The Tempting of America

by Robert H. Bork

  This meaning is not only grammatically correct, it also fits the placement of the ninth amendment just before the tenth and after the eight substantive guarantees of rights. The tenth amendment is clearly a guarantee of federalism. It confirms that federal powers were intended to be limited and that the powers not lodged in the national government remained with the states, if the states had such powers under their own constitutions, and, if not, the powers were still held by the people. The ninth amendment appears to serve a parallel function by guaranteeing that the rights of the people specified already in the state constitutions were not cast in doubt by the fact that only a limited set of rights was guaranteed by the federal charter. Both the ninth and tenth amendments appear to be protections of the states and the people against the national government. The anti-Federalists feared the power of the United States, and Madison had promised them amendments to allay their fears.

  This is also supported by Madison’s explanation of the ninth amendment to Congress:

  It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in the enumeration; and it might follow by implication, that those rights that were not placed in that enumeration, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.39

  Though Ely sees some confusion in the explanation, it seems to me a perfectly straightforward statement that the ninth amendment guaranteed that rights already held by the people under their state charters would remain with the people and that the enumeration of rights in the federal charter did not alter that arrangement.

  When all else is said, however, it is inconceivable that men who viewed the judiciary as a relatively insignificant branch could have devised, without even discussing the matter, a system, known nowhere else on earth, under which judges were given uncontrolled power to override the decisions of the democratic branches by finding authority outside the written Constitution. Neither the Revolution nor the Civil War was fought to establish that form of autocracy. It must be concluded that clause-bound interpretation of the Constitution is possible.

  No doubt other objections to the idea of the original understanding have been raised, but those just discussed seem the most commonly voiced, which means, I would suppose, that they are the objections regarded as most persuasive. An examination of the objections, however, discloses that they do not succeed, so that the original understanding remains a viable approach to the Constitution. It will next be shown that other approaches are not viable.

  * The best proof of the point I have ever heard occurred when I quoted a professor, who did not believe original understanding could be discerned, as not believing that the Constitution is law. He at once protested that he did. I said, “But you wrote that it was not.” He responded, “I may have written that but I didn’t mean that. Which proves we cannot know what was intended by words.” The argument, being circular, was irrefutable, and I was defeated.

  9

  The Theorists of Liberal Constitutional Revisionism

  It is my purpose in this chapter and the next to examine some of the most prominent theories of constitutional law now regnant in the law schools. The writers to be examined base their theories upon a rejection of the original meaning of the document and would substitute various other methods for guiding constitutional adjudication. Not all of them would agree that they have rejected the original understanding, but I think it can be shown that they have generalized that understanding so greatly, stated it at such a high level of abstraction, that virtually no one who voted to ratify the document would recognize the principles of the theorists as his own. Each chapter closes with an analysis of Supreme Court Justices’ essays into explicit constitutional theorizing: here Justice William J. Brennan, Jr.; in Chapter 10, John Marshall Harlan, and then a debate among the Justices in a recent decision.

  It is to be hoped that no professor will be offended at being left out, but the theorists are so many that it is possible to look at only a representative sample.

  Alexander M. Bickel

  Pride of place belongs to a man who was my very close friend and my guide in beginning constitutional studies when I undertook to teach the subject at Yale. The reader may be surprised that I should be critical of Alexander Bickel’s theory of the Constitution since I have quoted him repeatedly to this point. The truth is that Bickel was a great man of the law, had insights that were invariably stimulating, and taught me more than anyone else about this subject. He wrote his theory, in The Least Dangerous Branch,1 when he was a very young professor and, I think, came to be quite dubious about it in later years, though perhaps not for the reasons I became dubious about it. One thing should be set straight at the outset. I once criticized Bickel’s theory in print and another judge referred, a trifle caustically, to what I had said of my friend. That reaction is wholly inappropriate. Bickel, who died at the age of fifty, was the last man who would have wanted his thought to stand immune from discussion as a sort of fossilized monument to his memory. He once said to me that he viewed all writing as an experiment. So it is, and the success of every experiment must be judged. I shall deal with him here as I did in life: with the utmost respect but with no disagreement hidden.

  Indeed, it is hard to imagine not discussing Bickel here. He was one of the first law professors, if not the first, to set out a complete justification for and theory of nonoriginalist judging. His arguments, moreover, framed the constitutional debate on both sides. As Gary McDowell has said, “Bickel’s work was at once seminal and paradoxical. On the one hand, Bickel sought to establish the legitimate grounds for a kind of judicial activism; on the other, he offered praise for a kind of judicial restraint.”2 His activist arguments seem to me the best that have ever been made for the view that the courts may proceed in constitutional adjudication without being bound by the original meaning of the document.

