The Tempting of America

by Robert H. Bork

  If, as I think, Bickel’s early argument—for a Court that makes policy in the broad sense of adopting principles not found in the Constitution—ultimately fails, that is only because no such argument can ever succeed. Bickel’s argument is reasonable, honest, humane, at times even poetic, but in the end he could not clear the hurdle he set himself: accommodating a value-choosing Court to the theory and practice of democracy.

  John Hart Ely

  John Hart Ely, who also taught constitutional law at Yale for a time and later became dean at Stanford, in an interval at Harvard made a major attempt to provide a theoretical framework to support the Warren Court. That attempt is contained in his book Democracy and Distrust, subtitled A Theory of Judicial Review.16 Ely begins by denying that it is possible to interpret the Constitution by sticking to its clauses since a number of open-ended provisions seem to require the judge to look outside the document. This argument is essential to the remainder of his theory, for it is all he offers to justify departures from the original understanding. I have already explained, in Chapter 8, why I think this foundational argument fails. Ely moves on to attack various theories that allow the judge to apply “fundamental values” not found in the document. His critique is devastating and, for some of us, highly entertaining. I recommend it highly. But our present endeavor is to scrutinize Ely’s own version of a judicial power that is not bound to the historic meaning of the various clauses of the Constitution. It will be seen, I think, that Ely’s judge would engage in the very method of choosing fundamental values that Ely had just laid waste.

  Because he thinks the open-ended clauses show that “we have a Constitution that needs filling in,”17 and because the “fundamental values” approach is not satisfactory,18 Ely searches for an alternative source for new constitutional law that does not leave judges at large to impose their own policies. He thinks the Warren Court found such an approach and that it was foreshadowed in the infamous (he says “famous”)19 footnote four in the Carolene Products opinion written by Justice Stone for the New Deal Court. The second and third paragraphs of that footnote, it will be recalled from Chapter 2, reserved the possibility that two kinds of legislation might be subject to more exacting judicial scrutiny than most other legislation. The first class was legislation that “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation”;20 the second included cases where “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”21

  Ely first takes up what he calls “representation-reinforcing,”22 which corresponds roughly to Stone’s first class. Judges are to ensure participation in decisionmaking by minorities whose interests differ from those of the rest of us. The minorities in question are not necessarily racial or ethnic but simply interest groups who lose in the legislative process although, in Ely’s view, they should not have lost. He supposes that the protection of such groups is a proper function for judges because it is merely an extension of what the Constitution already does by way of ensuring broad participation in the processes and distributions of government. Thus, the open-ended clauses of the Constitution, those that he thinks require the judge to look beyond the content of the specific clauses, are given meaning by the surrounding document rather than by values the judge plucks from somewhere else. The function he thinks also proper because, unlike value-protecting theories of judicial review, representation-reinforcing supports the underlying premises of the American system of government.

  Ely then takes the reader through the provisions of the Constitution to make a case that most of them are really concerned with process and participation rather than with substantive values.23 His case has been controverted, and is certainly problematical, but that is not the line on which I wish to attack. He points out that the post-Civil War amendments are primarily aimed at broadening participation by, for example, forbidding abridgment of the right to vote on account of race.24 And of the eleven amendments since 1913, five extended the franchise (direct election of senators, abolition of the poll tax in federal elections, female suffrage, etc.). “Extension of the franchise to groups previously excluded has therefore been the dominant theme of our constitutional development since the Fourteenth Amendment, and it pursues both of the broad constitutional themes we have observed from the beginning: the achievement of a political process open to all on an equal basis and a consequent enforcement of the representative’s duty of equal concern and respect to minorities and majorities alike.”25

  Obviously, Ely does not wish to assign the courts the unfinished task of requiring participation by every human being in every decision that affects them. “The approach to constitutional adjudication recommended here is akin to what might be called an ‘antitrust’ as opposed to a ‘regulatory’ orientation to economic affairs—rather than dictate substantive results it intervenes only when the ‘market,’ in our case the political market, is systematically malfunctioning.”26 From there, without much argumentation, Elly proceeds to adopt all of the Warren Court results under the first amendment’s clause guaranteeing freedom of speech, without, however, explaining the links between the representation-reinforcing approach and, for example, his condemnation of the Smith Act cases which originally upheld the power of Congress to ban speech that advocated the violent overthrow of the government.27 One might as easily have argued that banning the advocacy of an end to democracy to be accomplished by minority violence tended to reinforce representation, especially since representation is not a prominent feature of Communist regimes.

