The Tempting of America

by Robert H. Bork

  In one sense, the liberal activists of today are right: the philosophy of original understanding does have political consequences, though not political content or intention, and my presence on the Court would have tended to make outcomes more conservative. But that would not have been because I imposed my politics. Rather, it would have been because when the Court of the past fifty years departed from the historic Constitution it consistently did so in order to legislate liberal results. A slowing or cessation of that tendency, a return to political neutrality, would mean fewer liberal results legislated in the name of the Constitution. It would also mean that no conservative results would be legislated in the name of the Constitution. Only those who think that the Court is properly a political body can object to that.

  Perhaps those liberals who want a political Court are correct in their confidence that in the modern era judges will usually be more liberal than the electorate. If so, they are right, in terms of their immediate self-interest, to oppose original understanding and judicial nominees who insist upon it. That stance is, however, profoundly antidemocratic, and it is dangerous to the long-term health of the American Republic. A few years ago, I summed up my own view this way: “In a constitutional democracy the moral content of law must be given by the morality of the framer or the legislator, never by the morality of the judge. The sole task of the latter—and it is a task quite large enough for anyone’s wisdom, skill, and virtue—is to translate the framer’s or the legislator’s morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist.”23

  It is, as well, a morality important to American liberty. The Constitution assumes the liberties of self-government, not merely those liberties that consist in being free of government. The freedom to govern is enormously important to the individuals who make up a community, for it is freedom to control the environment—physical, aesthetic, and moral—in which they and their families live. When a court rewrites the Constitution by creating a new constitutional right or, without warrant, unduly expands an existing right, it does not create additional freedom but merely shifts freedom from a larger group to a smaller one. There is no intrinsic merit in that.

  “The Impossibility of a Clause-Bound Interpretivism”

  The title of this subsection is a chapter heading in Democracy and Distrust24 by the former dean of the Stanford law school, John Hart Ely. He argues that interpretation of the Constitution cannot be confined to discerning the meaning of its various clauses. “Interpretivism” is the usual academic word for the philosophy of original understanding. It was Ely’s concern to escape that philosophy in order to offer his own version of the Constitution, which will be examined in Chapter 9. He begins his escape by conceding the philosophy’s strength in a passage I have already quoted: “Interpretivism [or original understanding] does seem to retain the substantial virtue of fitting better our ordinary notion of how law works: if your job is to enforce the Constitution then the Constitution is what you should be enforcing, not whatever may happen to strike you as a good idea at the time.”25

  Indeed, Ely puts the matter so strongly that he sets himself a very considerable obstacle to overcome. “Thus stated,” he writes, “the conclusion possesses the unassailability of a truism, and if acceptance of that were all it took to make someone an interpretivist, no sane person could be anything else.” Since one must accept that, what the rest of the sentence suggests about the vast majority of academic theorists is best not dwelt upon. But, Ely points out, “interpretivism involves a further claim, that ‘enforcing the Constitution’ necessarily means proceeding from premises that are explicit or clearly implicit in the document itself.” This proposition, which seems to me clearly correct, seems to Ely to be the problem.

  The suggestion … is usually that the various provisions of the Constitution be approached essentially as self-contained units and interpreted on the basis of their language, with whatever interpretive help the legislative history can provide, without significant injection of content from outside the provision…. [T]his standard form of interpretivism runs into trouble—trouble precisely on its own terms, and so serious as to be dispositive. For the constitutional document itself, the interpretivist’s Bible, contains several provisions whose invitation to look beyond their four corners—whose invitation, if you will, to become at least to that extent a noninterpretivist—cannot be construed away.26

  This is the only kind of claim that judges are not bound by the original understanding of the Constitution’s provisions that makes any possible sense. It is not a claim that judges may depart from the document because they are better moral philosophers than are legislators or that they may create new constitutional rights because the Constitution is not law. It is a claim that the law of the Constitution commands judges to find rights that are not specified in the Constitution. If true, the Founders envisaged a much more dominant role for the judiciary than has commonly been supposed. For that reason, we must examine Ely’s evidence with some care. The provisions he relies on are the fourteenth and ninth amendments.

  The fourteenth amendment was adopted shortly after the Civil War, and all commentators are agreed that its primary purpose was the protection of the recently freed slaves. As we have seen, of the amendment’s three clauses, two have been pressed into the service of judicial imperialism—the due process and equal protection clauses—while the third, the privileges and immunities clause, has remained the cadaver that it was left by the Slaughter-House Cases. It is this corpse that Ely proposes to resurrect.