  Bickel began by seeking a justification for judicial review. “The root difficulty,” he said, “is that judicial review is a counter-majoritarian force in our system.”3 He therefore sought a justification which would legitimate this ”deviant institution”4 by bringing it into an acceptable accommodation with democratic rule. That is required because “democracies do live by the idea, central to the process of gaining the consent of the governed, that the majority has the ultimate power to displace the decision-makers and to reject any part of their policy. With that idea, judicial review must achieve some measure of consonance.”5

  The search must be for a function which might (indeed, must) involve the making of policy, yet which differs from the legislative and executive functions; which is peculiarly suited to the capabilities of the courts; which will not likely be performed elsewhere if the courts do not assume it; which can be so exercised as to be acceptable in a society that generally shares Judge [Learned] Hand’s satisfaction in a “sense of common venture;” which will be effective when needed; and whose discharge by the courts will not lower the quality of the other departments’ performance by denuding them of the dignity and burden of their own responsibility.6

  One sees in that passage both the policymaking role Bickel would assign the Court and the requirement that the role be modest and played with caution. But why should the Court have any policymaking function? One answer might be that such a function is inevitable because the application of even an agreed principle will often involve the making of judgments that could be made the other way. That would be my answer, but it assumes only interstitial policymaking in the elaboration of principle and denies the Court the authority to choose the principle itself. That is not what Bickel had in mind. He spoke for the legitimacy of a Court that created the principles to be applied.

  His justification for judicial policymaking was that courts have capacities that legislatures do not have and that these are valuable to society. Society needs both principle and expediency.
“No society, certainly not a large and heterogeneous one, can fail in time to explode if it is deprived of the arts of compromise, if it knows no ways of muddling through. No good society can be unprincipled; and no viable society can be principle-ridden.”7 Bickel thought of elected officials as the spokesmen for the expedient, short-run solution, while judges had a greater institutional capacity to deal with principles of long-run importance. “[C]ourts have certain capacities for dealing with matters of principle that legislatures and executives do not possess. Judges have, or should have, the leisure, the training, and the insulation to follow the ways of the scholar in pursuing the ends of government.”8

  Bickel told us what it meant to follow the ways of the scholar:

  The function of the Justices … is to immerse themselves in the tradition of our society and of kindred societies that have gone before, in history and in the sediment of history which is law, and … in the thought and the vision of the philosophers and the poets. The Justices will then be fit to extract “fundamental presuppositions” from their deepest selves, but in fact from the evolving morality of our tradition.9

  “Fundamental presuppositions are not merely to be alluded to … or even merely intoned, but are to be traced and evaluated from the roots up, their validity in changing material and other conditions convincingly demonstrated, and their application to particular facts carried to the last decimal.”10

  Now this is fairly antidemocratic stuff. Bickel tried to accommodate the role he assigned the Court to the practice and theory of democracy, as just seen, by arguing that the Court served the function of injecting principle into government in a way that other governmental bodies were less equipped to do. He offered two other mitigating factors. The first was that the Court was not to get too far ahead of the society: The “Court should declare as law only such principles as will—in time, but in a rather immediate foreseeable future—gain general assent.”11 The other factor was Bickel’s argument that the Court’s commands are not really final.

  The Supreme Court’s law … could not in our system prevail—not merely in the very long run, but within the decade—if it ran counter to deeply felt popular needs or convictions, or even if it was opposed by a determined and substantial minority and received with indifference by the rest of the country. This, in the end, is how and why judicial review is consistent with the theory and practice of political democracy. This is why the Supreme Court is a court of last resort presumptively only.12

  Bickel was led to those reflections by the fact that the Court’s decision in Brown v. Board of Education had, he thought, come close to being undone by passionate resistance and was saved only by strong public support in other quarters.

  This is the structure of Bickel’s argument but by no means the whole of his book. If the argument now looks inadequate, as I think it does, it should be said that the book as a whole is elegant, thought-provoking, and, in a number of ways, profound.

  The trouble begins with Bickel’s assignment to judges of the injection of long-term principles, principles other than those found in the Constitution itself, into our governmental processes. Federal judges will sigh wistfully as they read his description of their situation. Courts are immensely and increasingly burdened with case loads. They have no leisure. They are manned, moreover, by lawyers, usually very able lawyers, but not philosophers. Few have the training to do what Bickel asked, and none have the leisure for philosophic reflection or for immersion in tradition, history, and the thought and vision of philosophers and poets. If all of that could be done by men and women who had the characteristics required, it is not clear that the “fundamental presuppositions” that rose from the Justices’ deepest selves would in fact represent the “evolving morality of our tradition.”13 The prescription leaves the Justices quite unmoored. A man or woman who read everything Bickel suggests could easily vote either way on such questions as whether the Court should create constitutional rights to abortion, to engage in homosexual conduct, to receive welfare payments, to take addictive drugs in the home, and on and on through the list of things that various practitioners of moral-philosophy-cum-law have suggested. Our most divisive political battles reflect the war in our culture about what should be the evolving morality of our tradition. There seems to be no reason why citizens rather than Justices should not extract fundamental presuppositions from their deepest selves.

