text:
Georgia Law Review
Summer, 1990
Glenn Harlan Reynolds [FNa1]
Copyright 1990 by the Georgia Law Review Association, Inc.; Glenn Harlan
As we slide into the 1990s, it seems that the 1960s will never be behind us. Nowadays, in fact, there seems to be a modest boom in the production of books criticizing those positions that seemed to be dominant, whether culturally or legally, in the 1960s. For the writer of law books, however, attacking sixties ideals poses special difficulties. Of the three dominant legal themes of the 1960s one-the civil rights movement-is now politically unassailable, at least frontally, by anyone who wants to be taken seriously in the mass culture, and another-the effort to legalize and legitimize drug use-has fallen so far that it is hardly worth kicking even when down. That leaves only the sexual revolution (and its accompanying relaxation of legal restrictions on sexual conduct, accomplished largely through judicial decisions) as a fit target for assault from the right.
This assault, as the title (perhaps inadvertently) suggests, makes up one of the main themes of Robert Bork's recent bestselling book, The Tempting of America: The Political Seduction of the Law. [FN1] Specifically, Bork's chief topic consists of a theory of constitutional *1046 interpretation favored by Bork, among others, based on the "original understanding"' of the Constitution, and of repeated attacks on the leading cases of the Warren Court. Foremost among these cases, in Bork's mind, is Griswold v. Connecticut, [FN2] the Connecticut birth control case repeatedly identified by Bork as the worst extant example of unprincipled and antidemocratic judicial decisionmaking and the source of many later decisions that he finds similarly improper.
My purpose in this Paper is not to review Bork's book, but to examine the degree to which Bork's "original understanding"' jurisprudence, as outlined in its latest and best form, supports his critique of the Griswold case, and, more significantly, to determine in that context whether Bork's jurisprudence is adequate to the task he sets it, that of circumscribing the role of the judiciary by constraining results so that judges cannot interfere with decisions arrived at through democratic means. [FN3] Perhaps surprisingly, I conclude that Bork's jurisprudence, as applied to Justice Douglas' opinion in the Griswold case, would neither guarantee a different outcome nor (and this is not quite the same thing) provide any more protection for majoritarian decisionmaking than the various *1047 rationales actually set forth in that case. This conclusion, it seems to me, calls into question not only Bork's formulation, but all theories of constitutional interpretation that rely on the understanding of the Framers as a means of limiting present-day judicial discretion, a point which I discuss at some length at the end of this Paper.
Using the experimental method to test a legal theory may be a bit novel as an approach, but it seems to me to be a valid way of evaluating a theory, like Bork's, that claims predictive ability as its raison d'etre. Potential buyers of theories should remember what car buyers already know, that the glossy brochures and schematic diagrams merely promise performance; the only way to find out if the claims are true is to go for a test drive. And the Griswold case, given the degree to which Bork criticizes it, its considerable general prominence, and its role as underpinning to other controversial matters such as the Supreme Court's abortion jurisprudence, is a good test subject.
Perhaps as a result of this different approach, my point here turns out to be rather different from those of other scholars who have criticized "original understanding"' theories. Richard Kay has divided these criticisms into three general categories: "1) Adherence to original intent is impossible; 2) It is self-contradictory; and 3) It is wrong."' [FN4] My test of Bork's theory in the context of the Griswold opinion leads me to propose a fourth criticism: It doesn't work. That is, even if the theory can be applied in a rigorous fashion, it does not control results in any significant way.
In a sense, pointing this out is pointing out the obvious-if original intent scholarship did work as advertised, it would probably be used more widely by judges who, after all, care a great deal about getting the job done right and who have been willing to accept all sorts of proffered tools (law and economics, for example) that at least appear to offer help. So in a sense the market has already spoken. But pointing out the obvious may nonetheless be useful, as Bork and others have generated sufficient smoke lately to convince the credulous that there may be an honest-to-goodness fire (rather than just a smudge-pot or two) lurking somewhere in the gloom. [FN5]
*1048 In addressing Bork's views, I do not intend to single him out personally, except to the extent that-as both one of the best-known and one of the most articulate advocates of what might be called the post-Reagan right- wing jurisprudence-his views make him a convenient representative of a whole group of thinkers of a similar ilk. [FN6] It is for this reason (and because this is not a review, of which there will no doubt be many) that I do not really address the other theme of Bork's book, which has to do with the battle (which he correctly characterizes as political) over his nomination to the Supreme Court. Although I make no effort to address the merits of the charges made there against Bork, charges which he characterizes as lies, [FN7] I do address the question of how Bork's characterization of the way his confirmation was handled fits in with his general theory of constitutional interpretation. Once again, I conclude that Bork's theory not only fails to produce the outcome that Bork says it requires, but in fact points the other way. From this I draw some lessons, both disturbing and encouraging, concerning the climate and prospects of contemporary constitutional *1049 scholarship.