  But the real problems with the representation-reinforcing approach are more basic than Ely’s use of that rationale to enact the standard liberal line. The approach need not be so used. As I have just suggested, it could be used to uphold restrictions on certain speech, which may suggest that the criterion has not a great deal of real meaning. The real problems, however, are more fundamental. The fact that the United States Constitution has provisions that require participation by certain groups and that we have a constitutional history of steadily expanding the suffrage does not give courts any warrant to go further than the Constitution already does in ensuring representation and suffrage. That expansion of participation and suffrage was accomplished politically, and the existence of a political trend cannot of itself provide the Court with a warrant to carry the trend beyond its own stopping point. How far the people decide not to go is as important as how far they do go.

  The idea of representation-reinforcement is, therefore, internally contradictory. As an approach to constitutional adjudication it tends to devour itself. It calls upon judges to deny effect—to deny representation or participation, if you will—to those who have voted to enhance the representation of some people but have equally voted to deny representation to others. Since, by definition, there is no provision of the Constitution that requires the extension to these others, the Court, acting on its own, nullifies half the result of the vote that has been taken. What is reinforced is not democratic representation so much as it is judicial power to redistribute the polity’s goods.

  Nor is the argument assisted greatly by the analogy to antitrust. It has been suggested from time to time that antitrust courts should intervene when the economic market is, in Ely’s words, “systematically malfunctioning” or, in other words, displays “market failure.” The difficulty is that, except in cases where avoidable monopoly replaces competition, the concept of market failure usually means no more than that the market is producing results the critic disapproves of on grounds that ultimately turn out to be moral or aesthetic. The market failure concept has not proved to be very useful in antitrust. When an economist found an industry structure he did not like, he immediately pronounced market failure. General Motors once had about half of the American automobile market, and the literature was rife with market failure analyses by people unwilling to entertai
n the notion that GM had that share because more customers wanted its cars than other makes. Then the Japanese arrived, and the market’s failure disappeared. It had never been anywhere but in the eye of the beholder to begin with.

  So it is with political “market failure.” How does one know that a political market, which appears to be democratic, is nevertheless “systematically malfunctioning”? I suspect one knows that because one dislikes the way the vote turned out. Ely assures us, however, that that is not what he means:

  Malfunction occurs when the process is undeserving of trust, when (1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system.28

  The first of these forms of malfunction poses no special challenge to constitutional theory since it is the office of the first amendment’s speech and press clauses to prevent anyone from closing the processes of politics and change. One may, of course, disagree with the particulars of Ely’s version of the first amendment, as with some other matters in this connection, but that is another argument.

  Ely’s second form of malfunction—political market failure due to prejudice—is the concept that gets him into trouble. The concept is an elaboration of Justice Stone’s suggestion that ”discrete and insular minorities” may require special protection by the Court. The notion is an odd one, because certain minorities were intended to be protected from prejudiced legislation by those who ratified the Constitution and its various amendments. Ely and, one supposes, Stone suggest that still other minorities may be identified by the Court as not sufficiently protected by democratic processes. This is a function for judges that certainly does not come from the historic Constitution. It is an extrapolation of the various requirements of participation that Ely sees in the actual Constitution. It is, therefore, a line of reasoning remarkably similar to that by which Justice Douglas created the general “right of privacy” in Griswold v. Connecticut: There are a great many instances in the Constitution of what may be construed as protections for participation; these have emanations that form penumbras; the result is a general right of participation; people who keep losing in the legislative process because of “prejudice” that makes them “discrete and insular minorities” are subject to “systematic malfunctioning” and must be given special protection by the courts.

  The Griswold-like nature of this creation of a new right is enough to show the argument’s vulnerability. Once more, the ratifiers’ creation of one set of rights is simultaneously a failure or refusal to create more. There is no basis for extrapolating from the rights they did create to produce rights they did not. One might as well say that the very large set of no-rights adds up to a general conclusion of no constitutional rights, thus erasing the Bill of Rights, as to do what Douglas and Ely have done.

  But that is not the objection to Ely’s theory I want to stress here. The minority he would have the courts protect is the one that “keeps finding itself on the wrong end of the legislature’s classifications, for reasons that in some sense are discreditable.”29 To ask whether there exists unjustified hostility toward a group that has lost in the legislative process would be an invitation for courts to second-guess the legislature, so Ely asks simply whether there exists widespread hostility and then whether the group in question is likely to be perceived by legislators as different from themselves. This is what Ely calls the “we—they” contour. And it leads him to some extremely liberal versions of what the Constitution commands, striking down laws that disadvantage aliens,30 homosexuals,31 and all laws classifying by gender if the laws were enacted prior to 1920, when the nineteenth amendment provided female suffrage.32 Affirmative action or reverse discrimination is constitutional because it involves a majority favoring people unlike themselves.33 Capital punishment is a violation of the Constitution because people like “us” are not executed very often.34 Many of Ely’s prescriptions simply extend the Constitution in ways that were not intended by the ratifiers. Capital punishment, however, is recognized as an available penalty several times in the text of the Constitution. His “we—they” argument is thus capable of directly overriding the basic law—and why not? The ratifying conventions, to say nothing of the drafting convention at Philadelphia, were composed of men who were not of a class likely to be executed often.

