The Danger of Robert Bork

I have been challenged to defend my claim that Robert Bork is "insane". It's not a terribly artful term, I admit, and I meant it figuratively rather than literally. But I will certainly defend the assertion I've defended many times before, which is that Robert Bork's views on constitutional law are incredibly dangerous to a free society and little more than an apology for authoritarianism. I first became acquainted with Bork, like most Americans, during the confirmation hearings when he was nominated for the Supreme Court in 1987. Because of a class I was taking at the time, I had the opportunity to read a large number of his law review articles and speeches and was stunned at how bad they were. Even his opponents continually referred to him as an eminent and brilliant legal scholar, but I certainly didn't find anything in his voluminous writings that could possibly justify such praise. Most of what I found was so badly reasoned that it would get a poor grade if written for a basic con law class. I'll give a few examples here.

The first thing that should probably be noted is that Bork has, at one point or another in his career, taken virtually every position possible on judicial interpretation. Everyone knows that since the early 1970s, he has been a staunch advocate of his own version of "originalism" (which I find to be highly contrary to a genuine originalism) and of "judicial restraint." Few know that prior to that, he was quite the opposite. As late as 1968, for example, he was lauding the Griswold v. Connecticut decision that he later excoriated as a vile example of judicial activism. The Griswold decision, he wrote in Fortune magazine in that year, demonstrated that the "idea of deriving new rights from old is valid and valuable. The construction of new rights can start from existing constitutional guarantees, particularly the first eight amendments, which may properly be taken as specific examples of the general set of natural rights contemplated." The notion of deriving specific rights from general principles found in the Constitution - that dreaded "penumbral reasoning" - would just a few short years later have Bork positively apoplectic, and the notion of deriving specific rights from a "general set of natural rights" even more so. The Bork of 1968 also rejected entirely the need, or even possibility, of searching for the "original meaning" of the Constitution, writing:

It is naive to suppose that the Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning," to work at "finding the law" instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court.

One could hardly ask for a better example of the legal realism he would so soon consider to be a pernicious and dangerous idea. For the record, I think he was wrong in 1968 as well, but not nearly as wrong as he would be by 1971, when he wrote the first scholarly article I read from him, in the Indiana Law Journal. By that time, he had decided that Griswold was "an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it" and he would later testify before Congress in 1981 that Griswold was "an unconstitutional decision" and "perhaps the worst example of constitutional reasoning I have ever read." One thing you have to admit about Robert Bork, there is little room for nuance or subtlety in his world. Whatever he is advocating at any given moment is monumentally clear and it's unthinkable to him that someone could hold a different opinion, even if he did so himself a short time ago. Unfortunately, his 1971 views, while advocated with the same air of self-confidence as his 1968 views, were far less defensible and further off the mark. It was in his 1971 ILJ article that he first developed what can only be described as a surreal equivalence of interests. He wrote:

"Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratification of the two groups...why is sexual gratification more worthy than moral gratification?

Well Mr. Bork, the answer to this should be quite obvious, it seems to me. The first requires only that an individual control their own actions, while the second requires that they use the power of the state to control the actions of others. That is precisely the line drawn between individual rights and governmental authority, and the question of where to draw that line is the overriding concern of the Constitution and especially the bill of rights. Thomas Jefferson had one answer to this question, that the authority of government extends only to those actions that are injurious to others or deprive them of their equal rights. And Bork has another, quite disturbing, answer:

"No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral."

But as Randy Barnett has pointed out, such a standard literally removes all possible constraints from what government can and cannot do. If the government may justly decide that it can prohibit behavior solely because "society" thinks it to be immoral, then all they have to do is declare something to be immoral and they have justified whatever legal coercion is necessary to prevent that action. But in Bork's world, if a right is not explicitly stated in the Constitution, the state may do as it wishes:

Unless we can distinguish forms of gratification, the only course for a principled court is to let the majority have its way in both cases. It is clear that the court cannot make the necessary distinction. There is no principled way to decide that one man's gratifications are more deserving of respect than another's or that one form of gratification is more worthy than another.

Surreal, isn't it? And it would certainly come as a shock to the founding fathers to hear that there is no way to distinguish between an individual's desire to control their own actions, and the majority's desire to control the actions of others. One need not imagine the response that Thomas Jefferson would have to this bizarre equivalence; we have his own words:

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.

What is truly amazing to me is that Bork dares to call himself an originalist while seeking so often to distort the text of the Constitution to suit his preferences. For instance, he does not believe that non-political speech deserves first amendment protection. Here are his own words:

"Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law."

Now read that again and imagine how the nation would change if Bork's position won the day. The Alabama state representative, Gerald Allen, who is trying to put through a bill to ban all literary works written by gay authors or that mention homosexuality at all, could go even further and throw in prison anyone who advocates homosexuality or speaks about it in a literary setting becuase, Bork says, literary speech is not protected by the first amendment. Calls to civil disobedience (not the disobedience, but any speech advocating it), so powerful a tool of change in our nation for 200 years, could result in prison terms. Scientists would not have a right to publish their work because, again, only explicitly political speech would be protected, which means the government could require that all scientific writing conform to the official state view. Lysenkoism ring a bell for anyone?

There is much more that could be said, but I'll leave it at that for now. Bork's legal writings since 1971 are little more than one long apologetic for authoritarian government, for a government that is far more intrusive in controlling the rights of conscience that Madison and Jefferson defended so eloquently. Despite his endless rhetoric about the importance of principle, Bork is first and foremost an apologist for power and his actions as Richard Nixon's henchman in the Watergate scandal should have made that clear to everyone. When Archibald Cox demanded that President Nixon turn over the White House tapes as evidence in his investigation, Nixon demanded that his Attorney General fire Cox to protect his own interests. Elliott Richardson, the Attorney General, and William Ruckelshaus, his deputy, resigned out of principle rather than carry out Nixon's orders. But Robert Bork, loyal servant of unbridled authority that he is, gladly accepted a promotion from Solicitor General to do Nixon's dirty work. That speaks volumes about the sort of man Bork truly is.