The Tempting of America

by Robert H. Bork

  The state, he said, could forbid these altogether, but marital intimacy was part of an institution which the state must allow and has always protected. Though the state had determined that the use of contraceptives is as evil as any extramarital sexual immorality, calling a husband and wife to account before a criminal tribunal is a very different thing from punishing those who practice intimacies the law has always forbidden and which have no claim to social protection. Harlan did not dispute the state’s right to make its moral judgment, but it had not justified the “obnoxiously intrusive means it has chosen to effectuate that policy.”39 Indeed, the very fact that Connecticut had never enforced its law suggested it did not consider the policy very important or the means chosen to implement it appropriate or necessary. But what was conclusive was that no other state or nation, though many shared Connecticut’s moral policy, had imposed a criminal prohibition on the use of contraceptives.

  These are all very appealing sentiments, but as constitutional analysis the opinion will not wash. In a way, the case was too easy. Connecticut did not think its policy important and certainly did not think it appropriate to use criminal sanctions, or any sanctions, against married couples or anyone else. There was no serious moral policy whatever behind the law. And, admittedly, it was a lunatic law, which is precisely why nobody tried to enforce it. It was easy, therefore, to strike it down. The only things at stake were, on the one hand, the enlistment of the Court on one side of a cultural disagreement and, on the other, the maintenance of constitutional integrity.

  Harlan’s arguments were entirely legislative. The stark fact is that the Constitution has nothing whatever to do with issues of sexual morality. Those questions are left entirely to the morality of the people of the various states. Once, after I had given a talk on the Constitution at a law school, a student approached and asked whether I thought the Constitution prevented a state from abolishing marriage. I said no, the Constitution assumed that the American people were not about to engage in despotic insanities and did not bother to protect against every imaginable instance of them. He replied that he could not accept a constitutional theory that did not prevent the criminalization of marriage. It would have been proper to respond that in any society that had reached such a degenerate state of totalitarianism, one which the Cambodian Khmer Rouge would find admirable, it would hardly matter what constitutional theory one held; the Constitution would long since have been swept aside and the Justices consigned to reeducation camps, if not worse. The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.40

  We are not framing a constitutional philosophy for a society imagined in a particularly horrible piece of science fiction. We are talking about our society, and in our society Harlan’s vision of a due process clause guided by criteria such as the judge’s view of the distinctions between contraceptive use and homosexuality means that there are effectively no limits to the judge’s power to govern us. The Justice expressed sentiments about the uses of the criminal law that we all share, that, indeed, Connecticut shared, but the power to depart from the original understanding of the Constitution is not limited to the articulation and enforcement of views we all share. Poe v. Ullman led directly to the intellectual catastrophe of Griswold v. Connecticut, which led to the ukase of Roe v. Wade, which led to four Justices—and for a time they had the necessary fifth vote—finding a constitutional right to homosexual conduct. The Court or a substantial minority of it had come to do the very things that Justice Harlan had said of course it would not do. No matter what your moral views on any of these matters, nothing in the Constitution addresses them. Harlan’s methodology, often admired by advocates of judicial restraint, turns out to offer no protection against judicial imperialism.

  Some lawyers of a conservative disposition admire Harlan’s Poe opinion for no better reason than that it invokes “tradition.” But not all traditions are admirable, and none of them confines judges to any particular range of results. Former Stanford Dean John Ely begins his discussion of tradition as a source of constitutional doctrine with a quotation from Garry Wills: “Running men out of town on a rail is at least as much an American tradition as declaring unalienable rights.”41 Ely is excellent on the subject. “There is,” he writes, “obvious room to maneuver, along continua of both space and time, on the subject of which tradition to invoke. Whose traditions count? America’s only? Why not the entire world’s? … And who is to say that the ‘tradition’ must have been one endorsed by a majority? Is Henry David Thoreau an invocable part of American tradition? John Brown? John Calhoun? Jesus Christ? It’s hard to see why not.”42 The Constitution, he points out, is intended to check today’s majorities, and it seems quite odd to check them with the views of yesterday’s majorities.43 I can think of no reason that rises to the level of constitutional argument why today’s majority may not decide that it wants to depart from the tradition left by a majority now buried. Laws made by those people bind us, but it is preposterous to say that their unenacted opinions do.

  A Judicial Philosophical Free-for-All

  Matters have not improved since Justice Harlan wrote. In the spring of 1989 the Justices of the Supreme Court engaged in a debate about the meaning of the idea of substantive due process. The result was more confusion than ever about the sources and scope of a judicial power unrelated to the text of the Constitution.