  The due process clause will not do as a warrant for the creation of new constitutional rights because, as Ely notes, it is simply a requirement that government not do certain things to people without fair procedures, not a statement of what things may not be done. The fifth amendment’s due process clause, which applied only against the federal government, was later copied in the fourteenth amendment, which applied to the states. “There is general agreement that the earlier clause had been understood at the time of its inclusion to refer only to lawful procedures. What recorded comment there was at the time of replication in the Fourteenth Amendment is devoid of any reference that gives the provision more than a procedural connotation.”27 That is true, and it is more than enough to condemn the hundreds of cases, stretching from Dred Scott to today, in which the courts have given the due process clause substantive content in order to read their own notions of policy into the Constitution.

  Ely’s attempt to make the privileges and immunities clause do the work that has been improperly assigned to the due process clause is, however, unsuccessful. He points out that “there is not a bit of legislative history that supports the view that the Privileges or Immunities Clause was intended to be meaningless.”28 That is hardly surprising. One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause was intended to mean. But Ely leaps from that fact to a stunning delegation to courts to say what it means:

  Thus the most plausible interpretation of the Privileges or Immunities Clause is, as it must be, the one suggested by its language—that it was a delegation to future constitutional decision-makers to protect certain rights that the document neither lists, at least not exhaustively, nor even in any specific way gives directions for finding.29

  Since we can hardly be talking about ratifiers of future amendments, “future constitutional decision-makers” must be legislators, executives, or judges. If the first two groups are intended, the clause is precatory only. Before legislating, signing legislation, or taking action, legislators and executives are to think about what they would regard as privileges and immunities (meaning “liberties”) that ought not to be infringed. But that is not Ely’s meaning, since he is describing why judges must go beyond the particular provisions of the Constituti
on in finding rights. And here the argument falters. It is true that Representative Bingham and Senator Howard, who introduced the fourteenth amendment in their respective Houses of Congress, referred to Corfield v. Coryell, a singularly confused opinion in 1823 by a single Justice of the Supreme Court setting out his ideas of what the original privileges and immunities clause of article IV of the Constitution meant.30 Most people have always thought that the article IV clause simply prevented a state from discriminating against out-of-staters in favor of their own citizens, but Corfield lists rights already secured by the Constitution against adverse federal action and goes on to suggest a number of others.

  Bingham and Howard meant these additional rights. That the ratifiers did is far less clear. But even the full list of rights set out by one Justice in Corfield is something far different from a judicial power to create unmentioned rights by an unspecified method. Certainly there is no evidence that the ratifying conventions intended any such power in judges, and it is their intent, not the drafters’, that counts. Nor is it easy to imagine that Northern states, victorious in a Civil War that led to the fourteenth amendment, should have decided to turn over to federal courts not only the protection of the rights of freed slaves but an unlimited power to frustrate the will of the Northern states themselves. The only significant exercise of judicial review in the past century had been Dred Scott,31 a decision hated in the North and one hardly likely to encourage the notion that courts should be given carte blanche to set aside legislative acts. Ely supposes that the ratifiers of the fourteenth amendment intended two constitutional revolutions rather than one, applying the restrictions of the United States Constitution to the states, which had not been done prior to the Civil War, and also subordinating the legislatures of all the states, Northern as well as Southern, to the uncontrolled discretion of judges. We know the ratifiers intended the former revolution; there is not a shred of evidence that they contemplated the latter. Had any such radical departure from the American method of governance been intended, had courts been intended to supplant legislatures, there would be more than a shred of evidence to that effect. That proposal would have provoked an enormous debate and public discussion. Whatever the intended meaning of the privileges and immunities clause may have been, it cannot be taken as commanding judges to abandon clause-bound interpretation.

  Ely performs a similar transformation of the equal protection clause. The reason he gives is peculiar. The clause deals with discriminations among classes of persons, but that is no limitation because

  [ A]ny case, indeed any challenge, can be put in an equal protection framework by competent counsel. If you wish to challenge the fact that you’re not getting good X (or are getting deprivation Y) it is extremely probable that you will be able to identify someone who is getting good X (or is not getting deprivation Y)…. [Thus] the limitation to cases involving differential treatment turns out to be no significant limitation at all, [and] the Equal Protection Clause has to amount to what I claimed the Privileges or Immunities Clause amounts to, a rather sweeping mandate to judge of the validity of governmental choices.32

