The Tempting of America

by Robert H. Bork

  To recognize that the constitutional revolution worked by the New Deal Court was inevitable, moreover, is not quite the same thing as to concede its legitimacy. The combined forces of mortality and the power of appointment may enable a politically dominant movement to find Justices who will amend the Constitution from the bench. That is merely a description of power and the occasions when it can be exercised. The constitutional orthodoxy holds, however, that there is a Constitution with a historic meaning and that any individual is entitled to invoke that meaning to his aid no matter how many elections have gone against him. I wonder how many people would subscribe to the legitimacy of structural amendment if it were the first amendment’s guarantees of religious freedom, free speech, and free press that were about to experience excision. The New Deal Court’s refusal to set limits to national power is behind us, the consolidation of all power at the federal level is too firmly entrenched and woven into our governmental practices and private lives to be undone. That consolidation is, for that reason, now our effective constitutional law. There is nothing in that acceptance, however, that retroactively casts constitutional legitimacy about the way the change was accomplished.

  Unlike most revisionists, Michael Perry of Northwestern University’s law school believes that “[o]riginalism is fundamentally sound,”116 and indeed he defends it admirably against some of the most common revisionist attacks.117 The defects he sees in originalism “are not intrinsic, but comparative”;118 it is a fine theory, but his own is better.

  Perry begins with the “axiomatic” premise “that the constitutional text is authoritative—indeed, supremely authoritative—in constitutional adjudication.”119 The problem, he thinks, is that one cannot axiomatically or unambiguously describe the meaning of “the constitutional text.” One kind of meaning is of course the original meaning. However, some constitutional provisions—not all, but some—have an “aspirational” meaning in addition to their original meaning: that is, they “signify fundamental aspirations of the American political tradition.”120 If a judge believes that a particular provision signifies a fundamental aspiration and that the signified aspiration is worthwhile, the judge should bring that additional meaning to bear on the case before him.121 If there is no aspirational meaning, or if the aspirational meaning does not prohibit the relevant legislative choice, the original meaning must govern. However, “the fundamental aspirations signified by the Constitution…are highly indeterminate,”122 and in the end “the judge should rely on her own beliefs as to what the aspiration requires.”123

  Perry’s book provides illuminating insights into many important questions of philosophy, politics, law, and religion, but it does not succeed as constitutional theory, because it fails clearly to identify the source of a judge’s authority to invalidate legislative acts. If the authority stems from the moral worthiness of the particular “aspiration” brought to bear by the judge, then it would seem to be irrelevant whether the aspiration is or is not “signified” by the Constitution. If the authority instead stems from the Constitution’s status as the supreme law of the land, deliberately adopted and maintained by the consent of the governed, then only the original meaning of the document can be legitimate material for the judge.124 As Michael McConnell has summarized Parry’s dilemma:

  The force of the originalist argument is that the people had a right to construct a Constitution, and that what they enacted should therefore be given effect, including the portions allocating powers to representative institutions. The force of the usual noninterpretivist argument is that judges should not be constrained in their quest to do good, either by the decisions of past generations … or the beliefs of the majority…. Professor Perry’s intermediate position contradicts both these premises, but offers no persuasive normative argument of its own.125

  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.”126 In a major law review article, Levinson explains that “[f]or 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.’ ” He admits that “[t]o put it mildly, there is something disconcerting about accepting the Nietzschean interpreter into the house of constitutional analysts, but I increasingly find it impossible to imagine any other way of making sense of our own constitutional universe.”127 Levinson goes on in the same article to argue that “[t]here are as many plausible readings of the United States Constitution as there are versions of Hamlet, even though each interpreter, like each director, might genuinely believe that he or she has stumbled onto the one best answer to the conundrums of the texts. That we cannot walk out of offending productions of our national epic poem, the Constitution, may often be anguishing, but that may be our true constitutional fate.”128 Thus, Levinson concludes in a later work that “[t]here is nothing that is unsayable in the language of the Constitution.”129

  Levinson does not explain why his view of the Constitution as non-law does not lead to the conclusion that judicial supremacy is without legitimacy. Nor does he explain why anyone, including legislators and lower court judges, should consider themselves bound by the decrees of a purely political Supreme Court. In reviewing Levinson’s latest book, Constitutional Faith, political philosopher Thomas Pangle of the University of Toronto observed that:

  These are not the speculations of some distant or foreign observer; this is the strangely hopeful and exhilarated testimony of a preeminent (and by no means unrepresentative) teacher of the law. And, I submit, this book should be for all of us an alarm bell ringing in the night. Something ominous is afoot in the teaching of the law of this land.130

  Unfortunately, although Levinson has some valuable insights to offer, Pangle’s overall assessment seems correct.

