After the Tall Timber (47 page)

Secondly, the notion that “rights  . . . inhere in humans,” which Bork dismisses as some new, modish rhetorical development, was held so firmly by the founders of the republic that the second paragraph of the Declaration with which they proclaimed their independence began, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights.” The Constitution itself was drafted with three clear aims: to create a compact to form a republic, which would unite the separate states; to establish a structure by which that republic would be governed; and to protect precisely the individual rights of citizens against majoritarian intrusion and coercion by the state.

That the Framers regarded these rights as inhering in the individual, and not as in any sense “derived,” either from any document or from any trivial, utilitarian “governmental process,” is clear, and not just from the Bill of Rights—which Judge Bork, in the same article, brushes aside as a “hastily drafted document upon which little thought was expended.” It was thoroughly thought out again, after the Civil War, when the Fourteenth Amendment extended the core of the Bill of Rights, along with due process and equal protection, to the citizens of all the states. But Bork treats this amendment rather dismissively as well, speaking of the “value choice (or, perhaps more accurately, the value impulse) of the Fourteenth Amendment.” He writes of the “men who put the amendment in the Constitution” that “many or most of them had not even thought the matter through.”

“Courts must accept any value choice the legislature makes unless it clearly runs contrary to a choice made in the framing of the Constitution,” Bork writes. And: “It follows, of course, that broad areas of constitutional law ought to be reformulated.” And: “The distinction between rights that are inherent and rights that are derived from some other value is one that our society worked out long ago with respect to the economic market place . . . . A right is a form of property . . . . The modern intellectual argues the proper location and definition of property rights according to judgments of utility . . . . As it is with economic property rights, so it should be with constitutional rights relating to governmental processes.”

The notion that the individual or his rights exist for the state, and to serve its “judgments of utility,” is the basis of Bork’s ideology. A notion more antithetical to the whole purpose and structure of the Constitution can hardly be imagined. “There is no principled way in which anyone can define the spheres in which liberty is required and the spheres in which equality is required.” But the Constitution does not speak of “spheres,” and the founders of the republic discerned so little of the tension that Bork consistently finds between “liberty” and “equality” that the same sentence of the Declaration which speaks of “liberty” as one of men’s “unalienable rights” includes the statement “All men are created equal.”

“It is emphatically the province and duty of the judicial department,” Justice John Marshall said in 1803, in the great case of
Marbury v. Madison
, “to say what the law is.” To that end, insulated by life tenure from the majoritarian pressures to which members of the two other branches, and of the state legislatures, were subject, the federal courts were empowered—indeed, obliged—to protect, from the prospect of “tyranny” by any of these majoritarian bodies, individual constitutional rights. The Constitution is complicated, intricate, difficult to understand and apply. That has been part of its continuing vitality. But two hundred years of decisions by the Court have understood ever more clearly that it was the intention of the Framers to make very difficult—to require the state to give fairly compelling justifications for—any attempt to take any of those individual rights away. And the reason Judge Bork’s whole formulation is more disturbing than the mere ruminations of an ideologically extreme, revisionist professor is that he misapprehends the nature of “strict construction” in such a way as to compel him, as a “principled” judge, to abdicate the judicial duty “to say,” on behalf of the individual constitutional right against the state, or on behalf of one branch of the federal government bringing suit against another, “what the law is.” And yet nothing could be more apparent from his writings than that he is and intends to be a highly “activist” Judge, concerned less with theory than with results, and with reaching what he considers certain desirable outcomes.

The consistent form of his activism has so far been repudiation. Sometimes, particularly in congressional hearings, he rather tepidly and ambiguously repudiates prior positions of his own. But when it suits him, and if the result he wishes to reach requires it, he repudiates, without hesitation, the clear text of the Constitution itself. Thus, if the Constitution says explicitly, “Congress shall make no law  . . . abridging the freedom of speech,” Bork writes, “Laymen may perhaps be forgiven for thinking that the literal words” are what is meant, and that any legislation seeking to censor or repress that speech bears the burden of explaining why an exception should be made. “But what can one say of lawyers who think any such thing? Anyone skilled in reading language should know that the words are not necessarily absolute . . . . We are, then, forced to construct our own theory of the constitutional protection of speech.”

