A Study In Contrasting Philosophies of Judicial Conservatism
I, Judge Robert Bork, am a Judicial Conservative: Judges must Interpret the Constitution according to the Original Understanding of the Framers and not according to Moral Law. That alone preserves the Constitution. Your theories, Sir, lead to anarchy.
Robert H. Bork, Jurist and Author, according to his philosophy laid out in The Tempting of America
In Contrast to
I, John E. Wolfgram, am a Judicial Conservative: Judges can only interpret the Constitution for Government. Only Juries can interpret and balance it for the People. That is the embodiment of Moral Law on Earth. Your judicial philosophy of Original Understanding disguises an elitist and anti democratic philosophy of Judicial Supremacy over the Constitution, and that philosophy unites all of Government against The People.
John E. Wolfgram, Blacklisted Lawyer and Legal Philosopher.
JUDGE ROBERT BORK was nominated to the United States Supreme Court by President Ronald Reagan in l987. The President, in his nomination address, spoke very highly of this judge who presented himself as judicial conservative, saying in his nomination speech:
"Judge Bork is recognized as a premier constitutional authority. His outstanding intellect and unrivaled scholarly credentials are reflected in his thoughtful examination of the broad fundamental legal issues of our times. ...
"Judge Bork, widely regarded as the most prominent and intellectually powerful advocate of judicial restraint, shares my view judge's personal preferences and values should not be part of their constitutional interpretations. The guiding principle of judicial restraint recognizes that under the Constitution it is the exclusive provence of the legislature to enact laws and the role of the courts to interpret them." (President's Nomination Statement, July 1, l987.)
No sooner had the President finished, then Senator Ted Kennedy presented another view on national television.
"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual that are the heart of our democracy."
The liberal wing of the Senate Judicial Committee organized the strongest opposition to confirmation any Supreme Court nominee has ever faced. Judge Bork was not confirmed.
After the hearings, he resigned from the United States Court of Appeals and wrote a book definitive of his judicial philosophy entitled "The Tempting of America" published by Simon and Schuster. In it he presents his theory of constitutional interpretation which he calls "The Original Understanding".
How can President Reagan see Judge Bork as a cornerstone of constitutional justice, while Senators see him as the epitome of evil? How can a single philosophy of "Judicial Conservatism" be so controversial so as to cause such politically extreme commentary?
Our object is to learn about Bork's judicial theories; not just what he says, but what it means to a constitutional democracy and to examine basic alternatives, if any there be: And there begins the problem because Judge Bork says that no other theory is possible and denies there is any place in Constitutional Interpretation for moral law.
His denial is built around a claim of the "Impossibility of All Theories That Depart From The 'Original Understanding'" (pp. 251-259) in which he presents three arguments to persuade us that the only viable theory of Constitutional Rights Adjudication is his "Original Understanding". Engage your thinking cap and come with us to examine his theories and do the "impossible" by refuting his premises and finding the moral means of Constitutional Interpretation he claims cannot exist.
This article exposes five basic weaknesses in his arguments and compares his "Original Understanding" to a theory of constitutional interpretation with the participation of the people as Fully Informed Juries, "Democratizing the Judiciary". We shall see on examination:
The next step is to "Democratize the Judiciary".
While the answer is demonstrated throughout this article, a short form answer is gleaned in a brief examination of his basic premise of "Judicial Supremacy". It contradicts his conclusion and demonstrates the judicial system he proposes is the present judiciary by a different name.
The Contradiction: If one's theory of judicial interpretism is according to the framer's original understanding, then one must, at a minimum, retain the relationship of the judicial role to the constitution and to the other branches that the framers understood it to be.
Nowhere does the Constitution suggest the Judiciary should be supreme to it, or to the other branches, nor is there any indication that any framer, let alone a majority intended that. On the contrary: Article I says only Congress can make law. Thus, "Judicial Supremacy" is not a part of a true original understanding. But Judge Bork claims "Judicial Supremacy" as the foundation for the legitimacy of all theories of judicial interpretism.