  The requirement that the validity of these fundamental presuppositions be demonstrated convincingly in other conditions and applied to the facts to the last decimal place sounds reassuring. But no one can point to any opinion by any court in which that has been done. One reason may be that such an opinion would require two or three volumes, if not a five-foot shelf.

  But if we assume that the task is actually doable and that there are enough judges to staff the federal judiciary, or at least the Supreme Court, who can do it, further difficulties arise. The Constitution itself states fundamental presuppositions. These may not be transgressed by any legislature or executive. But the Constitution leaves all else to the legislative arena. It is not evident why the Justices should say that that is not good enough because legislatures are not as good as the Court in taking long-term principle into account. Legislative decisions involve a mix of, or a tradeoff between, principle and expediency. The Constitution holds that in decisions left to the democratic processes, the tradeoff we are entitled to is the one the legislature provides. Courts have no apparent mandate to impose a different tradeoff merely because they would arrive at a mix that weighed principle more heavily. There is no objectively correct balance between principle and expediency, so it is meaningless to say that legislatures inherently fall short of the right balance.

  Bickel attempted to answer the question of how the judge could know that his principles were better than those of the democratic majority. He made an analogy to aesthetic issues and quoted Dwight MacDonald on the question of what standards could be applied to prove that William Faulkner was an important artist and that J. P. Marquand was not.14 MacDonald said that could not be proved but it could be demonstrated by “an appeal—by reason, analysis, illustration, and rhetoric—to cultural values which critic and reader have in common.”15 That is all very well, but what is to be done if citizens persist in voting that Marquand is the better novelist? MacDonald could deplore that outcome and appeal once more to common values, but why should MacDonald be made into a court that can order Marquand removed from the shelves and replaced by Faulkner? The definition of democracy is that, after hearing argument, citizens can vote their tastes and need not bow to elite opinion. If the Court’s principle’s superiority can be demonstrated by an appeal to common cultural values, there is no need for the coercive power of the Court’s judgment. The Justices should go instead into the political arena and, by the strength of their demonstration, ensure that the better principle is enacted. Bickel himself later recognized that he had once exemplified the danger that elite opinion would prevail by fiat rather than persuasion of MacDonald’s sort, for he wanted the Court to declare the death penalty unconstitutional. If he had been right that the abolition of capital punishment is the better view, according to our common cultural values, then, given the intensity of the advocates for that view in the political arena, there should by now be no death penalty statutes.

  The modesty commanded by the prescription that the Court is to anticipate the evolution of the morality of our tradition, but not by much, does not solve Bickel’s problem. If it is “our” tradition that is evolving, it is not clear why the Court should get ahead of the evolution. The Court is not us, and it is sure to make mistakes about where we are going. Although it would be good if the Court enunciated only principles that will gain acceptance in the near future, there is no particular reason to think that it will so confine itself, or be prescient enough to do so if it wished.

  The contention that the Court is not final and hence is not undemocratic, or at least not unacceptably so, must also be deemed to fail. It is tr
ue that an outraged citizenry, if it persists long enough, can overturn a Supreme Court decision, probably through the selection of new Justices as the old ones depart. That is what happened to the conservative pre—New Deal Court. But that is a rare instance, and it is clear that there would be little democratic control over a Court that followed Bickel’s suggestions. Given the number of decisions to be scrutinized, the people would either have to focus upon perhaps one every five or ten years in order to be effective or else exist in a state of permanent apoplexy. As we know from history, moreover, it may take decades to accomplish the overturning of a single decision or line of decisions. Even then, an overturning cannot be forced if a substantial and influential minority supports the result. Dred Scott, Lochner, and Roe all lasted a long time, or long enough at least to work considerable damage, and so have many other decisions that many people intensely disliked and that were not based on anything in the Constitution. The argument that a Supreme Court decision is not really final, and so not at odds with the theory and practice of democracy, assumes, as one of my clerks put it, that in the long run none of us will be dead. John Maynard Keynes held the contrary view, which, unhappily, is more accurate.

  It would be unfair to leave the impression that The Least Dangerous Branch was Alexander Bickel’s last or even his major work in constitutional law. It was merely an early and provocative attempt to justify a Court that invalidates the acts of elected representatives without appealing to the historic Constitution. Even as I have changed my mind on a number of topics over the years, so did he. We experimented separately and together with a great many ideas about law. Bickel, being a man of intellectual integrity, changed his mind when the argument or the evidence went against him. Later in his all-too-brief career he came to doubt the capacity of the Supreme Court to manage principles of the sort his early work envisioned. When we taught together and I insisted upon adherence to the original understanding, he fell back upon the Court’s tradition as an adequate and only available guide. Still later, contemplating the wreckage wrought by the Warren Court, he said to me, “All we ever had was a tradition, and now that is shattered.” I wish we could teach together again. It would be fascinating to know what his final thoughts would have been.