Having set aside, in other words, “original intent” as it is expressed in a specific provision of the Constitution, he proceeds to attack also, as “deficient in logic and analysis as well as in history,” the “clear and present danger” standard that was first developed by Justices Holmes and Brandeis in the years after World War I. He wishes to overrule all the free-speech cases that elaborated and refined that standard, and then to apply instead the test set forth in his “own theory,” which leaves constitutionally protected only what he calls “explicitly political speech,” a category that he defines so narrowly as to exclude not only what most people mean by “speech” but also what is generally meant by “political.” If Judge Bork’s narrow conception of “explicitly political” speech had prevailed against the sermons, marches, boycotts, and sit-ins that advocated violation of what the federal courts eventually found to be bad and lawless state laws, those laws would never have been found unconstitutional, and there would still be Jim Crow in the South.

What he clearly wants, and clearly intends on the Court to vote to achieve, is to overrule as well many other important lines of cases—concerning, for instance, the right of privacy. Bork believes quite simply that no such right exists: that it is a “court-created right”—or, rather, an imposition of the “unprincipled preference” of the judges for the “gratification” of that “minority” which, for instance, wishes, as in
Griswold
, to be free to use contraceptives, over the “gratification” of that majority which wishes to be free not only
not
to use contraceptives but to prevent anyone else from using them. He does not acknowledge, or appear to perceive, a difference in the order of “freedom” embodied by choosing to do or not to do something and “freedom” to prevent anyone else, even in private, from doing or not doing whatever it is. In fact, Bork routinely uses the vocabulary of coercion to describe choices of the private citizen, and the language of “loss of liberty” or “loss of freedom” to describe the position of the majority whose intrusion the private citizen is trying to resist.

In the name of “freedom,” he wants to overrule, for instance,
Shelley v. Kraemer
, a 1948 decision, thereby allowing states to enforce “a racially restrictive covenant.” And to overrule
Skinner v. Oklahoma
, a 1942 decision, and thereby uphold the right of the state to sterilize robbers. He thinks that the Supreme Court decision forbidding the poll tax was wrongly decided, since the poll tax in question was “not discriminatory” and was “very small.” And so on. There are, of course, cases about which men of good will reasonably disagree—having to do, for example, with capital punishment, with the one-man, one-vote reapportionment cases, and with the “exclusionary rule,” which forbids the state to use in criminal trials evidence that was illegally seized. Of the last, he has said in an interview that it seems to him that “the conscience of the court ought to be” at least as much “shaken by the idea of turning a criminal loose upon society” as by the idea of admitting illegally seized evidence.

It might be worth examining by Judge Bork’s own reasoning the kind of “majoritarian” statute he would feel compelled to uphold. The only individual right that he finds in the Fourteenth Amendment, albeit “derived,” is the right to be protected from state action that enforces “racially invidious classification.” So there is nothing to prevent a majoritarian preference from being expressed, for instance, in a statute requiring everyone, of every race, to be blond. And nothing—perhaps this is more serious—to prevent the state from enforcing a majoritarian preference that all single mothers should be sterilized. Or all women with an IQ below 130. Or all mothers under eighteen.

Bork has repeatedly called
Roe v. Wade
, the 1973 decision recognizing the right to abortion, “an unconstitutional decision,” a “judicial usurpation of state legislative authority.” This has a different significance altogether from calling it a mere mistake, which arguments for the continuity and predictability of the Court’s decisions could leave undisturbed. If it is “an unconstitutional decision” and a “judicial usurpation,” then Justice Bork would be obliged by his constitutional oath not to reaffirm it. And overruling
Roe v. Wade
would permit the recriminalization of abortion by the states.

