revolution
Roosevelt Fails, Then Succeeds, in Remaking the Court
The Court Stops Protecting Federalism
Economic Due Process Abandoned
The Discovery of “Discrete and Insular Minorities”
3. The Warren Court: The Political Role Embraced
Arrested Legal Realism
Brown v. Board of Education: Equality, Segregation, and the Original Understanding
Poll Taxes and the New Equal Protection
Congress’s Power to Change the Constitution by Statute
The Right of Privacy: The Construction of a Constitutional Time Bomb
4. After Warren: The Burger and Rehnquist Courts
The Transformation of Civil Rights Law
Judicial Moral Philosophy and the Right of Privacy
The First Amendment and the Rehnquist Court
5. The Supreme Court’s Trajectory
II THE THEORISTS
6. The Madisonian Dilemma and the Need for Constitutional Theory
7. The Original Understanding
The Constitution as Law: Neutral Principles Neutrality in the Derivation of Principle
Neutrality in the Definition of Principle
Neutrality in the Application of Principle
The Original Understanding of Original Understanding
The Claims of Precedent and the Original Understanding
8. Objections to Original Understanding
The Claim that Original Understanding Is Unknowable
The Claim that the Constitution Must Change as Society Changes
The Claim that There Is No Real Reason the Living Should Be Governed by the Dead
The Claim that the Constitution Is Not Law
The Claim that the Constitution Is What the Judges Say It Is
The Claim that the Philosophy of Original Understanding Involves Judges in Political Choices
“The Impossibility of a Clause-Bound Interpretivism”
9. The Theorists of Liberal Constitutional Revisionism
Alexander M. Bickel
John Hart Ely
Laurence Tribe
More Liberal Revisionists of the Constitution
Justice William J. Brennan, Jr.
10. The Theorists of Conservative Constitutional Revisionism
Bernard Siegan
Richard A. Epstein
Justice John Marshall Harlan
A Judicial Philosophical Free-for-All
11. Of Moralism, Moral Relativism, and the Constitution
12. The Impossibility of All Theories that Depart from Original Understanding
13. In Defense of Legal Reasoning: “Good Results” vs. Legitimate Process
III THE BLOODY CROSSROADS
14. The Nomination and the Campaign
15. The Hearings and After
16. The Charges and the Record: A Study in Contrasts
The Civil Rights of Racial Minorities
The Civil Rights of Women Big Business, Government, and Labor
Freedom of Speech Under the First Amendment
17. Why the Campaign Was Mounted
18. Effects for the Future Conclusion
Appendix: The Constitution of the United States of America
Notes
Table of Works Cited
Table of Cases Index
“That is why what is being written and taught in our law schools matters. That is why it is important to understand that the spectacular efflorescence of modern constitutional theory is not a sign of vigor and health but in reality is the brilliant flower of decay.’’
“Where the law stops, the legislator may move on to create more; but where the law stops, the judge must stop.’’ (151)
This is Bork’s focus. Yes, legal, judicial, moral ideas are difficult and obscure. Therefore, be modest and make less law!
“Among the reasons, as reported in James Madison’s notes, was the objection raised by Elbridge Gerry of Massachusetts that it -
“. . . was quite foreign from the nature of the office to make them judges of policy of public measures.” Rufus King, also of Massachusetts, added that judges should “expound the law as it should come before them, free from the bias of having participated in its formation.” Judges who create new constitutional rights are judges of the policy of public measures and are biased by having participated in the policy’s formation.’’ (153)
The corrupting acid of power.
“What is more remarkable is that so much of the scholarly literature takes the same form. In article after article one reads arguments, offered as though they were devastating refutations, which consist of nothing more than a list of desirable decisions the principles of the historic Constitution could not have produced. The fact that this argument can be taken seriously indicates the decayed state of today’s academy. It is a demonstration that law is being seduced by politics and is thereby losing its integrity as a discipline. If it continues on this course, law will cease to be what Holmes named it, the calling for thinkers, and become merely the province of emoters and sensitives.’’ (261)
Bork’s worry that ‘law losing integrity’. Wrote this in 1990. Well . . .
Conclusion-
“The difference between our historically grounded constitutional freedoms and those the theorists, whether of the academy or of the bench, would replace them with is akin to the difference between the American and the French revolutions.’’
The lesson of the two revolutions is profound.
“The outcome for liberty was much less happy under the regime of the abstract “rights of man” than it has been under the American Constitution. What Burke said of the abstract theorists who produced the calamities of the French Revolution might equally be said of those, judges and professors alike, who would remake our constitution out of moral philosophy: “This sort of people are so taken up with their theories about the rights of man that they have totally forgotten his nature.”
“Those who made and endorsed our Constitution knew man’s nature, and it is to their ideas, rather than to the temptations of utopia, that we must ask that our judges adhere.’’ (356)
Concludes book with several chapters on his failed confirmation hearings. Revealing.
Bork is easy to read. Writing for the general reader, not lawyers or scholars. He doesn’t assume knowledgeable reader.
Reader will need serious interest and extended concentration.
Clear, persuasive, convincing, firm without arrogance.
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