  The occasion for the debate was the case of Michael H. v. Gerald D.44 The facts make clear why the full names of the parties were not given. Any of the more daring television soap operas would envy the plot. Gerald D., a top executive in a French oil company, married Carole D., an international model, in Las Vegas, appropriately enough. They settled in California. Two years later Carole entered an adulterous affair with Michael H., a neighbor. Two years after that, she conceived Victoria D. Gerald was shown as Victoria’s father on the birth certificate and he always held himself out as that. But Carole told Michael he might be the father. Gerald moved to New York City for business reasons but Carole and Victoria remained in California. Blood tests then showed a 98.07 percent probability that Michael was Victoria’s father. For three months, Carole visited Michael in St. Thomas, the site of his business, and there Michael held Victoria out as his child. Carole then returned to California with Victoria and took up residence with yet a third man, Scott K. Soon, she and Victoria spent time with Gerald in New York City and on vacation in Europe and then returned to Scott in California.

  Michael filed an action in California to establish his paternity and right to visit Victoria. Carole was again living with Gerald in New York, but she soon returned to California and took up again with Michael. For eight months, when not in St. Thomas, Michael lived with Carole and Victoria and held the girl out as his daughter, but Carole then left Michael and rejoined Gerald in New York, where they lived with Victoria and had two other children.

  The legal situation, unlike the human situation, was, initially at least, uncomplicated. A California statute provided that the child of a woman living with her husband is conclusively presumed, with some exceptions, to be her husband’s child. The California court therefore gave judgment for Gerald, denying Michael’s request to prove his paternity and for visitation. Michael challenged the constitutionality of the statute as a violation of his substantive due process rights and carried the case to the United States Supreme Court. There the constitutional situation proved as confused as everything else in the case. The only thing clear was that Gerald and Carole won and Michael lost.

  The Court produced five opinions. No Justice took the position of Justice Hugo Black that, aside from incorporating the Bill of Rights, the due process clause of the fourteenth amendment was entirely a procedural guarantee and gave the Court no substantive powers. That, as pointed out in Chapter 1, is the only defensible view of the due process clause. Justice Scalia wrote an opinion which only Chief Justice Rehnquist joined in its entir
ety.45 Justices O’Connor and Kennedy joined in all but a single footnote, but that footnote makes a great deal of difference.46 Scalia began by saying “It is an established part of our constitutional jurisprudence that the term ‘liberty’ in the Due Process Clause extends beyond freedom from physical restraint.” That, of course, means that the clause does not protect merely against being jailed without a fair trial but, to some unknown degree, gives freedom from other laws a legislature has enacted, that enabled Michael to challenge the California legislature’s decision to presume that Victoria, having been born to Carole while the latter was married to Gerald, was Gerald’s child. But Scalia worried that the assumption of such substantive power by judges might mean that the only limits were the predilections of those currently on the Court. He therefore turned to tradition and history and found that relationships such as that of Michael and Victoria had not been treated as a protected family unit while the marital family (Gerald, Carole, and Victoria) had.

  In footnote 6, however, Scalia apparently attempted to provide a further safeguard against judicial constitution-making. Justice Brennan’s dissent objected to using historical traditions specifically relating to the rights of an adulterous natural father rather than more general traditions relating to parenthood.47 The dispute, as so often in constitutional law, was about the level of generality the Court should use in defining and applying a concept. Scalia and Rehnquist chose “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.” General traditions, he said, “provide such imprecise guidance [that] they permit judges to dictate rather than discern the society’s views…. Although assuredly having the virtue (if it be that) of leaving judges free to decide as they think best when the unanticipated occurs, a rule of law that binds neither by text nor by any particular, identifiable tradition, is no rule of law at all.”

  Justice O’Connor, joined by Justice Kennedy, apparently wanted just such a free hand. Concurring in everything but Scalia’s footnote 6, she wrote, “I would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis.”48 Another name for the prior adoption of a single mode of analysis is, of course, “the rule of law.”

  It was left to Justice Brennan’s dissent, joined by Justices Marshall and Blackmun, to claim unlimited judicial power to remake the substance of the Constitution in the name of a clause about fair procedures. He began his argument with Scalia’s plurality by stating their position in order to give a very peculiar rebuttal: “Once we recognized that the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment encompasses more than freedom from bodily restraint, today’s plurality opinion emphasizes, the concept was cut loose from one natural limitation on its meaning.”49 Since that “recognition” involved transforming the clause from one about due process to one about due substance, without any guide in constitutional text, history, or structure as to what substance might be due, there was then no limitation on its meaning, natural or otherwise. The clause now “means” anything that can attract five votes on the Court.

