Robert Bork maintains that judges should try to understand the Constitution as it was intended by its authors: They should not enact their own political positions into law. He defends his analysis against the objections that other legal theorists have raised and counterattacks with some telling blows against alternative theories. Constitutional interpretation has for Judge Bork a more than theoretical interest. Nominated to the Supreme Court in 1987, Bork found himself the subject of bitter controversy. Critics claimed that his variety of jurisprudence failed to protect freedom of speech and other civil rights. They tried to turn the tables on his claim that many judges are biased by liberal prejudices and contended that Bork’s decisions reflected his own conservative brand of politics.
On October 23, 1987, the Senate rejected Bork’s nomination. In The Tempting of America: The Political Seduction of the Law, Bork offers his version of the fight. As he sees it, his opponents often resorted to biased and dishonest charges. His presentation emphasizes the commonsense character of his approach to the Constitution, a document that he thinks ought to be read like any other legal document. For a judge faced with the free-speech clause of the First Amendment, for example, the key issue is what the authors meant by “freedom of speech.” The judge who decides a free-speech case should not interpret the provision according to his or her own views on free speech.
Many legal theorists, including Justice William J. Brennan and Professor Lawrence Tribe of Harvard University, think that even pornography ought to be allowed without restriction. Bork does not counter with the claim that free speech should be limited. A judge should inquire: Did the Framers of the First Amendment intend to include pornography in the amendment? If they did, the fact that a judge personally may regard censorship as undesirable is without relevance. Bork thinks that the authors of the First Amendment did not intend to include pornography within the category of free speech: The intent was to promote freedom of political discussion; thus, Supreme Court decisions overturning the regulation of pornography have been incorrect.
The issue of free speech is an example of what Bork calls the Madisonian dilemma. The United States is governed by a congress and a president elected to carry out the people’s will. At the same time, the Constitution guarantees certain rights that limit the power of the majority. In Bork’s opinion, the judge must, in constitutional cases, weigh the conflicting claims of majority rule and individual rights. Few scholars will find Bork’s description of the Madisonian dilemma controversial, but the same is hardly true of his solution. He is reluctant to overturn decisions of the elective branches. Unless he can find a specific provision of the Constitution that forbids something that Congress or the president has done, he will not allow a claim of individual rights much weight.
Perhaps the most controversial example of Bork’s approach is his stand on abortion. In Roe v. Wade (1973), the Supreme Court established a new right: A woman was free to have an abortion, with little or no state restriction permitted. The Fourteenth Amendment’s guarantee of liberty includes a right of privacy, the court decided, and the freedom to procure an abortion comes under this right. Bork will have none of this. Not only does the amendment fail to mention abortion, he argues, but it also contains no reference to a right of privacy. He finds nothing in the legislative history of the amendment to indicate an intention to include this alleged right in the Constitution.
Bork’s position on abortion (and on the right to use contraceptives) is not a matter of his own personal views on these issues. It is a judge’s function to apply the Constitution: If it contains no provision that establishes a right of privacy, then there is no right to use contraceptives. Bork himself opposes the prohibition of contraceptives, but his opinion, like anyone else’s—except the authors of the Constitution—has no bearing on legal interpretation.
Some parts of the Constitution are very difficult to interpret according to Bork’s principles, as he readily admits. For example, the Ninth Amendment refers ambiguously to rights “retained by the people,” and the Fourteenth Amendment forbids abridging the “privileges and immunities” of citizens but contains no list of these privileges and immunities. Little or no historical information has come to light on either of these topics. Bork wishes to read the Constitution as it was originally understood, but the information that would enable him to do this is often not available. Those willing to interpret the Constitution in a more expansive way do not face this difficulty, not being required to discover the original intent of every part of the Constitution they wish to apply.
Bork solves the problem in a radical way. Provisions of the Constitution that cannot be reasonably construed must be treated as void. No doubt the Fourteenth Amendment grants citizens certain privileges and immunities. What the Framers meant by this provision, however, cannot be readily determined. In effect,...
(The entire section is 2157 words.)