On the other hand, since there is no right of privacy in the matter, one way or the other, there is nothing to prevent a state from
imposing
abortions, as long as that imposition is expressed in a “racially neutral” law.

Bork would doubtless reply that no such statutes could be passed anywhere in this country, and that we should have more faith in “majoritarian” “preferences” than that. But there have been totalitarian states in this century, as “majoritarian” as any in history, which have passed very extreme statutes of that order. For that matter, for decades in the South there were statutes of a related kind.

In a simultaneously impassioned and derisive article published in
The New Republic
of August 31, 1963, Bork left no doubt of where he stood. What he opposed at the time was “legislation by which the morals of the majority are self-righteously imposed upon a minority.” He also said, “The simple argument from morality to law can be a dangerous non-sequitur.” He was not writing about
Griswold
, or
Roe v. Wade
. The dangerous “majority” in this instance included, among many other individuals and institutions, Congress, then about to pass the Interstate Public Accommodations Act, which became Title II of the Civil Rights Act of 1964.

Bork was so exercised at the prospect of this majoritarian “mob coercing and disturbing other private individuals”—the “mob” presumably composed of Rosa Parks, religious elderly people, schoolchildren, sedate college students at lunch counters, and perhaps even those brave, mostly Republican judges of the Fifth Circuit, Elbert Tuttle, John Minor Wisdom, Richard Rives, John Brown, and others who supported them—that he referred no fewer than four times to the impact of the proposed law on barbers, though barbers were explicitly excluded, in public hearings before Congress, from enterprises covered by the act. Although he warned of “the danger of violence,” he gave no indication that he knew which side the violence was on, or was aware that the “private individuals” he described as being “coerced” were really mobs armed with baseball bats and ax handles, and troopers with dogs, clubs, and water hoses, and that though there was “violence”—bombings, beatings, shootings—not one incident of that kind, in all the years of the desegregating transformation of the South, was perpetrated by the people whose conduct he so deplored.

In as recent a case as
Dronenburg v. Zech
, 1984, Judge Bork repeated many of the views he had expressed in
The New Republic
in 1963 and the
Indiana Law Journal
in 1971.
Dronenburg
was a case that should have been—and, in a sense, was—decided in a single paragraph, to the effect that there was ample precedent for upholding a policy that permitted the military to discharge an officer for homosexuality. But Judge Bork, speaking for the Court, used the occasion to write one of what have become known as his Ed Opinions, or Ed Notes, or Letters to Attorney General Meese—in effect, job applications, reiterations of commitments he had made concerning what he would do as a member of the Supreme Court.

“The principle of such legislation,” Bork once wrote, “is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.” These lines were not part of any opinion having to do with privacy, say, or abortion, or censorship, or freedom of speech. They were written to describe the desegregation provisions embodied in Title II. The “principle of unsurpassed ugliness” that so exercised him was desegregration.

For at least the past thirty years, no American institution has served us better than the federal courts. For almost twenty-five years, Bork has staked his career on repudiating and denouncing the decisions of those courts. He has expressed his views so forcefully, and for so long, that he has become the nominee because of them. A senator faithful to his own constitutional oath cannot lightly or blandly vote to confirm the nomination unless he is prepared to endorse those views.

The New Yorker
August 3, 1987

INTRODUCTION

ALONG with every other viewer of television during Operation Desert Storm, the Gulf War of 1991, I believed that I saw, time after time, American Patriot missiles knocking Iraqi Scuds out of the sky. Every major television reporter obviously shared this belief, along with a certainty that these Patriots were offering protection to the population of Israel—which the Desert Storm alliance, for political reasons, had kept from active participation in the war. Commentators actually cheered, with exclamations like “Bull’s-eye! No more Scud!” at each such interception by a Patriot of a Scud. Weeks earlier, I had read newspaper accounts of testimony before a committee of the Congress by a tearful young woman who claimed to have witnessed Iraqi soldiers enter Kuwaiti hospitals, take babies out of their incubators, hurl the newborns to the floor, and steal the incubators. I believed this, too.