In Bork's version of jurisprudential paradise, courts interpreting the Constitution would be guided solely by what he calls the "original understanding."' To his mind, this means "that a judge is to apply the Constitution according to the principles intended by those who ratified the document."' [FN8] Such a rule of interpretation is demanded by the fact that the Constitution is law, which Bork defines as "a rule that we have no right to change except through prescribed procedures."' [FN9] Thus, when Courts apply any other theory of constitutional adjudication, their interpretation has the effect of changing the law without going through prescribed procedures, and therefore fails to meet the standard of democratic legitimacy. [FN10] If we want to amend statutes, we must repeal or amend them legislatively; if we wish to amend the Constitution, we must follow the procedures set forth in article V. [FN11] The key element of Bork's approach is, thus, that the freedom of courts to choose among interpretations of constitutional provisions must be constrained by rules that limit their choices to a narrow range already spelled out by the Constitution itself.
This approach is necessary, says Bork, to address the problems growing out of what he calls the "Madisonian dilemma."' [FN12] By this, he means that our system was set up along two different, and seemingly incompatible, theories. On the one hand, our system is based on self-rule, which Bork characterizes as meaning that "in wide areas of life majorities are entitled to rule, if they wish, simply *1050 because they are majorities."' [FN13] On the other hand, other areas are set apart from majority rule by the Bill of Rights which Bork says is "the only solution that directly addresses the specific liberties minorities are to have."' [FN14] Because of the institution of judicial review, in which the courts (and most notably the Supreme Court) review the acts of legislative majorities for consistency with the federal Constitution, courts are often in the position of striking down acts by the majority in order to protect the rights of the minority. This is the source of Bork's Madisonian dilemma; [FN15] it is what Alexander Bickel called the "counter-majoritarian difficulty"' with judicial review. [FN16]
It is a dilemma (or a difficulty), Bork says, because our system is conceived as fundamentally democratic, so that inroads by minorities on democratic governance must be carefully limited. [FN17] If there is no way to assess the work of the courts as they decide between the will of majorities and the rights of minorities in a particular instance, then the result is judicial tyranny. Thus, there must be a theory that allows us to determine the limits of judicial authority, and to assess the work of the judges according to some principle that allows us to say whether their decisions are correct, or at least within "'a limited range of outcomes that can be called correct."' [FN18]
This is the nub of Bork's judge-constraining requirement. In order to be legitimate, courts' actions must be constrained by a theory, one that is capable of predicting results. Where their actions cannot be assessed on the basis of this theory, courts lack legitimacy and should not act at all. Not surprisingly (it is why he wrote the book, after all), Bork says he has just the theory, the theory of "original understanding."' He also says that no other theory is capable of doing the job. [FN19]
*1051 A. Bork's Conception
Bork is not primarily a textualist. [FN20] By "original understanding"' he most emphatically does not mean "the strict language of the text."' [FN21] Nor does he mean the actual subjective intention of the Framers. As Bork says,
If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest.... Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time. [FN22]
The obvious question, of course, is how such an understanding is to be determined. After all, it is not entirely clear (either in general, or in Bork's treatment) whether the "understanding"' with which we are concerned is that of the Framers, that of the state ratifying conventions or that of the public at large. Nor is it entirely clear (again, in either case) which sources a judge may consult-Bork says both that "[t]he original understanding is ... manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like,"' [FN23] and that "the judge *1052 is to interpret what is in the text and not something else."' [FN24] If all that Bork means by this is that in the course of interpreting the Constitution judges may look at other sources for assistance, but that in doing so they must bear in mind that the text they are interpreting is the Constitution's, then he has not said much. If, on the other hand, he intends to give the text primacy and to limit the freedom of judges to pick and choose whatever interpretation suits their fancy, he would serve his cause better by providing some rule for determining to what sources it is appropriate to turn for assistance. Does "the like"' include the Bible? The Federalist Papers? The Talmud? The Magna Carta and the Articles of Confederation? The various state constitutions and the royal charters that preceded them? American (English?) common law at the time of the framing? Bork provides no real guidance here, although he does allow that opinions of early Congresses and of authoritative commentators like Justice Joseph Story are entitled to special weight. [FN25]
Perhaps I am making too much of this problem, though I doubt it. [FN26] Bork, however, seems to feel that judges are laid under sufficient *1053 constraint if they are required to interpret the Constitution in the same fashion as other law. Thus, he minimizes the kinds of problems to which I have just alluded:
The search for the intent of the lawmaker is the everyday procedure of lawyers and judges when they must apply a statute, a contract, a will, or the opinion of a court. To be sure, there are differences in the way we deal with different legal materials, which was the point of John Marshall's observation in McCulloch v. Maryland that "we must never forget, that it is a constitution we areexpounding."' By that he meant that narrow, legalistic reasoning was not to be applied to the document's broad provisions, a document that could not, by its nature and uses, "partake of the prolixity of a legal code."' But he also wrote there that it was intended that a provision receive a "fair and just interpretation,"' which means that the judge is to interpret what is in the text and not something else. And, it will be recalled, in Marbury v. Madison Marshall placed the judge's power to invalidate a legislative act upon the fact that the judge was applying the words of a written document. Thus, questions of breadth of approach or of room for play in the joints aside, lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words. [FN27]
This means, if I read it correctly, that when a question of constitutional interpretation appears the courts are to employ the usual battery of interpretive tools (parol evidence, for example) used in reading other legal documents, like contracts and wills, in order to *1054 arrive at what their drafters meant-though it may be permissible to adopt interpretations that are somewhat broader (that is, further from the text or the original meanings) in light of the fact that it is a constitution that we are interpreting.
Any other approach, Bork says, is unprincipled and ultimately illegitimate because it rejects and undermines both the concept of law as binding and the ideal of democratic decisionmaking. Even such an apparently conservative and non-activist approach as reliance on history and tradition is illegitimate, according to Bork, since questions of history and tradition are excessively manipulable in the hands of judges and hence cannot constrain reasoning and outcomes within a narrow, "correct"' range. [FN28] Nonetheless, approaches other than Bork's are popular, a situation that Bork lays at the door of (liberal) academic elitism:
At first glance, it seems distinctly peculiar that there should be a great many academic theorists who explicitly defend departures from the understanding of those who ratified the Constitution .... A moment's reflection suggests, however, that Supreme Court departures from the original meaning of the Constitution are advocated precisely because those departures are not correctable democratically. The point of the academic exercise is to be free of democracy in order to impose the values of an elite upon the rest of us. [FN29]
This is a crucial part of Bork's position. It is not enough, he says, that a judge employ "neutral principles"' of the sort advocated by Herbert Wechsler. [FN30] Rather, the principles employed must also be *1055 neutrally derived and neutrally defined, else they undermine the idea of democratic decisionmaking:
If the Court is free to choose any principle that it will subsequently apply neutrally, it is free to legislate just as a political body would. Its purported resolution of the Madisonian dilemma is spurious, because there is no way of saying that the correct spheres of freedom have been assigned to the majority and the minority. Similarly, if the Court is free to define the scope of the principle as it sees fit, it may, by manipulating the principle's breadth, make things come out the way it wishes on grounds that are not contained in the principle it purports to apply. [FN31]
Neutral derivation of principles, in Bork's view, means that the principles must come from the Framers: "When a judge finds his principle in the Constitution as originally understood, the problem of the neutral derivation of principle is solved. The judge accepts the ratifiers' definition of the appropriate ranges of majority and minority freedom."' [FN32] Bork's theory quite clearly allows the creation of new constitutional principles and rules; he is not so unsophisticated as to require each question to be submitted to a phantom jury of Framers, an approach that would render the Air Force unconstitutional, since the Constitution provides only for land and naval forces, and since the Framers certainly never contemplated an air force. By requiring that principles be derived from the Constitution and in accordance with original understanding, though, Bork's formula purports to prevent judicial action from invading the sphere reserved to majority political action. That sphere, according to Bork, is quite broad, and majorities' action need not even be directed toward promoting the general good or public welfare: "'The only thing majorities may not do is invade the liberties the Constitution specifies."' [FN33]
But even if principles are derived from the Constitution as originallyunderstood, they must be stated and applied by courts. As Paul Brest has noted, this involves courts choosing the level of abstraction *1056 at which the stating and application are done, often with significant results in terms of the outcome of cases. [FN34] To choose an easy example, does "freedom of speech or of the press"' mean that the government may nonetheless regulate non- print media (or even photocopy machines) without first amendment regulation? Or do those terms really mean "freedom of expression,"' encompassing a wide range of activities from broadcasting to the wearing of particular items of clothing? Obviously, if courts are free to choose among alternatives as far apart as these, the notion of restraining them from interference with majoritarian decisionmaking is a hollow one, no matter how the principles are derived.