From this, one may understand that Judge Bork is not the "Judicial Conservative" he claims to be. He is a "Judicial Supremist" and that is an entirely different thing: It is Supremacy of the Judiciary, and hence of Government; Over The Constitution, and hence, Over the People.
In that his major premise, Judicial Supremacy, contradicts his conclusion, Original Understanding, it may also be inferred that he is not a very good philosopher. Such contradiction in one's philosophy, whether moral or judicial, is generally considered to be very bad form; not to mention what it does to substance.
It almost seems self evident, whether Bork's theory gets to the original understanding or not, that the only legitimate way to interpret the Constitution is to find the framers intention and let that intention be your guide.
There is another theory that also seems self evident: Given 200 years of judicial gloss over the Constitution, and several amendments that change its meaning, there is no such thing as an "original understanding". Given what new understandings do to constitutions, Bork's theory invites amendment by judicial rationalization clothed in antiquity. The best way to interpret a constitution is as it is written and the best evidence of what it means is what it says. Everything else, including "original understanding" is mere argument.
The basic alternative to Bork is not in finding a "true" original understanding that doesn't exist, but in asserting a democratic balance to the "original understandings" judges create.
Again, Bork just assumes it must be government's judges who interpret it. How convenient, but given it is the basic contract between government and governed we speak of, there is a conflict and no more reason judges should be a final arbiter of its meaning than the people.
And one is as convenient as the other. If you are to put a constitutional question before a court, why should it not be a jury that decides the issue, rather than the judge?
To this, Judge Bork would say: That is insanity! It would lead to anarchy and a break down of all government systems.
To that I say: That's government paranoia talking. All a jury does is decide one case at a time. That doesn't cause anarchy. It merely causes a slight uncertainty of enforceability that tells government that the rule it is imposing on the people, does not meet their common sense understanding of constitutionality. Far from anarchy, it gives the government an opportunity to develop better laws more acceptable to the people and to simplify a legal system overburdened with two centuries of antiquated rationalizations.
But, Judge Bork might argue: Juries are made of ordinary people who have no expertise in constitutional construction.
To which we would smile and say: That's Right! For whose benefit do you think the Constitution was intended: The lawyers?
THE POINT: The above demonstrates how fertile a dialogue is foreclosed by considering Alternative Theories Impossible.
Let us now examine his arguments for judicial supremacy without moral law.
Judge Bork describes the moral theory judges might use to justify constitutional decisions at Page 252.
"...at a minimum, the judges must have a moral theory and persuade the public to accept it without simultaneously destroying the function of Judicial Supremacy."
Bork Begs The Question:
The first question he begs is whether judicial philosophy can be imposed without stating it, let alone persuading the public to accept it. In other words, is a philosophy of constitutional interpretation without discipline to constitutional principle, a legitimate constitutional philosophy of law? I think there is no doubt it is a "moral philosophy" (moral pragmatism) out of which "principles" of constitutional interpretation like Substantive Due Process and Compelling or Rational State Interest, emerge, evolve, live and die. That is legitimate in the sense that counts: When practiced almost exclusively by our judges, it is "self legitimating".
The Question Begged is that the Judges must state their operative philosophy openly. Neither Judge Bork, nor judges generally, do that.
Bork Begs Another Question:
The second question begged is that the "Function of Judicial Supremacy" must, or should be sustained. It is interesting that this major premise that makes such a tremendous difference in the judicial role, is just assumed as if no alternative is possible.
In fact, at least three alternatives are possible:
One is the judicial role that Bork SAYS is his "Original Understanding"; that the judiciary's role should be reserved and limited. That could be accomplished by Congress' Constitutional Authority to impeach judges and involves the interpretation of "Judges shall hold their office during good behavior" in Article III. If it is up to Congress to interpret that clause, and there is no constitutional reason it should not be, then the Supreme Court and all judges must give way to congressional interpretations of the Constitution, lest Congress find that failing to support the Constitution as Congress sees it violates their oath and is not "good behavior" subjecting them to impeachment. The result would be that judges would make no constitutional interpretation where they could not point to the Constitution, As It Is Written, to support it, and "Judicial Supremacy" would be replaced by a Congressional Supremacy more amiable to democracy.