  Leonard Levy of Claremont Graduate School has recently published a book entitled Original Intent and the Framers’ Constitution, which attacks a highly oversimplified version of the philosophy of original understanding that bears little resemblance to the theory set out in this book.131 Thus, Levy goes to great pains to prove that: (1) the Framers did not mean for us to attach interpretive weight to their subjective intentions (hence Madison’s secreting of his notes); (2) that the Framers did not mean to freeze the Constitution so that it would lose its character as a document intended to serve for ages to come; (3) that finding the original meaning of some constitutional provisions is quite difficult; and (4) that the Supreme Court has in fact ignored the constitutional text in many prior cases, behaving as if it were a sitting constitutional convention presiding over the writing of a judicial common law constitution.

  No even moderately sophisticated originalist holds the view Levy refutes. Originalists, as explained in Chapter 7, do not seek the subjective intent of the Framers but rather the objective meaning that constitutional language had when it was adopted. This can be a difficult task, but permissible and impermissible ranges of meanings can be ascertained. Language is sometimes hard to interpret, but that does not suggest that it can be made to mean anything. Similarly, the fact that terms as originally understood must be applied to new circumstances and factual situations does not mean that we should conclude that those terms can be redefined to say absolutely anything we like. Levy demonstrates that the Court has in the past sometimes ignored the constitutional text, but does not, and I think could not, establish that the Court on such occasions behaved legitimately and should continue on that course.

  Justice William J. Brennan, Jr.

  In a 1985 speech at Georgetown University, Justice Brennan expounded his theory of constitutional interpretation and applied it specifically to his conclusion that the death penalty is unconst
itutional.132 As he noted, “Because judicial power resides in the authority to give meaning to the Constitution, the debate is really a debate about how to read the text, about constraints on what is legitimate interpretation.”133 He then illustrates how to read the text in a way that seems to contradict the text. He begins unexceptionably enough: “As augmented by the Bill of Rights and the Civil War Amendments, this text is a sparkling vision of the supremacy of the human dignity of every individual. … It is a vision that has guided us as a people throughout our history, although the precise rules by which we have protected fundamental human dignity have been transformed over time in response to both transformations of social condition and evolution of our concepts of human dignity.”134

  Justice Brennan traced the ways in which the various safeguards of the Constitution contribute to human dignity—the safeguards thrown around the criminal process; the principle of one person, one vote; rights of expression and conscience; and much more, including the decisions to apply the Bill of Rights to the states.

  I do not mean to suggest that we have in the last quarter century achieved a comprehensive definition of the constitutional ideal of human dignity. We are still striving toward that goal, and doubtless it will be an eternal quest. For if the interaction of this Justice and the constitutional text over the years confirms any single proposition, it is that the demands of human dignity will never cease to evolve.136

  At this point, a vague unease begins to set in. The coupling in that paragraph of the constitutional text and the evolving demands of human dignity suggests that the meaning of the text must evolve, not by applying old principles to new circumstances but by changing the principles themselves. And that is precisely what Justice Brennan means, for he then identifies capital punishment as “one grave and crucial respect in which we continue, in my judgment, to fall short of the constitutional vision of human dignity…. As I interpret the Constitution, capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.”136

  Human dignity thus becomes a clause of the Constitution that judges may apply in accordance with their own philosophies. That is clear because Justice Brennan concedes that his interpretation is not subscribed to by either a majority of his fellow Justices or a majority of his fellow Americans. In every capital punishment case, he votes that the death penalty is unconstitutional. “Because we are the last word on the meaning of the Constitution, our views must be subject to revision over time, or the Constitution falls captive, again, to the anachronistic views of long-gone generations.”137

  This thought is worth examination because of Justice Brennan’s preeminence in forming our constitutional law for a third of a century. He would avoid, on the one hand, the mistake of adhering to the anachronistic views of past generations, the generations that gave us the Constitution, and also avoid, on the other hand, the majority vote of today’s living generations. Having avoided both the original meaning of the Constitution and today’s democratic choice, what is left? Only Justice Brennan’s moral views on capital punishment. Those moral views are made relevant only by speaking as though the various manifestations of concern for aspects of human dignity in the provisions of the Constitution somehow added up to a human dignity clause that had no definition other than whatever definition a particular Justice chooses to give it. This, of course, is precisely the method by which Justice Douglas created a new right of privacy clause in Griswold v. Connecticut. The provisions of the Constitution may be said to exemplify concern for a great many general and admirable values. The technique used by Justices Brennan and Douglas is capable, therefore, of giving us a great many new clauses in the Constitution, clauses that bear little relationship either to the ratifiers’ intentions or the desires of contemporary Americans.

