Honoring Robert H. Bork

(I first posted a shorter version of this tribute at www.hughhewitt.com the day after Judge Bork’s passing and here the day after that.  This version was posted here on Sunday morning, December 23rd.)

At the Constitutional Convention in 1787, it was remarked that the system the delegates were designing – a government of checks and balances, sovereign states, limited government and enumerated powers — would likely last intact no more than 150 years, that is, to the 1930s.  Today some would say the prediction was all too prescient.  It was the life work of Robert Bork, who passed away Wednesday, to prove it ultimately wrong.

Judge Bork was, of course, a founder of the school of legal thought known as originalism.  The Constitution should be read and interpreted, he maintained, according to the meaning the Framers and ratifiers understood it to have.  It should not be treated as, in William F. Buckley’s term, a “Rorschach test,” that is, an inkblot in which activist judges saw whatever they chose to see.  There had been a time when such a view needed no school of scholarship to support it.  But that day was gone by the time Robert Bork arrived on the scene.

The September 1987 Senate confirmation hearings and debates over Judge Bork’s nomination to the Supreme Court proved a political travesty. The Democrats had won the Senate the prior November.  Iran-Contra broke a few weeks later.  Liberals in Congress and allied interests thought they could effectively end the Reagan presidency and lusted for scalps.  The North hearings frustrated them.  More frustrating, the president retained tolerable popularity thanks to moving quickly, once he learned of the machinations that produced the scandal, in investigating and publicizing details and discharging those responsible.  When Justice Lewis Powell retired, the Democrat establishment resolved at least to deny Mr. Reagan a fourth appointment to the Supreme Court.  In this they were ultimately frustrated, too, but not before corrupting of the confirmation process.  Led by Ted Kennedy on the Senate floor and, unprecedented in our history, in national advertising and political organizing, they mounted a campaign of calumny that destroyed the nomination’s viability. And yet, as a result of the widely watched hearings and the best-selling books that followed, Judge Bork’s ideas received wider exposure than had he won.

Among those they had already reached was Ronald Reagan. The president never got a chance to welcome Robert Bork to the high bench. But almost exactly a year before the confirmation battle, at a White House ceremony to swear in Chief Justice William Rehnquist and Justice Anton Scalia, he spoke of the Constitution in terms that bore the stamp of Robert Bork’s thought. 

As a tribute to Judge Bork, following are excerpts from Mr. Reagan’s September 1986 argument for originalism.  Robert H. Bork’s legacy was not to be as a justice but, through his ideas, as a teacher of current and future justices — and of all Americans who think searchingly about the foundations and purpose of our constitutional system:

[The 1787 delegates] settled on a judiciary that would be independent and strong, but one whose power would also, they believed, be confined within the boundaries of a written Constitution and laws. In the convention and during the debates on ratification, some said that there was a danger of the courts making laws rather than interpreting them. The framers of our Constitution believed, however, that the judiciary they envisioned would be “the least dangerous” branch of the Government, because, as Alexander Hamilton wrote in the Federalist Papers, it had “neither force nor will, but merely judgment.” The judicial branch interprets the laws, while the power to make and execute those laws is balanced in the two elected branches. And this was one thing that Americans of all persuasions supported.

Hamilton and Thomas Jefferson, for example, disagreed on most of the great issues of their day, just as many have disagreed in ours. They helped begin our long tradition of loyal opposition, of standing on opposite sides of almost every question while still working together for the good of the country. And yet for all their differences, they both agreed—as should be—on the importance of judicial restraint. “Our peculiar security,” Jefferson warned, “is in the possession of a written Constitution.” And he made this appeal: “Let us not make it a blank paper by construction.” Hamilton, Jefferson, and all the Founding Fathers recognized that the Constitution is the supreme and ultimate expression of the will of the American people. They saw that no one in office could remain above it, if freedom were to survive through the ages. They understood that, in the words of James Madison, if “the sense in which the Constitution was accepted and ratified by the nation is not the guide to expounding it, there can be no security for a faithful exercise of its powers.”

The Founding Fathers were clear on this issue. For them, the question involved in judicial restraint was not—as it is not—will we have liberal or conservative courts? They knew that the courts, like the Constitution itself, must not be liberal or conservative. The question was and is, will we have government by the people? And this is why the principle of judicial restraint has had an honored place in our tradition. Progressive, as well as conservative, judges have insisted on its importance—Justice Holmes, for example, and Justice Felix Frankfurter, who once said, “The highest exercise of judicial duty is to subordinate one’s personal pulls and one’s private views to the law.” …

[T]he Founding Fathers designed a system of checks and balances, and of limited government, because they knew that the great preserver of our freedoms would never be the courts or either of the other branches alone. It would always be the totality of our constitutional system, with no one part getting the upper hand. And that’s why the judiciary must be independent. And that is why it must exercise restraint….

The warning, more than a century ago, attributed to Daniel Webster, remains as timeless as the document he revered. “Miracles do not cluster,” he said, “Hold on to the Constitution of the United States of America and to the Republic for which it stands—what has happened once in 6,000 years may never happen again. Hold on to your Constitution, for if the American Constitution shall fall there will be anarchy throughout the world.”

 

  1. KC Mulville

    The ultimate power of the Constitution lies in the fact that it’s based on the “consent of the governed.” Sadly, that phrase has petrified into a slogan that no longer penetrates our collective discussions.

    Why does anyone have authority over you?

    • If we’re discussing religion, it would be because the deity selected someone to have authority.

    • But when it comes to civil government, in a society where all citizens are deemed equal, then no one has any inherent authority over anyone else.

    Since we need some form of authority (a practical necessity in a large population), but such authority isn’t inherent … how do we create it? The only answer of a free people is: by agreement. Authority only comes when people agree to it.

    The Constitution is the record of what we’ve agreed to.

    Although the Constitution isn’t itself a simple contract, the method of interpreting it is the same as a contract: what was the agreement? What did we agree to?

    And like a simple contract, the issue isn’t what some might like to agree to now … it’s only what we formally agreed to at a specific time.

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