[This op-ed piece appeared in the Wichita Eagle on December 17, 1989.] 

 

Bork Gives Us His View of Law 

 

The Tempting of America: The Political Seduction of the Law

Robert H. Bork

Free Press 

 

Op-ed column by Dwight D. Murphey

 

            On Jan. 7, 1988, Robert H. Bork resigned his seat on the U.S. Court of Appeals.  He had just gone through, and lost, the bloodiest Senate confirmation battle for a seat on the Supreme Court that any nominee had ever experienced.

            He quit his appeals-court position, he said, so that he could speak more actively on legal and Constitutional issues.              

            This book—certainly one of the more lucid and readable discussions of the great Constitutional issues, past and present—is a product of that resolve.

            Those who wish to read Bork’s own expression of his judicial philosophy will be well rewarded by this book.  Nowhere else is there so comprehensive and clear a statement of Bork’s position and of his critique of competing Constitutional philosophies.

            First, we see him as a nay-sayer.  He is opposed to any ideologically informed interpretation of the Constitution, whether modern liberal (“radical egalitarian”) or classical liberal (the pro-market form of conservatism that dominated the Court until the late 1930s). 

            His view of the judicial function is such that he desires no “unguided discretion” in the hands of judges.  When contemporary liberals use the great accordion clauses of the Constitution—mainly due process and equal protection—to adapt Constitutional theory to their ends, he sees it as an elitist usurpation of power that uses the least democratic branch of government to accomplish what liberals can’t win at the ballot box.

            His book is a devastating critique of the radical egalitarianism among law school theoreticians and on the Court itself.  Bork argues lucidly that this liberalism is moralistic and coercive in its opposition to many of the values of mainstream America and, at the same time, morally relativistic in favor of a “let it all hang out” perversion of individualism.

            He would not, however, have the Court revert to an updated version of the pro-market classical liberalism that found expression in the “freedom of contract” doctrine during the late 19th and early 20th centuries.  Bork shares with contemporary liberals the view, expressed years ago by Oliver Wendell Holmes, Jr., that the Court in those days smuggled “Herbert Spencer’s Social Statics” into the Constitution.

            He believes strongly that both the pre- and post-New Deal majorities on the Court have engaged in a continuing effort to read into the Constitution more than is there—and that this has been done at the expense of the majority’s right to govern.

            Liberals know that Bork is an adversary.  Most people who think of themselves as conservatives don’t yet grasp that he is equally averse to the pre-New Deal understanding of the Constitution as a bulwark in favor of limited government.

            What Bork does favor is an interpretation of the Constitution according to its “original understanding.”  By this, he means applying each clause amply, but eschewing any interpretation that opens a Pandora’s box for freewheeling “unguided judicial discretion.”  (Seen from another point of view, it means interpreting the Constitution without the aid of an informing social and political philosophy.  Classical liberals have every right to object that the ethos of the 18th and 19th centuries was profoundly classical liberal, and that precisely such a philosophy ought to form the basis for interpreting the Constitution.)

            Bork’s position places him in an ironic situation.

            At the very time that it puts him in favor of a far more humble role for judges, it puts him at odds with the vast run of Supreme Court thinking and precedent over the entire 200-year history of the Court.  He disagrees fundamentally with almost every justice who has ever sat on the Court.

            Bork is a conservative in the mold of Edmund Burke—which is to say, he sees value in avoiding “the willfulness of ‘abstract reasoning’” by holding fast to the realities of the present, adapting to the future prudentially.

            Ironically, though, such a conservative is cast into what we might call “the paradox of displaced conservatism” when the “present” that he wants to affirm has by the passage of time become 200 years old.  Embracing it requires a quantum leap across history.  This calls for reinstating something that, though once an historic reality, has itself become precisely what the Burkean abhors—a social model and an abstraction.

 

Dwight D. Murphey is an associate professor of business law at Wichita State University and the author of several books on social and political philosophy.