  The odd thing is this: Ely states that, of course, laws punishing burglars are constitutional, although, some opinion to the contrary notwithstanding, legislatures have few burglars in them. Ely’s reason is that it is legitimate to discourage people from breaking into our homes. It certainly is, but that remark requires a theory of the legitimate ends of law that Ely does not supply. Why may a legislature not decide that aliens should not vote or be government employees on the ground that they are not part of the political community? Why may a legislature not decide that homosexuals should not teach primary school children or be allowed to adopt children on the ground that in some significant number of cases proselytizing may occur and the society wishes to discourage that out of moral disapproval? Ely’s theory, which purports to take judges out of the business of making policy decisions, in fact plunges them into such decisions by requiring that they distinguish between cases in which groups lost in the legislative process for good reason (burglars) and those in which they lost for discreditable reasons (aliens, the poor, homosexuals, etc.). I fear that this is another point at which his system collapses. The results it produces turn out to be just another list of results on the liberal agenda which the Court must enact because legislatures won’t.

  In Ely’s case, as in Bickel’s, criticism confined to the structure of a theory necessarily overlooks many enlightening arguments and observations made in the course of the book.

  Laurence Tribe

  Laurence Tribe’s constitutional theory is difficult to describe, for it is protean and takes whatever form is necessary at the moment to reach a desired result. This characteristic, noted by many other commentators, would ordinarily disqualify him for serious consideration as a constitutional theorist. But Tribe’s extraordinarily prolific writings and the congeniality of his views to so many in the academic world and in the press have made him a force to be reckoned with in the world of constitutional adjudication. For that reason alone, he must be discussed.

  Tribe’s descriptions of his approach to the Constitution are quite misleading. In the preface to the second edition of his treatise American Constitutional Law, published in 1988, he states that his constitutional arguments are not a “cover for whatever liberal political views [he] might hold” but provide “ammunition to all combatants in the constitutional controversies of the day.”35 He writes that he has gained “a deeper appreciation of the very great difference between reading the Constitution we have and writing the Constitution some of us might wish to have.”36 Further, “My commitment to constitutional analysis is, in truth, neither particularly instrumental nor reflective of any specific philosophy.”37 These claims are shown by the rest of his book to be patently untrue. What makes Tribe interesting, as well as illustrative of the state of most constitutional scholarship today, is the fact that his writings are almost entirely an attempt to convert the Constitution to his political views. As Judge Richard Posner has said, Tribe’s view is that “the Constitution is what we want it to be … and that what we should want it to be is the charter of a radically egalitarian society.”38

  Tribe states that he is not particularly concerned about questions of judicial capacity or the legitimacy of judicial rule.39 These are the questions that lie at the center of all serious theories of the Constitution, and Tribe gives an odd reason for passing them by. He says that other actors in the governmental system must also empl
oy their own understandings of the Constitution.40 The answer is inadequate. Legislators and executives are not final; a court purporting to apply the Constitution is. The supremacy of unelected judges’ decisions brings questions of judicial capacity and legitimacy to the center of constitutional law.

  Tribe comes back to the subject somewhat later in his treatise, but only to treat it lightly again. He writes that his analysis will be “brief indeed; the subject is beyond the scope of an essentially doctrinal treatise.”41 That would be a sound response if the book were a doctrinal treatise, if Tribe had written merely a description of what courts have in fact decided. But that is not even remotely the purpose of his treatise. He had said, in the preface to the first edition of his treatise, reprinted in the second, that he is laying “a coherent foundation for an active, continuing, and openly avowed effort to construct a more just constitutional order.”42 No one can do that without saying what doctrine should be, and certainly no one can make the radical suggestions for vastly increased judicial power that Tribe does without addressing the capacity of judges and the limits to the legitimacy of judicial rule. His book is “doctrinal” only in the sense that he advocates doctrines, but those doctrines have no basis in the intentions of those who wrote and ratified the Constitution, no basis in the structure or history of the document, and, often enough, no basis in anything the Supreme Court has decided in the past. An effort that departs so drastically from all the usual criteria of constitutional adjudication requires, as its first and central element, a theory of what things judges may legitimately do.