The Second is to replace Judicial Supremacy with a form of democratic supremacy. When the Supreme Court interprets the Constitution, it doesn't just add "judicial gloss" but it changes it without the advice and consent of the other party to it, the people. Thus, each of these little "judicial amendments" should be put to the people for ratification before becoming binding. Admittedly, this is somewhat cumbersome, but not impossible. It could be done by submitting Judicial changes to congress for approval as constitutional amendments and then to the states for ratification.
Some would say that is nonsense. The Supreme Court does not make decisions that are influential enough to warrant being treated as actual amendments to the Constitution. To those, I say, "You don't know what you are talking about." The most far reaching constitutional changes in the relationship between government and governed have been accomplished by judicial edict. To name a few:
Sovereign Immunity; Absolute Judicial and Prosecutorial Immunity; Qualified immunity; First Amendment Compelling State Interest Doctrine; Arrogant Indifference to the Petition Clause; Eleventh Amendment State Immunity From Its Own Citizens; Second Amendment Exclusions of Arms ownership from protection; Fourth Amendment Exclusionary Rule, Fifth Amendment Rational State Interest Doctrine; Property Seizures; Watering Down of Substantive Rights like Jury Trial; linking "Cruel and Unusual" to our barbaric past and Interstate Commerce Clause Incursions into State Sovereignty.
These are just some of the major modifications to our Constitution by judicial edict. But the one that really stinks is the judicial control over the development of all political and legal philosophy through compulsory bar associations and the educational standards of lawyers. That is a compulsory propaganda pipeline of judicial supremacy to the best and ablest legal/political and philosophic minds of the nation.
Do you want to know why Judge Bork got away with assuming "Judicial Supremacy"; a major contradiction to his philosophy? Because all of us have been propagandized into "One Orthodox Religion of Judicial Supremacy", all of our lives. That's why.
Third; "Judicial Supremacy" can be restricted to government. That is, the Judiciary is the final arbiter of constitutional meaning, but only for the government. The people, recognizing the constitutional adversity between government and governed, have jury nullification as their balancing force.
The Result: The judges are seen as government's spokesman for its own constitutional contentions; And in that same forum, the jury is the spokesman for the people's interpretation.
And if the judge and the jury disagree? So what? They solve the case at hand, and if the jury does not support government's interpretation, it can change its interpretation before the next case arises; or be more convincing of its constitutionality.
Is that all government's interpretations of the Constitution are, contentions and not law? What else can they be without the consent of the governed? It is a part of the on going bargaining process between government and governed by which they determine, through consent and without force, what the law shall be. In a cultural sense, this is the way a civilized society progressively becomes more civilized. It is a negotiating process to ultimately determine what the supreme law of the land shall be, by CONSENT, not by Judicial Edict.
All that is required to accomplish this major change in the balance of power between government and governed is to recognize the jury as it was broadly conceived in Revolutionary Times: That they are competent to judge the law as well as the fact. That is the right of "Jury Nullification" or "Fully Informed Juries."
But understand, Jury Nullification is not an idea created to shift the balance of power. It is a RIGHT government has stolen from juries in order to institute Judicial Supremacy.
Thus, we see initially, Judge Bork begs the most important questions, which if faced honestly, would change his own idea of what "The Original Understanding" is and how it works or fails to work. The Real Original Understanding is that we, the governed shall always have real bargaining tools with which to negotiate terms of consent with government. Jury Nullification is the "line item veto" by which the governed continuously limit government's nonconsented to assumptions of power.
Judicial Supremacy is the opposite. It is the means by which government continuously assumes power without the due process formality of obtaining the consent of the governed.
By ignoring this basic weakness in his premises, Judge Bork's three arguments to show the Impossibility of Theories that Depart from "Original Understanding" are so weak as to suggest a design to coverup and avoid addressing the basic question that is begged throughout his book: Why is judicial, or government supremacy over the Constitution necessary?
Why should government, through its judiciary, legislature, or executive; or all three combined, have supremacy over the Constitution, as to its own people?