Unsurprisingly, however, Bork asserts that the "original understanding"' approach solves this problem, too. First, he notes that many parts of the Constitution do not pose problems of generality, as the level at which they are intended to apply is obvious. [FN35] (Although Bork gives no examples, this is probably true enough). [FN36] Where the problem does come up in its toughest form, he says, is with regard to rights. [FN37]
Bork doesn't say in so many words just why rights raise the toughest questions, but he does provide an example of the kind of problem he means. Thus, after noting that "[t]he equal protection clause was adopted in order to protect the freed slaves, but its language, being general, applies to all persons,"' [FN38] Bork goes on to explain why, in his understanding, the equal protection clause should not be read as a general grant of freedom from discrimination. For example, he says, if one assumes for the purpose of argument that the equal protection clause was intended only to guarantee that blacks should be treated no worse than whites, then it will not support cases such as Bakke [FN39] in which it is whites who are complaining *1057 of discrimination: "Democratic choice must be accepted by the judge where the Constitution is silent."' [FN40] If, on the other hand, one assumes that the purpose was the broader one of promoting racial equality, then the clause would protect members of all races. [FN41]
But even under this broader, "racial equality"' reading, where matters such as gender or sexual orientation are involved, Bork says that since the ratifiers of the fourteenth amendment did not envision those issues a court cannot read the language "equal protection of the laws"' to encompass them. [FN42] Such classifications would still, because of the general language of the clause, be reviewable for reasonableness. [FN43] Some gender classifications would thus be reasonable, while others would not, but all distinctions based on sexual orientation would be outside of the clause's protection. This is because "' s ociety's treatment of sexual orientation is based upon moral perceptions, so that it would be difficult to say that the various moral balances struck are unreasonable."' [FN44]
*1058 Finally, any principle derived and defined in accordance with original understanding must also be applied in the same fashion. The judge must not allow sympathy for a particular party or cause to impel the application of a principle to circumstances for which it is not suited. [FN45] Rather than explain this principle in detail, Bork supplies an example of what he regards as improper application. The case he invokes is Shelley v. Kraemer. [FN46] That case involved racially restrictive covenants in Delaware. Those covenants provided that the property in question could be occupied only by white persons. When white owners sold their property in violation of the covenants, other property owners sued to enforce the covenants, and the state courts, applying common law property rules, granted injunctions against the black owners' taking possession. [FN47]
If such a prohibition were established by statute, along South African lines, Shelley would have been an open-and-shut case. The problem was that the fourteenth amendment speaks only to state action, and the only state involvement was judicial enforcement of the covenants. The Supreme Court found, however, that the state courts' involvement was state action sufficient to satisfy the fourteenth amendment's requirement. [FN48] According to Bork, this rule cannot be applied in a neutral fashion:
Suppose that a guest in a house becomes abusive about *1059 political matters and is ejected by his host. The guest sues the host and the state courts hold that the property owner has a right to remove people from his home. The guest then appeals to the Supreme Court, pointing out that the state, through its courts, has upheld an abridgment of his right of free speech guaranteed by the first amendment and made applicable to the states by the fourteenth. The guest cites Shelley to show that this is state action and therefore the case is constitutional. There is no way of escaping that conclusion except by importing into the rule of Shelley qualifications and limits that themselves have no foundation in the Constitution or the case. [FN49]
The result, he says, is that since all private conduct is at least potentially subject to a lawsuit, and since any disposition of that suit is "state action"' under Shelley, the principle cannot be neutrally applied, for all issues would become constitutional issues. [FN50] Thus the principle would not be, and has not been, applied neutrally, making Shelley an egregious example of judicial usurpation. [FN51]
To summarize, then, Bork's conception depends on (1) construing the Constitution as we would other legal documents, according to the intent of the parties, though with some "play in the joints"' [FN52] perhaps being more appropriate in the course of constitutional interpretation than, say, in the interpretation of wills or contracts; and (2) formulating and defining the principles developed through this interpretive process in a manner that remains linked to the understood purpose of the Constitution and applying those principles in a neutral manner that is (again) consistent with that understood purpose.
