The Tempting of America

by Robert H. Bork

  In its most doctrinaire incarnation, this view demands that Justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions.3

  Of course the view described by Justice Brennan is arrogant, or would be, if anybody took such a position. The requirement that the judge know what the specific intention of the lawgiver was regarding the case at hand would destroy all law. Judges almost never know intentions with such particularity in applying statutes, contracts, or other judges’ opinions. If they had to have such knowledge, they could never decide. If such specific knowledge were available, judges would never disagree with one another, there would be no need to allow appeals from the trial judge’s decision, and no court would need more than one judge. Justice Brennan demolished a position no one holds, one that is not only indefensible but undefended.

  The position of the proponent of original understanding was well described by John Hart Ely, who, in accordance with current academic fashion, called that view “interpretivism”:

  What distinguishes interpretivism [original understanding] from its opposite is its insistence that the work of the political branches is to be invalidated only in accord with an inference whose starting point, whose underlying premise, is fairly discoverable in the Constitution. That the complete inference will not be found there—because the situation is not likely to have been foreseen—is generally common ground.4

  In short, all that a judge committed to original understanding requires is that the text, structure, and history of the Constitution provide him not with a conclusion but with a major premise. That major premise is a principle or stated value that the ratifiers wanted to protect against hostile legislation or executive action. The judge must then see whether that principle or value is threatened by the statute or action challenged in the case before him. The answer to that question provides his minor premise, and the conclusion follows. It does not follow without difficulty, and two judges equally devoted to the original purpose may disagree about the reach or application of the principle at stake and so arrive at different results, but that in no way distinguishes the task from the difficulties of applying any other legal writing.

  This version of original understanding certainly does not mean that judges will invariably decide cases the way the men of the ratifying conventions would if they could be resurrected to sit as courts. Indeed, the various ratifying conventions would surely have split within themselves and with one another in the application of the principles they adopted to particular fact situations. That tells us nothing other than that the ratifiers were like other legislators. Any modern congressional majority would divide over particular applications of a statute its members had just enacted. That does not destroy the value of seeking the best understanding of the principle enacted in the case either of the statute or of the Constitution.

  We must not expect too much of the search for original understanding in any legal context. The result of the search is never perfection; it is simply the best we can do; and the best we can do must be regarded as good enough—or we must abandon the enterprise of law and, most especially, that of judicial review. Many cases will be decided as the lawgivers would have decided them, and, at the very least, judges will confine themselves to the principles the lawgivers intended. The precise congruence of individual decisions with what the ratifiers intended can never be known, but it can be estimated whether, across a body of decisions, judges have in general vindicated the principle given into their hands. If they accomplish that, they have accomplished something of great value.

  Of at least equal importance, the attempt to adhere to the principles actually laid down in the historic Constitution will mean that entire ranges of problems and issues are placed off-limits for judges. Courts will say of particular controversies that no provision of the Constitution reaches the issues presented, and the controversies are therefore not for judges to resolve. The statute or executive action will be allowed to stand. That abstinence has the inestimable value of preserving democracy in those areas of life that the Founders intended to leave to the people’s self-government. In both its vindication of principle against democratic majorities and its vindication of democracy against unprincipled judicial activism, the philosophy of original understanding does better by far than any other theory of constitutional adjudication can. If that is not good enough, judicial review under the Constitution cannot be legitimate. I think it is good enough.

  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. The argument is that we of this generation cannot know what the ratifiers of 1797 meant by the Bill of Rights or what those of 1868 meant by the fourteenth amendment.*

  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.”5 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.

  If the incomprehensibility of the past were a notion to be taken seriously, the study of Aristotle, Plato, and all ancient authors would be utterly fruitless, as would all historical investigation. Those who are willing to assert the incomprehensibility of a document whoserelevant parts are from eighty to two hundred years old ought to admit that we can have no idea what the National Bank Act of 1864 means and that the Sherman Act of 1890 is already so much gibberish or is rapidly slipping into that condition. Under this view, we cannot be sure that the 1803 decision in Marbury v. Madison6 intended to legitimate judicial review under the Constitution. It is also too bad that we have no means of deciphering Washington’s Farewell Address or Lincoln’s speech at Gettysburg. There is an ancient tradition that those orations were admirable, though of course we cannot really know what an ancient tradition means either. Nonsense is nonsense however heavily weighted with academic robes.