The Answer: There is no reason at all. In fact, Judge Bork's "Original Understanding" of the Constitution is not mine or yours, but government propaganda of its own contentions and it is designed to mislead us. When you examine his arguments you can see that he attempts in his book what he claims no one can: Justify a theory of constitutional construction called "Original understanding" but which is in reality, divorced from the most important rules of interpreting any legal document, to wit:
First: The Parole Evidence Rule is that the best evidence of what a document means is what it says, in its entirety, as it is written. It is only when its meaning cannot reasonably be found from its face, that we go to an "original understanding" to clarify what is meant within its four corners. But because of amendments occurring years, even centuries after it was drawn, there is no "original understanding" of the Constitution; only of some clauses; and to interpret it clause by clause according the understanding when those clauses were drafted defeats the rule of construction that documents must be construed in their entirety.
Second: What parties to contracts intended, is always a question of fact for the jury. That it should be different in the construction of the "Original Understanding" is an arbitrary rule that just happens to be convenient for government.
Third: There are two parties to the Constitution; Government and governed. Every theory propounded by Judge Bork, whether his own, or that of his straw man opponents, the "law professors", relies on one fundamentally false premise: That it is somehow "legitimate" for only one party to a two party contract; to unilaterally declare itself the final, and only interpreter of that contract, and to maintain that position through the force and coercion of its "police powers".
That is not a philosophy of "interpretism". That is false propaganda to justify tyranny disguised as an inevitable favor that Judicial Supremacy over the Constitution does for us because "The people are not capable of interpreting it for themselves."
In view of this exposure, lets examine his three Arguments that are supposed to convince us that "Original Understanding" as he proposes it, is the only judicial theory possible. His three arguments begin on page 252. They are:
Except by reference to the "Original Understanding", there is no satisfactory explanation of why judges have authority to impose their morality upon the rest of society. The method of imposing this new morality is "for judges slowly to increase the number of occasions on which they invalidate legislative decisions, always claiming that this is what the Constitution requires, until they effectively run the nation or such aspects of policy as the professors care about."
Judge Bork and I would agree that this is exactly what the Supreme Court has been doing for a long time. But if that is so, why should we believe that a "satisfactory explanation" is necessary at all? In fact, that is a common lesson of history. Dictatorships and tyrannies emerge and thrive for generations based in such irrational justifications as "The Divine Right of Kings". The ultimate "justification" for unrestrained power in government, historically, is superstition and brute force, not reason.
The explanation of the judge's authority is quite simply: The king gave it to him. If we seek to find his authority in something other then the king's raw power, as in a constitution, then clearly, we cannot allow the King and his very own judges to be the final arbiter of it, as they will always justify their assumptions of power by their absolute right to proclaim it so.
The fact is, to allow judges to be the final arbitrator of constitutional meaning is like superstition. Once they say the Constitution means such and such (i.e. Every eighteen year old must register to die in Viet Nam) there is no appeal to reason. We must accept the correctness of its interpretation on faith. Bork's "Original Understanding" only pretends to push faith back a step, so that our faith need not be in the particular judge, but in the hidden meaning he divines from the framers. That is "The Divine Right of Kings" by another name.
The justification Judge Bork seeks is a totally subjective justification that ultimately means, "Trust the Judge on Blind Faith." To be sure, Bork would deny that, but he has to confront his own methods. Take for example, his treatment of the Fourteenth Amendment Privileges and Immunities Clause at pp 36-39 and 166. In effect, the clause, which is clear on its face, is too expansive of judicial power, in Judge Bork's opinion, so he says of that clause clear on its face, that the "original understanding" of "[T]hat clause has been a mystery since its adoption and in consequence has, quite properly, remained a dead letter." (p.166)
If his treatment of the Privileges and Immunities Clause is totally subjective, the only way to describe his treatment of the most "expansive" clause in the Constitution, (The Petition Clause) is that he ignores it as if it does not exist.