B. The Sins of Our Fathers
Thus summarized, Bork's position sounds surprisingly uncontroversial to be coming from a man whose views have been the subject of so much controversy. Nonetheless, Bork says, the philosophy of "original understanding"' has been honored largely in the *1060 breach since the very beginnings of our republic. As he says, "The Constitution was barely in place when one Justice of the Supreme Court cast covetous glances at the apple that would eventually cause the fall."' [FN53] The Justice in question, of course, was Justice Chase in his famous colloquy with Justice Iredell in the case of Calder v. Bull. [FN54] Justice Chase expressed, in dicta, the view that an act of the legislature might beunconstitutional even though it violated no express provision of the Constitution. [FN55] Bork is unstinting in his contempt for Chase's view, which he says is "supported less by legal reasoning than by frequent recourse to the typographic arts,"' [FN56] and which he reproduces in heavily edited form at the beginning of his first chapter. The passage, as excerpted by Bork, follows:
I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by theConstitution, or fundamental law, of the State.... The purposes for which men enter into society will determine the nature and terms of the social compact.... An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority....
*1061 The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.... To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments. [FN57]
By contrast, Bork's approval of Justice Iredell's reply to Chase is strong. As Bork tells it, Iredell replied that the judiciary had power to negate actions by the legislature within the general scope of its constitutional authority only where such power was granted by the Constitution, and, characterizing Chase's approach as invoking natural law, noted that "[t]he ideas of natural justice are regulated by no fixed standard; the ablest and the purest of men have differed upon the subject .... " [FN58]-a passage which Bork himself italicizes by way of emphasizing his agreement with Iredell's sentiments. According to Bork, this colloquy represents the first surfacing of "judicial authoritarianism"' and the ready response of brave defenders of the democratic order. [FN59]
Bork then devotes the next fourscore pages or so to a discussion of how things have gone downhill since this first clash. [FN60] In so doing, he discusses many cases. It rapidly becomes clear, however, that for unprincipled and antidemocratic judicial decisionmaking, there is no case that in Bork's mind equals Griswold v. Connecticut, unless it is to be found among Griswold's offspring, Eisenstadt v. Baird [FN61] and Roe v. Wade. [FN62]
*1062 C. Griswold and Its Progeny
It is almost impossible to describe adequately Bork's unhappiness with the Griswold decision. The case is described as developing a "loose canon in the law"' [FN63] (the right of privacy), as an "intellectual catastrophe,"' [FN64] as "spurious,"' [FN65] as a case whose reasoning "was not meant to be taken seriously"' [FN66] and as the "construction of a constitutional time bomb,"' [FN67] phrases that suggest, but do not fully capture, the depth of Bork's sentiments on the subject. Plainly, Bork believes that this case, andits descendants, violate the very essence of what he is urging in the way of appropriate decision making in constitutional law.
Bork's unhappiness, or outrage, with Griswold stems, he says, not so much from the outcome (though he does describe it and its progeny as symptoms of "'the rampant individualism of the modern era,"' which asserts that "all individuals are entitled, as a matter of constitutional right, to engage in any form of sexual activity"') [FN68] as from the fact that the opinion finds a right, the right of privacy, that is not in the Constitution. [FN69] Now, it is certainly true that the opinion in Griswold bears the unmistakable mark of Justice Douglas' enthusiasm, and that the Court's reasoning might have been stated more clearly. Bork's criticisms go beyond this sort of complaint, though, to involve the assertion that Douglas' action was lawless and unprincipled, as it flew in the face of any conceivable "original understanding"' reading of the Constitution.