  We have abundant sources for an understanding of particular provisions of the Constitution. Of course, some meanings will be doubtful or even lost, but much that is certain or probable remains. We have, after all, the constitutional text, records of the Philadelphia convention, records of ratifying conventions, the newspaper accounts of the day, the Federalist Papers, the Anti-Federalist Papers, the constructions put upon the Constitution by early Congresses in which men who were familiar with its framing and ratification sat, the constructions put upon the document by executive branch officials similarly familiar with the Constitution’s origins, and decisions of the early courts, as well as treatises by men who, like Joseph Story, were thoroughly familiar with the thought of the time. Judges can also seek enlightenment from the structure of the document and the government it created. This mode of reasoning goes back t
o Chief Justice John Marshall and can be extremely fruitful. Finally, we must remember that the document to be construed is a constitution. A constitution is supposed to produce workable government, as Story observed. Results that are particularly awkward, in the absence of evidence to the contrary, were probably not intended. About much of the Constitution, therefore, we know a good deal; about other parts less; and, in a few cases, very little or nothing.

  What is the judge to do on those rare occasions when he does not know and cannot discover what a constitutional provision means, when the original understanding really is lost? Early in my career as a judge I sat on a case governed, if that is the word, by a statute enacted in 1789 whose meaning was almost completely mysterious. The late Judge Henry Friendly called the law “a kind of legal Lohengrin; … no one seems to know whence it came.”7 The three-judge panel on which I sat split three ways.8 One of the judges took the position that we had to give the statute content because it was meant to have content. He proceeded to construct a fairly reasonable piece of legislation.9 I took the opposite stance, writing that “when courts go beyond the area in which there is any historical evidence, when they create the substantive rules for topics … , then law is made with no legislative guidance whatever. When that is so, it will not do to insist that the judge’s duty is to construe the statute in order not to flout the will of Congress. On these topics, we have, at the moment, no evidence what the intention of Congress was. When courts lack such evidence, to ‘construe’ is to legislate, to act in the dark, and hence to do many things that, it is virtually certain, Congress did not intend. Any correspondence between the will of Congress in 1789 and the decisions of the courts in 1984 can then be only accidental.”10

  The same reasoning applies to constitutional law. The judge who cannot make out the meaning of a provision is in exactly the same circumstance as a judge who has no Constitution to work with. There being nothing to work with, the judge should refrain from working. A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it. So it has been with the clause of the fourteenth amendment prohibiting any state from denying citizens the privileges and immunities of citizens of the United States. That clause has been a mystery since its adoption and in consequence has, quite properly, remained a dead letter. There are, of course, academics who bemoan this and urge the Court to revive privileges and immunities, apparently on the theory that every part of the Constitution must be used, even if that means judges are writing their own Constitution.

  Enough has been said, I trust, to show that we can understand the principles of the Constitution and that, on those rare occasions where we cannot, we have acceptable ways of dealing with our ignorance. The case for general incomprehension because of the passage of time is foolishness. Oddly enough, the people who relish agnosticism about the meaning of our most basic compact do not explore the consequences of their notion. They view the impossibility of knowing what the Constitution means as justification for saying that it means anything they would prefer it to mean. But they too easily glide over a difficulty fatal to their conclusion. If the meaning of the Constitution is unknowable, if, so far as we can tell, it is written in undecipherable hieroglyphics, the conclusion is not that the judge may write his own Constitution. The conclusion is that judges must stand aside and let current democratic majorities rule, because there is no law superior to theirs.

  The Claim that the Constitution Must Change as Society Changes

  The notion of a “living Constitution” seems to appeal to a great many people, possibly because the phrase makes it seem that the alternative is a “dead Constitution.” Indeed, I have no difficulty with the idea of a Constitution that lives, only with the notion that it keeps sprouting new heads in accordance with current intellectual and moral fashion.

  The philosophy of original understanding does not produce a rigid Constitution or a mechanical jurisprudence. Instead, it controls the process of growth in constitutional doctrine in ways that preserve the document’s relevance and integrity. The fact that doctrine changes unsettles some who, like myself, object to courts that go beyond constitutional principle. It should not. I tried to explain this in Oilman v. Evans,11 a case involving the relationship of the law of libel to the first amendment’s guarantee of freedom of the press. One dissent complained that I was creating new law. In a sense, I was, as all judges must. I attempted to explain the degree to which that is both desirable and inevitable and the degree to which it is impermissible. The following three paragraphs are taken, with slight adaptations, from my opinion.