If one asks Judge Bork why he ignores these "expansive" clauses, his answer would be 'Because they are so expansive of judicial power without a clear legislative history demonstrating that the framers intended them to be so.' And his response would be absolutely false, for two reasons:
First, while it is true the Supreme Court has seldom interpreted the Privileges and Immunities Clause directly, it is not because the framer's intent is not clear, but because the same framers also wrote the clause into positive law. See 42 USC 1983 and 18 USC 241-242. It is one of the most interpreted clauses in the Constitution, albeit, under statutes.
Second, note a peculiarity about Judge Bork's "Judicial Conservatism". To be sure, he abhors clauses that expand judicial power SAYING that where there is not a clear constitutional command, Judges should demur to legislative power. But when, as in cases of interpreting the Privileges and Immunities or Petition Clauses judges demur to the state or federal legislatures, the effect is to annul the constitutional balancing forces of judicial protection of Constitutional Rights and reverse the constitutional design so that now the judiciary and the state and federal legislatures and executives in effect, gang up on their citizens to steal their rights under another mystique: That Government really represents the people; whether what it does respects the Constitution or not.
In other words, Judge Bork's brand of judicial conservatism really means freedom for government to unite against the people. That turns the judiciary into a safe haven for judicial cowards who have not the courage of decent moral conviction. Disguised as only seeking the "original understanding" they selectively ignore those clauses that command them to defend us against indecent government and deprive us of the benefits of "Separation of Powers" by making the separation work only one way: To Insulate government from accountability to those it injures in violation of a moral interpretation of the Rights the Constitution enshrines.
There is no threat of tyranny in judicial disagreement with the other branches of government. That is because the judiciary has no enforcement power of its own. The threat of tyranny is most when the judiciary unites its interests and theories with the other two branches, for among them they have all the power of government systematically organized against its people under a banner of "constitutional righteousness".
Judge Bork and I have a basic conflict in legal philosophy. The protections of the Constitution are not found in subjective "Original Understandings", but in the People's practical ability to disagree with government's version of what that understanding is, and in plain view of that right (as in jury nullification or an amending process) to accept or reject that "understanding".
That is the justification of judicial power by free ongoing consent of the governed and it is the only rational justification of judicial interpretism possible. Jury Nullification is the day to day right of the people, as they are tried for transgressions against government's interpretations, to be governed under a constitution and reject government's arbitrary changes. Denial of consent, on a case by case basis, sets government's limits to enforce its interpretations.
Absent that consent, government by "The Original Understandings the Framers Never Thought Of", is tyranny.
Thus, his first argument not only fails to give a reason why alternative theories should not emerge, but it is suspect because it affirms a design that government, through its judiciary, is, and shall remain the final arbiter of the instrument that was designed to limit it.
And that is called "The Original Understanding"?
The Second Argument begins on page 253: "In order to gain the assent of the public, the judges explanation of why they are entitled to displace our moral choices with theirs would require the judges to articulate a system of morality upon which all persons of good will and adequate intelligence must agree."
This is nonsense. First note that while Judge Bork concedes that the "assent of the public" is critically important, he has no room for that in his own philosophy. Rather, by calling it the "Original Understanding" he has us believe the constitutional innovations judges make under that name are merely the unfinished works of the framers and therefore no assent of the public to such changes two centuries after the fact is necessary. (Judge Bork has a cop-out. Where the Constitution is silent, he says, the legislature is free to act. That ignores the judicial role in creating that "silence". The most deafening silence in America today, is judicial arrogance to the Petition Clause as it systematically goes about insulating all of government from accountability to the people.)
Next, observe the standard he asserts is one that has never been met anywhere. It is easy to "prove" impossibility by setting standards like "all reasonable people must agree". Even our Bill of Rights, reflecting the framer's morality, was not universally accepted then, nor is it now. The standard by which moral doctrine is translated into legal doctrine is, and must be the standard the Constitution itself sets for amending it; not some unreachable standard of universal agreement that can't exist and couldn't be measured if it did.
Interpreting the Constitution is not the same as amending it. "Interpreting" it so that new moral meaning comes forth with the force of law binding on every court in the land, is not merely interpreting it, but amending it. And selectively refusing to give the full moral and legal force of some of its clauses is also amending it. By this selective "interpretation" officers sworn to support it now find their loyalty owing to higher courts instead of to the Constitution, as it is written. To whatever extent such a system attains "universality" it is not by appeal to reason; and it is not by consent: Not my consent.