Griswold, as most readers will remember, involved a challenge to a Connecticut statute forbidding the distribution of contraceptives. In terms that would do Bork proud, Justice Douglas disclaimed any intent on the part of the Court to "sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic *1063 problems, business affairs, or social conditions."' [FN70] Here, however, he said that the statute in question operated on "an intimate relation of husband and wife,"' necessitating further inquiry. [FN71]
Douglas next looked to the text of the Bill of Rights, saying that:
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice-whether public or private or parochial-is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.
By Pierce v. Society of Sisters the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff)-indeed the freedom of the entire university community. Without those peripheral rights, the specific rights would be less secure. [FN72]
Having found that the Court in the past had found specific rights that depended for their existence on more general statements in the Bill of Rights, Douglas went on, then, to review specific provisions in the Bill of Rights that seemed to protect people in situations similar to married couples in Connecticut (that is, individuals, in their homes, not menacing others). He noted that the first *1064 amendment protects the right of association; the third amendment protects citizens from having soldiers quartered (without consent) in their homes in time of peace; the fourth amendment explicitly affirms the right of persons to be secure in their persons, homes, papers and effects from unreasonable searches and seizures; and the fifth amendment, through its self- incrimination clause "enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment."' [FN73] Douglas additionally noted the ninth amendment's explicit provision that " t he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."' [FN74]
Drawing on all of this, Douglas concluded that the various provisions described above permitted an inference that there existed a right of privacy sufficient to overturn the Connecticut statute. [FN75] Douglas described this right as being formed by the overlap of "penumbras"' from the other enumerated rights and supported by "emanations"' from them. He also asked rhetorically, "'Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" and noted that " w e deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system."' [FN76]
As mentioned, Bork is hardly impressed with Justice Douglas' handiwork, and certainly one could imagine the opinion displaying a greater degree of craft than Justice Douglas actually employed, perhaps omitting the use of unlawyerly sounding terms like "penumbras"' and "emanations."' [FN77] Bork's hostility is not, however, *1065 aimed primarily at matters of style and craft. Rather, he views the opinion as an unprincipled tour de force that makes a mockery of original intent and the notion of judicial accountability to meaningful standards of interpretation, especially those based on original understanding:
Douglas raised the stakes to the sky here by treating Connecticut as though it was threatening the institution of marriage. "'We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system."' The thought was incoherent. What the right of privacy's age in comparison with that of our political parties and school system had to do with anything was unclear, and where the "right"' came from if not from the Bill of Rights it is impossible to understand. [FN78]
Bork goes on to note, "That makes it all the more perplexing that Douglas in fact purported to derive the right of privacy not from *1066 some pre- existing right or law of nature, but from the Bill of Rights."' [FN79]
Bork's criticism of Douglas' analysis of the various Bill of Rights provisions leading to his decision is similarly harsh:
None of the amendments cited, and none of their buffer or penumbral zones, covered the case before the Court. The Connecticut statute was not invalid under any provision of the Bill of Rights, no matter how extended. Since the statute in question did not threaten any guaranteed freedom, it did not fall within any "emanation."' ... Justice Douglas bypassed that seemingly insuperable difficulty by simply asserting that the various separate "zones of privacy"' created by each separate provision of the Bill of Rights somehow created a general but wholly undefined "right of privacy"' that is independent of and lies outside any right or "zone of privacy"' to be found in the Constitution. Douglas did not explain how it was that the Framers created five or six specific rights that could, with considerable stretching, be called "privacy,"' and, though the Framers chose not to create more, the Court could nevertheless invent a general right of privacy that the Framers had, inexplicably, left out. It really does not matter to the decision what the Bill of Rights covers or does not cover. [FN80]
Obviously, Bork believes that Justice Douglas' decision in Griswold is incorrect, a judicial invention not justified by the text of the Bill of Rights. Yet he sees the decision as more than simply a matter of judicial error.