  That conclusion follows only if the reasonableness of all classifications under the equal protection clause is evaluated as if those classifications were ones based on race or ethnicity. If the latter meaning of the clause is accepted, we get a rule flatly prohibiting discrimination against blacks, whites, Americans of Polish descent, and so forth. We do not get Ely’s “rather sweeping mandate,” and we do not get cases applying the clause with the same severity to legislative restrictions on aliens, illegitimate children, or young males not allowed to drink at as early an age as young females.33 Once matters of race and ethnicity are passed, the clause is indeed sweeping and, if reasonableness is denied to the same degree, allows courts the ultimate governance of society. That is particularly true because in Boiling v. Sharpe the Supreme Court read the equal protection concept into the due process clause of the fifth amendment so that it applies to federal as well as state legislation.34

  The objection to the mandate Ely finds are the same as the objection to the judicial power he finds in the privileges and immunities clause. We know that the occasion for the fourteenth amendment was the desire to protect blacks from discriminatory laws and law enforcement. We know there is no evidence that the ratifiers imaginedthey were handing ultimate governance over to courts. We know that a constitutional revolution of that magnitude would have provoked widespread and heated (to put it mildly) discussion but that there is no record of any such discussion. The rather sweeping mandate must be judged counterfeit.

  The last source Ely cites for a direction to judges to look outside the provisions of the Constitution for new rights is the ninth amendment. The ninth was in the original Bill of Rights and states simply, if enigmatically, that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”35 The eight preceding amendments, of course, specify rights retained by the people, and the immediately following and last amendment, the tenth, states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”36

  There is almost no history that would indicate what the ninth amendment was intended to accomplish. But nothing about it suggests that it is a warrant for judges to create constitutional rights not mentioned in the Constitution. Ely, along with a great many other people, thinks that it is precisely such a warrant. Nothing could be clearer, however, than that, whatever purpose the ninth amendment was intended to serve, the creation of a mandate to invent constitutional rights was not one of them. The language of the amendment itself contradicts that notion. It states that the enumeration of some rights shall not be construed to deny or disparage others retained by the people. Surely, if a mandate to judges had been intended, matters could have been put more clearly. James Madison, who wrote the amendments, and who wrote with absolute clarity elsewhere, had he meant to put a freehand power concerning rights in the hands of judges, could easily have drafted an amendment that said something like “The courts shall determine what rights, in addition to those enumerated here, are retained by the people,” or “The courts shall create new rights as required by the principles of the republican form of government,” or “The American people, believing in a law of nature and a law of nature’s God, delegate to their courts the task of determining what rights, other than those enumerated here, are retained by the people.” Madison wrote none of those things, and the conventions ratified none of them. If the Founders envisioned such a role for the courts, they were remarkably adroit in avoiding saying so.

  Once again, the problem is that a people who believed that their liberties depended upon the system of representation they created spent their time debating that and spent very little time discussing the role of the courts. Had so momentous a role for judges been contemplated, it would have been the center of discussion. It would not, as is the fact, have gone wholly unmentioned. In all of the controversies about the Court’s assumption of powers, from Jefferson’s complaints about Marshall to the uproar over Dred Scott, nobody, including the Justices of the Court, ever thought to say that such powers were given by the ninth amendment. Indeed, Ely, in discussing elsewhere Hamilton’s view that the judiciary was “the least dangerous” branch of government, writes: “This must have made a good bit of sense at the outset of our nation: in the absence of precedent, the lack of independent enforcement machinery and the various constitutional checks on the judiciary must have seemed sufficient to ensure that it would play a quite insignificant role.”37 Now the Founders could not have contemplated both that the judiciary would play a quite insignificant role and, simultaneously, that they had delegated to judges the power to create new constitutional rights not mentioned in the Constitution. As before, the claim that the Founders intended judges to make up rights not specified in the Constitution itself is obviously inconsiste
nt with the historical record.

  What, then, can the ninth amendment be taken to mean? If it meant what Ely and others have suggested, it would have stated that the enumeration of certain rights “shall not be construed to mean that judges may not find that other rights exist and are protected by this Constitution.” The words “retained by the people” at the end do not quite fit the suggested meaning. That sounds as if there are known rights that the people currently have. “Retained by the people” how? One suggestion, advanced by Russell Caplan and supported by some historical evidence, is that the people retained certain rights because they were guaranteed by the various state constitutions, statutes, and common law.38 Thus, the enumeration of certain rights in the federal Constitution was not to be taken to mean that the rights promised by the state constitutions and laws were to be denied or disparaged.