In the sense of "interpreting" THE LAW, as opposed to merely government's contention of what the law is, all interpretation is at the trial level. In disputes between government and governed, the judge and the prosecutor, frame the issue of law as they, for government, contend it to be. Without rights to veto government's contentions, the law progressively becomes what government wants it to be, independent of the people or their Constitution.
But let's not kid anyone. Such "law" without the consent of the governed, is not law, but the raw coercive force of tyranny.
Judge Bork's Third Argument is phrased an "objection to all theories that require judges to make major moral choices" p. 253.
His objection ascribes separate roles to moral and to legal reasoning, and while he concedes that moral philosophy has a role in legal reasoning, its role is limited to "assisting judges in the continuing task of deciding whether a new case is inside or outside an old legal principle." If Judge Bork merely means "as opposed to creating new legal principles" we could agree. But he doesn't mean that at all. He explains some of the complexity of constitutional reasoning in Chap. 7, The Original Understanding. There are selections of principles to be made at different levels and in fact, there are enough "old legal principles" already established so that a judge can still reach any end he wants with out creating new ones or going outside the bounds of accepted legal reasoning as laid down in higher court decisions.
But one need not read his book to find the fallacy in that statement. Honesty, integrity and the courage of conviction are values basic to most moral systems, and certainly to the morality upon which our Constitution is founded. But these are not moral values for judges in Judge Bork's legal system. To the Contrary.
The system of "Judicial Supremacy" that Judge Bork supports is based in a disciplinary rule of "stare decisis" in which the higher court sets out the rules and principles lower courts must follow. Today, trial courts never and higher courts seldom reason from or to the Constitution. In fact, legal education consists of learning two centuries of "judicial gloss" taught as propaganda through compulsory bar association law schools while the Constitution itself, is not taught at all.
Most judges couldn't find the Constitution they are sworn to support, let alone reason to it. To even mention the Constitution directly in court is in very bad form by an attorney and a sign of "dissidents" and "constitutional mavericks" who are still naive enough to believe the Constitution means what it says.
While Judge Bork would not have judges "making major moral decisions" in his system of "Judicial Supremacy" the fact is that the first constitutional decision any judge makes embodies the most important moral decision he will ever make: Shall he keep faith with The Constitution as his oath commands, or to the rule of stare decisis as his more temporal interests require?
What does it do to processes of constitutional reasoning to swear allegiance to the Constitution but give exclusive fidelity to higher courts? If a judge truly believes the constitution means thus, but a higher court says otherwise, he will rule against his conscience and according to the higher court. The system is based on false premises and judges begin their service to the Nation, with an intent to defraud the people of true fidelity to the Constitution, as it is written.
Stare Decisis gives the judiciary a false appearance of discipline. But judges only appear to follow higher court rules. Having broken faith with their oath, breaking faith with stare decisis is no big thing. In truth, there are so many rules that judges can do whatever they want in any given case. There is no discipline; no means to require them to exercise good faith; no penalty for refusal; indeed, there is no standard by which to judge a judge except the readiness or refusal of higher courts to reverse him; and that too is as undisciplined and arbitrary as the trial courts decision processes; albeit, differently motivated.
In sum, the system is not designed to deliver justice, under the Constitution, or otherwise. Rather, it is designed, almost like a military structure, to discipline, not the judges, but the people. It is designed to discipline us into whatever unconstitutional way of life government dictates. Believe Judge Bork: Just like in Nazi Germany, the judicial system of America today can not afford to be tempered by moral philosophy; least of all that same moral philosophy from which our Constitution came: The Moral Philosophy that rallied Americans against Great Britain to win the war of 1776, and who preserved their purpose in our Constitution, as it is written.
At Page 254 Judge Bork states a reason for his belief: "The first reason to doubt that moral philosophy can ever arrive at a universally accepted system is simply that it never has." He then goes on to recite some philosophers who tried and failed, and concludes that it is not possible.