Bork regards the decision as not only wrong, but as a destructive encroachment by the judiciary into areas properly reserved to majority rule. That is, as noted above, where the Bill of Rights does not provide otherwise, Bork believes decisions should be left to the majority to decide through democratic means. And, so long as the Bill of Rights does not explicitly intervene, majority decisionmaking may be based on whatever criteria the majority may choose, whether connected with some general public good or not- moral *1067 disapproval of sexual activity not aimed at procreation, for example. Bork says that because "[t]he stark fact is that the Constitution has nothing whatever to do with issues of sexual morality,"' such matters "are left entirely to the morality of the people of the various states."' [FN81]
Since, in the sphere outside the specific provisions of the Bill of Rights and hence (in Bork's view) reserved to the majority, all interests are equal in the eyes of the Constitution (which is to say that constitutional analysis is equally irrelevant to all), there can be no judicial choosing among different kinds of interests. Thus, Bork says, society's moral disapproval of certain acts is enough to justify limitations on sexual activity, even if there is no other impact on society beyond the offending of those morals:
Suppose that the lawyer for Connecticut in Griswold argued that a majority, or even an intense and politically influential minority, regarded it as morally abhorrent that couples capable of procreation should copulate without the intention, or at least the possibility, of conception. Could the Court demonstrate that this moral view is wrong or that moral abhorrence is not an important and legitimate ground for legislation? [FN82]
The answer for Bork is no, even where the majority's interests are characterized as selfish ones not related to some broader concept of the general good:
The law prohibiting the use of contraceptives impairs their sexual gratifications. The state can assert, and at one stage in the litigation did assert, that the majority of Connecticut's citizens believes that the use of contraceptives is profoundly immoral. Knowledge that it is taking *1068 place and that the state makes no attempt to inhibit it causes those in the majority moral anguish and so impairs their gratifications. [FN83]
Furthermore, since, as Bork has said, there is no ground for regarding the married couple's sexual gratifications as more important than the majority's moralistic ones, a court may not interfere:
In Griswold, there is no way for a judge to say that the majority is not entitled to its moral view.... Knowledge that immorality is taking place can cause moral pain. The judge has no way to choose between the married couple's gratifications (or moral positions) and the majority's. He must, therefore, enforce the law. [FN84]
Now this is pretty strong stuff, even if Bork has made some of these points before. [FN85] It is also, as I will demonstrate, pretty wrong stuff, for the Constitution does in fact provide guidance in just the sort of cases that Bork posits here. Although I am not at all sure that I would characterize Griswold as simply a conflict between the sexual gratifications of couples and the "'moral anguish"' experienced by those who know, somehow, that people are enjoying sex without the likelihood of children, [FN86] I will accept this characterization *1069 for the purposes of argument in order to test Bork's theory on its own ground. I will also demonstrate that in cases so characterized, a court employing the very interpretive approach that Bork advocates could find, should find and probably would find, [FN87] that the Framers, the ratifiers and just about anyone else whose original understanding of the Constitution has any relevance intended to prevent the sort of "moral taking not for public use"' (if I may use such an awkward phrase) that Bork seems to find appropriate.
Bork's idea that it is difficult, if not impossible, to distinguish in any meaningful fashion among the various sources of satisfaction that different people in society may enjoy is not original with him, of course. It is, in fact, a staple of utilitarian theory. Where Bork goes farther than most, if not all, is in explicitly giving equal position to those whose satisfactions come from denying others their satisfactions. Where most utilitarian theorists have worried about the problem of "utility monsters"'-those so constituted as to get so much greater satisfaction ("utility"') than others from consuming a particular resource that under conventional utilitarian calculus they always come out ahead [FN88]-Bork seems to be advocating equal treatment for a certain subspecies of utility monster-whom we might call a "utility vampire"'- who gets satisfaction not from robbing others of something for his/her own use, but simply from denying others the opportunity to pursue satisfaction themselves.
Of course, Bork would require that these creatures of the moral night exist in a political majority-or at least "an intense and politically *1070 influential minority"' [FN89]-before they could work their evil spell. But once they did so, the Constitution would have nothing to say about it and those couples denied their "sexual gratifications"' would have only the alternative of relieving their frustrations in the privacy of the voting booth. Readers of this Article-and of the Constitution-might find it hard to believe that the Framers intended anything like this. If so, they would be right.