  Justice Brennan said, “This innovation paved the way, so the plurality hints, for judges to substitute their own preferences for those of elected officials.”50 Quite right, that is just what it does, and it is odd that, having stated the problem so succinctly, Brennan did not deny that it was true or offer a solution. Instead, he denied that the plurality’s emphasis on “tradition” provided a limitation on judicial power: “this concept can be as malleable and as elusive as ‘liberty’ itself” and places no “discernible border around the Constitution…. [b]ecause reasonable people can disagree about the content of particular traditions, and because they can disagree even about which traditions are relevant to the definition of ‘liberty.’ ”51

  That is precisely what I said in criticizing Harlan’s theory of substantive due process in Poe v. Ullman. I found that a conclusive reason to abandon the whole enterprise of substantive due process as an inherently lawless usurpation by judges of powers legitimately belonging to the people and their elected representatives. But Justice Brennan found it a conclusive reason to claim still more judicial power. Tradition was not irrelevant, he said, but

  [t]hroughout our decisionmaking in this important area runs the theme that certain interests and practices—freedom from physical restraint, marriage, childbearing, childrearing, and others—form the core of our definition of “liberty.”52

  Once more, we are tempted by good things, marriage and childbearing, to concede a power that is not legitimate. The “interests and practices” covered by the words “and others” included, of course, abortion and, in his view, homosexual sodomy. Had he cared to go back to prior Courts, the interests at the core of liberty would have included freedom from wages-and-hours legislation and freedom to own slaves. Even for the modern Court, his list is much too short.

  Brennan gives a very odd reason for judicial protection of the freedoms the Court has chosen. “Our solicitude for these interestsis partly the result of the fact that the Due Process Clause would seem an empty promise if it did not protect them, and partly the result of the historical and traditional importance of these interests in our society.”53 That sentence repays scrutiny. The due process clause would be an “empty promise” if it were limited to what it actually promised: due process. Not long afterward he rebuked the plurality for “mock[ing] those who, with care and purpose, wrote the Fourteenth Amendment.”54 Hugo Black would have replied that the mocking is done by those who take the clause as a grant of power that those who wrote it clearly did not intend. Nor is it clear why the historical and traditional importance of certain interests provides judges with power to set aside the assessment of their importance by elected representatives.

  The dissent contains a paragraph that demonstrates the incoherence of substantive due process:

  In construing the Fourteenth Amendment to offer shelter only to those interests specifically protected by historical practice, moreover, the plurality ignores the kind of society in which our Constitution exists. We are not an assimilative, homogenous society, but a facilitative, pluralistic one, in which we must be willing to abide someone else’s unfamiliar or even repellant practice because the same tolerant impulse protects our own idiosyncracies. Even if we can agree, therefore, that “family” and “parenthood” are part of the good life, it is absurd to assume that we can agree on the content of those terms and destructive to pretend that we do. In a community such as ours, “liberty” must include the freedom not to conform. The plurality today squashes this freedom by requiring specific approval from history before protecting anything in the name of liberty.55

  A “freedom not to conform”? What can that possibly mean? Freedom from law? Law requires conformity within the subjects it covers. In this case, California’s elected representatives had defined aspects of family and parenthood. Why is their agreement on those matters absurd and destructive? Why must Michael be free not to conform to the legislative and judicial determination that it was better for the family, including Victoria, not to give Michael the rights of a married father? Justice Brennan can say such things only by confusing the Court with the society so that what the actual society wants is of no importance compared with what the Court thinks it should want. And what the society should want is that the adulterous natural father be able to intrude upon the marital family. However one feels about that, the balance between the interests of the natural father and the marital family is surely a moral and prudential issue for the people and not for the unguided discretion of judges. But, having invented a Constitution that no one drafted or ratified, Justice Brennan topped matters off by accusing the Justices in the plurality of violating their sworn duty by not subscribing to his invented version: “I cannot accept an interpretive method that does such violence to the charter that I am bound by oath to uphold.”56 Brennan, it will be recalled from Chapter 9, created a “human dignity” clause, found nowhere in
the Constitution, that makes unconstitutional the death penalty, which is found several times in the Constitution.

  This is where matters now stand with respect to judicial revision of the Constitution. No Justice renounces the power to override democratic majorities when the Constitution is silent. It may be that Scalia and Rehnquist are trying to come as close as they can to that position by insisting on using the most specific tradition available. But even that assumes an illegitimate power, and the limitation will prove no restriction at all when there is only a general, unfocused tradition to be found. Seven Justices, in varying degrees, reject even that slight restriction on their powers. Nothing resembling an adequate justification has ever been, is now, or ever will be offered for this taking by judges of a power that is not theirs. The political seduction of the law continues apace.

  11

  Of Moralism, Moral Relativism, and the Constitution

  The theorists of left-liberal constitutional revisionism did not, of course, invent their ideas in a vacuum. They are best understood as the academic spokesmen for, and the rationalizers of, the dominant attitudes of what may be called the intellectual or knowledge class. They are, that is, rooted in a powerful American subculture whose opinions differ markedly from those of most Americans.