  If there were a human dignity clause in the Constitution of the sort Justice Brennan would import, it would not necessarily give the results he wants. A Justice of different temperament could as easily dwell upon the human dignity of the murderer’s victim as upon the dignity of the murderer. The result of that exercise might be not merely to uphold the death penalty but to insist that states must use it. What concepts such as “dignity” and “privacy” mean in application depends entirely upon the sentiments of each judge.

  10

  The Theorists of Conservative Constitutional Revisionism

  Though the overwhelming preponderance of constitutional theorists are liberal to radical law school professors, there are a few who do not fit that category, and I have thought it well to discuss them separately.

  The two most prominent theorists of what may be termed a conservative bent are Professor Bernard Siegan of the University of San Diego law school and Professor Richard Epstein of the University of Chicago law school. Siegan and Epstein, though they differ greatly from the liberal theorists just examined in the results their theories would produce, are, like them, revisionists. Though I am more in sympathy with their political ends than I am with the objectives of the ultraliberals, I do not think they establish satisfactorily that those ends may be reached through the Court.

  Justice John Marshall Harlan, like Justice Brennan, also attempted a connected statement of theory that departs from the original understanding of the Constitution. Since Justice Harlan is generally regarded as moderately conservative, his theory is discussed in this chapter. The chapter concludes with the most recent debate among the Justices on the proper method of departing from the original understanding of the Constitution.

  There are, of course, theorists who take the traditional position that the original understanding controls, scholars such as Raoul Berger, and Professors Michael McConnell, Lino Graglia, and Joseph Grano, of, respectively, the law schools of the University of Chicago, the University of Texas, and Wayne State University. There are other professors of constitutional law who work from originalist assumptions but have not argued the point. These persons are not discussed, since my object in this and the preceding chapter is simply to document the prevalence of revisionist theories, primarily in the law schools, and the flaws that inhere in them.

  Bernard Siegan

  A major difference between Professor Siegan, of the University of San Diego law school, and the liberal theorists is that he is not selective in the human freedoms he would have courts protect and does not display an egalitarian, redistributionist impulse. As the title of his book, Economic Liberties and the Constitution,1 suggests, Siegan thinks economic liberties are undervalued in modern-day constitutional adjudication and he strives to make a case for increased protection. His strategy is to establish that economic liberties are no different, from a judicial point of view, from other freedoms not mentioned in the Constitution that the modern Court does see fit to protect. In this, he is surely correct. As Judge Learned Hand long ago pointed out,

  I cannot help thinking that it would have seemed a strange anomaly to those who penned the words in the Fifth [Amendment] to learn that they constituted severer restrictions as to Liberty than Property…. I can see no more persuasive reason for supposing that a legislature is a priori less qualified to choose between “personal” than between economic values; and there have been strong protests, to me unanswerable, that there is no constitutional basis for asserting a larger measure of judicial supervision over the first than over the second.2

  Siegan would not necessarily decide for the claimed freedom in each case, but he does contend that one type of claim may not be preferred to the other merely because of the classification given it. In terms of judicial entertainment of claims to freedom, Lochner v. New York3 and Adkins v. Children’s Hospital4 are as respectable as Griswold v. Connecticut5 and Roe v. Wade.6

  The logic is impeccable if one accepts Griswold and Roe, and much else in contemporary jurisprudence, as proper discharges of the judicial function. If not, then Siegan’s case for unmentioned economic liberties is, by a parity of reasoning, defeated. Neither set of liberties being mentioned in constitutiona
l materials, their claims for judicial consideration must stand or fall together. Of itself, the juridical equivalence of all extra-constitutional freedoms does not require Siegan’s outcome. But it does require either his conclusion or mine—either substantive due process all the way or not at all. If we want Griswold and Roe, then Lochner and Adkins come with them. If we reject Lochner and Adkins, then we cannot have Griswold and Roe. My position is that the Court had no business undertaking to give a substantive answer to the claim of right in any of the four cases. There being nothing in the Constitution about maximum hours laws, minimum wage laws, contraception, or abortion, the Court should have said simply that and left the legislative decision where it was. Siegan chooses to accept, if not the results in all four cases, then the judicial approach in all four. The Court, he says, was right to decide each case on the merits and not merely say the subject matter was not covered by the Constitution.

  The result is that Siegan places the Court in a stance of acrossthe-board libertarianism. Substantive due process becomes a policy of laissez faire, not just with respect to economics but with respect to all human activity. This by no means implies that Siegan would uphold the claimed freedom in each case, merely that he would have the Court examine the challenged legislation in a critical mood. He quotes approvingly Aaron Director’s statement: “Laissez faire has never been more than a slogan in defense of the proposition that every extension of state activity should be examined under a presumption of error.”7 I, too, am an admirer of Director and accept the correctness of laissez faire, as so defined. The next question, however, is who is to apply the presumption of error, players in the political process or judges. My answer is the former; Siegan’s is the latter.