  The dissent had implied that the idea of evolving constitutional doctrine should be anathema to judges who adhere to a philosophy of judicial restraint (by which I meant adherence to the original understanding). “But most doctrine is merely the judge-made super-structure that implements basic constitutional principles. There is not at issue here the question of creating new constitutional rights or principles. When there is a known principle to be explicated the evolution of doctrine is inevitable. Judges given stewardship of a constitutional provision—such as the first amendment—whose core is known but whose outer reach and contours are ill-defined, face the never-ending task of discerning the meaning of the provision from one case to the next. There would be little need for judges—and certainly no office for a philosophy of judging—if the boundaries of every constitutional provision were self-evident. They are not. It is the task of the judge in this generation to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know. The world changes in which unchanging values find their application. The fourth amendment, which prohibits unreasonable searches and seizures, was framed by men who did not foresee electronic surveillance. But that did not make it wrong for judges to apply the central value of that amendment to electronic invasions of personal privacy. The power of Congress to regulate commerce was established by men who did not foresee the scope, technologies, and intricate interdependence of today’s economy. But that did not make it wrong for judges to forbid states the power to impose burdensome regulations on the interstate movements of trailer trucks. The first amendment’s guarantee of freedom of the press was written by men who had not the remotest idea of modern forms of communication. But that does not make it wrong for a judge to find the values of the first amendment relevant to radio and television broadcasting.

  “So it is with defamation actions. We know very little of the precise intentions of the framers and ratifiers of the speech and press clauses of the first amendment. But we do know that they gave into the judges’ keeping the value of preserving free expression and, in particular, the preservation of political expression, which is commonly conceded to be the value at the core of these clauses. Perhaps the framers did not envision libel actions as a major threat to that freedom. I may grant that, for the sake of the point to be made. But if, over time, the libel action evolves so that it becomes a threat to the central meaning of the first amendment, why should not judges adapt their doctrines? A change in the legal environment provided by common law or statutory law is surely no different from a constitutional judge’s standpoint than is a change in the technological environment. It is no different to refine and evolve doctrine here, so long as one is faithful to the basic meaning of the amendment, than it is to adapt the fourth amendment to take account of electronic means of surveillance, the commerce clause to adjust to interstate motor carriage, or the first amendment to encompass the electronic media. To say that such adjustments must be left to the legislature is to say that changes in circumstances must be permitted gradually to render constitutional guarantees meaningless. It is to say that not merely the particular rules but the entire enterprise of the Supreme Court in New York Times v. Sullivan, which laid down new rules making it more difficult for public figures to maintain actions f
or defamation, was illegitimate.

  “Judges must never hesitate to apply old values to new circumstances, whether those circumstances spring from changes in technology or changes in the impact of traditional common law actions. Sullivan was an instance of the Supreme Court doing precisely that, as Brown v. Board of Education was more generally an example of the Court applying an old principle according to a new understanding of a social situation. It is not that a court may apply an old principle in new ways because its or the society’s views on race have changed, but, as already explained, because it became evident over time that the racial separation the ratifiers of the fourteenth amendment assumed was completely inconsistent with the equal protection of the laws they mandated. The important thing, the ultimate consideration, is the constitutional freedom that is given into the judge’s keeping. A judge who refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair, and reasonable meaning, fails in his judicial duty. That duty, it is worth repeating, is to ensure that the powers and freedoms the founders specified are made effective in today’s altered world. The evolution of doctrine to accomplish that end contravenes no postulate of judicial restraint.”12

  I have since heard my argument quoted to justify the creation of new constitutional principles, such as the right to abortion invented in Roe v. Wade. The argument does no such thing. No doubt there is a spectrum along which the adjustments of doctrine to take account of new social, technological, and legal developments may gradually become so great as to amount to the creation of a new principle. But that observation notes a danger; it does not justify letting the process slide out of control. Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom. Roe became possible only because Griswold had created a new right, and anyone who reads Griswold can see that it was not an adjustment of an old principle to a new reality but the creation of a new principle by tour de force or, less politely, by sleight of hand. When we say that social circumstances have changed so as to require the evolution of doctrine to maintain the vigor of an existing principle we do not mean that society’s values are perceived by the judge to have changed so that it would be good to have a new constitutional principle. The difference is between protecting that privacy guaranteed by the fourth amendment—the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”13—by requiring a warrant for government to listen electronically to what is said in the home and expanding that limited guarantee of privacy into a right not only to use contraceptives but to buy them, into a right to have an abortion, into a right, as four Justices of the Supreme Court would have it, to engage in homosexual conduct, into rights, as a number of professors would have it, to smoke marijuana and to engage in prostitution. If one cannot see where in that progression the adjustment of doctrine to protect an existing value ends and the creation of new values begins, then one should not aspire to be a judge or, for the matter of that, a law professor.