We have already seen the fallacy of the first part of that assertion: Just as moral principles were the foundation of the Constitution in the first place, moral principles can amend it, and the standard of acceptance is not "universality" but the standards set by the Constitution itself, for amendment.
But the rest of his proposition is plain silly for a grown man who thinks of himself as a philosopher. The only possible reason that Judge Bork can come to this conclusion is if he believes that there is no objective basis for moral values and every moral philosophy is like any other, and none have any margin of objective truth or goodness over any other.
Why do I say that? Because his conclusion begs the question of man's ability, over time and through reason, to separate good from evil and truth from falsity; and he begs the question in the negative. His statement reminds me of the patent engineer who resigned from the US Patent Office in l915 because he thought that everything that was possible had already been invented, and he would surely loose his job soon anyway.
And it is so obviously false. Think about it. Only six hundred years ago our civilization was locked in a "Dark Ages" haunted by superstitions and evil demons; kings ruled the world by Divine Right and the "rule of law" was the might of the sword, and the "heavens" were made of "celestial stuff" through which the sun circled a flat earth. And the world turned.
Five hundred years ago, a mere mortal put two lens together to peer into the celestial stuff more closely, like we are doing to Bork's "Original Understanding", and in the space of a century the entire philosophic nature of the universe and man's place in it, changed for all time.
As he struggled to grasp the meaning of new relationships to the universe, and having gathered a raw data and operational rules, another mere man, sitting under an apple tree, conceived that all this data is related and could be organized into a body of knowledge, and it was called science, and from it came the industrial revolution and advances by leaps and bounds in every discipline and endeavor.
These are advances in science, not moral philosophy and law, you say. Nonsense: Moral philosophy and law are sciences: It learns from past experience and from the ideas of moral thinkers who abstract principles and organize and reorganize them for greater and greater meaning. That's what a science is. Fortunately, the rest of science hasn't been shackled by dogma of "Divine Right of Kings" made compulsory education by stare decisis.
And as in other sciences, liberation from superstition gave rise to new concepts of human dignity. In 1863 on the battlefield that ended human slavery, one man said it best:
"Four score and seven years ago our forefathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal..."
That was as profound a statement of accomplished moral philosophy as any there ever was, and it referred to its own roots in 1776:
"We hold these truths to be self evident; that all men are created equal, that they are endowed by their creator with certain unalienable rights, that...to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed..."
A new moral idea of man's just relationship to government gave birth to his first constitution: Our Constitution.
If that was moral philosophy's finest hour, within two years ten more shown brightly: The Bill of Rights. So much for Judge Bork's contention that "moral philosophy can never arrive at a universally accepted system". There it is: Our Constitution.
Where do you think it came from if not from the efforts of moral philosophers down through the ages?
And that's only the beginning of the story: Our Nation survived in a barbarian world that knew nothing about rights or democracy, and cared less. We taught the French and weathered the British and with our barbarian tools and a morality that had not yet blossomed, we conquered a wilderness "from sea to shining sea"; and the cosmos, the very stuff of God, is now our frontier.
To be sure, we have our shames: We enslaved the Black and ruthlessly slaughtered the Red, and paid the price of our immorality in a civil war made inevitable by the dogma of Judicial Supremacy handed down in Dred Scott v Sanford. Moral principles, like those of any science, are not born in full bloom. We had much to learn about moral law, and we are still learning its substance, and how to apply it.
What is the proof that Judge Bork is wrong? Moral philosophy, as it relates to law, is, more than anything else, theories of the proper relationship among people and between them and their governments. Over the space of less than 4% of our recorded history we have moved from virtual barbarians in an innovative experiment in one small corner of the earth to five major moral principles that are now sweeping the world.
The First is of limited government founded on constitutions.
The Second is the concept of unalienable rights.
The Third are those "insidious notions" of due process of law that endlessly haunt arbitrary government and won't go away.
The Fourth is the democratic foundations of our institutions.
The Fifth is the idea of legal equality of persons.
To be sure, this system of moral philosophy is not exactly universally accepted, but it surely is the "better mouse trap" for which the entire world has beaten a path to our door. For an idea of just how broadly based these concepts are, examine the Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights. These are treaties among the nations of the world to respect the rights of their own people.
Judge Bork would no doubt point out the differences in our ideas of limitations on government, of rights, of due process and to what matters democracy and equal protection applies. (We have yet to Democratize the Judiciary and apply equal protection principles between government and governed) There are such differences to be sure, but on a scale of such important things as have been accomplished, the moral philosophy he said is impossible, is already in place and his concerns are miscellaneous trivia in comparison, to be worked out over the next few decades.
Of course, there is a big variable: Government is organized power and presently it is organized to prevent these developments of moral philosophy from blossoming in our culture; but the roots have taken and it is too late to stop the process. The worst government can do is to make life miserable for a few generations.
So put it this way, Judge Bork. The moral philosophy you say is impossible, is here. Our Constitution is an important part of it; its first expression, so to speak. But it is beyond that now. Short of a catastrophe like a third world war, or a popularity of judicial tyranny I don't foresee, the near term universality of that moral philosophy is almost certain.
In fact, Judge, I predict that within the next decade, that moral philosophy will decisively defeat Judicial Supremacy resulting in a revolution of new concepts in self government that have been waiting a hundred and twenty five years to emerge.
If constitutions are to limit government and protect rights then they must be seen as legal contracts between government and governed, not as will of wisp designs of infinite flexibility, regardless of the moral philosophy upon which it is based. With this I'm sure Judge Bork would agree. But here, in principle, our agreement ends: A contract without the legal bargaining power necessary to guarantee good faith by both parties is not a contract at all, but a license to enslave.
If it is a contract, both parties to it must have equal legal rights to interpret it and to reason about its meaning. Under Judge Bork's theory of "Judicial Supremacy" a person wronged by government must convince government the wrong is unconstitutional. He can take his claim all the way to the government's highest court, but from there, there is no appeal.
We understand that much, but we should also understand that because the Court is government, and government's interest is to govern the people, not to liberate us to govern ourselves, the Court will always interpret the Constitution for its own power and against our liberty.
If constitutions are contracts, there must be a mutuality of legal rights. It is not right that government alone decides what is or isn't a constitutional right or legitimate government power, and only fools accept that "The framers so intended it."
In civil cases it says we have the right to trial by jury, but takes the essence of the right away by summary judgements and motions to dismiss in which judges alone determine whether constitutional rights exist or if there is government immunity to violate rights, and what the remedy is, if any.
In criminal cases judges out right deny and conceal the right of jury nullification and even persecute those who speak out for the jury's right to nullify bad or unconstitutional law. Instead of recognizing the jury as the single most important judicial officer there is, and swearing them to support the Constitution, they swear them to obey the judges instructions and repeatedly remind them that the court will instruct them on the law which they are obligated to apply; and parties can only argue the facts the court determines "legally relevant".
And as to accountability of the system itself, the judiciary has created its own immunity from all accountability to those it injures in violation of rights, both civil and criminal. (While Judges are not immune from criminal prosecution they so control the system as to create a defacto immunity to violate civil rights with impunity.) It is convenient to have the power to create the immunities the framers forgot about. But what does that do to the people's right to petition government for redress of grievances? It makes fools of the governed.
If the judicial object is justice, that is not the way to instill confidence in its ability to attain, or administer it.
But Judge Bork has another way to instill confidence. The judges are to pretend that what they are doing, while unjust on its face, is none the less, the "Original Understanding" of those who wrote the moral philosophy of justice into our Constitution.
And if they can't find any cover for their pretensions on the face of the document, then, as in the issues of sovereignty and immunity, they can go back to the ancient common law of England and pull doctrines of the Divine Right of Kings, right past the Revolution and through the Constitution, as if they didn't exist. That's Judicial Supremacy, by and for Government.
Thanks, but no thanks. I'll just study moral philosophy and its relationship to law, and write about it; and continue to believe it is not the exercise in futility you claim it to be.
Ten Years, Judge Bork, and Judicial Supremacy will be dead.