The truth is, of course, that the Framers, whoever they may have been, were not the enthusiasts of majoritarian decisionmaking that Bork seems to be. Nor is a reading of the Constitution to the effect that only the specific provisions of the Bill of Rights restrain majoritarian decisionmaking a correct reading-whether as an exercise in textualism, in original intent or simply in competent lawyering. To the contrary, any reading of the Constitution that is faithful to the "original understanding"' and to the text will make it abundantly clear that the Framers did not contemplate empowering legislative majorities to work their will on minorities solely for their own benefit and, indeed, saw their enterprise as preventing just such an outcome even where specific Bill of Rights provisions were inapplicable. [FN90]
A. The Constitution and Majorities
The Framers, of course, were coming out of a period in which state legislatures reigned largely supreme and the will of the political *1071 majority ruled largely unchecked. The result of this period, for the most part, was disaster; hence the need for the Constitution. As a result, the Constitution contained a number of features, even before the adoption of the Bill of Rights, designed to ensure that majority action was far from free- wheeling. An examination of these features will tell us a good deal about the Framers' view of the "appropriate ranges of majority and minority freedom,"' to use Bork's phrase. [FN91]
Some of these checks were structural-the division of Congress into two houses of different composition, for example. [FN92] Already Bork's statement that the Constitution leaves matters outside the Bill of Rights' specific prohibitions to "the majority"' becomes suspect. For a bill to become law, it must pass both the House of Representatives, a majority of whose members, being apportioned according to population, does reflect a majority of the people, and the Senate, a majority of whose members reflects a majority of the states and quite conceivably (both now and then) a distinct minority of the populace- particularly as, in the original scheme, senators were not even elected by the populace of their states. [FN93] The Constitution also provides that bills passed by the Congress shall not become law if disapproved by the President (who is also not popularly elected, properly speaking) [FN94] unless both bills shall be approved again, after their return, by at least two-thirds of each house. [FN95] Furthermore, Congress is further limited-beyond the *1072 constraints above-to the exercise of only enumerated powers. [FN96]
Of course, as regards the Constitution itself (rather than its structural features), "majority rule"' is hardly the rule either. Amending the Constitution, as provided for in article V, requires a substantial super- majority. Amendments may be proposed either by a two-thirds vote in each House of Congress (itself, as noted above, not exactly a majoritarian institution) or by a convention called by two-thirds of the states; in either case such amendments require ratification by three-fourths of the states (acting either through conventions or state legislatures, as Congress specifies). [FN97] But this is not all, for the Constitution specifically puts two items beyond the reach of any amendment at all. One is the importation of slaves (the Framers' careful circumlocution of this word in article V is a mini-lesson all its own in artful drafting) prior to the year 1808, a matter now of historical interest only (though understandably intense to many). [FN98] The other item set beyond any change by amendment is precisely the anti-majoritarian element of Congress that I mentioned above-to wit, article V provides "that no State, without its Consent, shall be deprived of its equal suffrage in the Senate."' [FN99]
Think for a moment what this provision means in practice. If every person in 49 states, and a bare fifty-percent-minus-one minority in the remaining state, thinks that representation in the Senate should be apportioned according to population in the same manner as it is in the House, it cannot happen, at least as to that remaining state. (And, since the state withholding its consent is likely to be a small one that would lose out under a proportional *1073 regime-say, Delaware-its refusal to go along is likely to kill the whole deal). This means that according to the Framers' conception here, the will of virtually every American can be thwarted for the lack of a single vote in a single house of the Delaware State Legislature.
Now, these provisions seem to me to make a "majoritarian"' theory of political and judicial legitimacy under the Constitution already a bit suspect, and even if the constitutional characteristics above are not enough to demonstrate a positive suspicion of majoritarian politics, they certainly do not suggest any particular enthusiasm, along the lines of Professor Bork's, for majoritarianism either. For the purposes of argument, however, I will assume that what Professor Bork really means by his rather loose references to "the majority"' is "a legislative majority"' or "a majority as required by the Constitution, with such exceptions as it makes here and there,"' not a majority of the people, or even a majority of those entitled to vote.
If the structure of the Constitution does not reveal much enthusiasm for majoritarian decisionmaking, specific provisions go farther and seem to suggest at the very least that there are times and subjects-other than those specifically found in the Bill of Rights-for which majoritarian decisionmaking is not thought appropriate. For example, article I, section 9 provides that "'[n]o Bill of Attainder or ex post facto Law shall be passed"' by Congress. [FN100] This presumably reflects a judgment that in matters bearing directly upon an individual's liberty and security the will of the majority is not to be trusted, but that, instead, the judicial branch, with its political insulation and greater impartiality, should decide such matters. [FN101] Similarly, article I, section 10 prohibits the states *1074 from passing such laws as well, and additionally prohibits the states from passing laws impairing the obligation of contracts. [FN102]
The purpose of the contracts clause's prohibition on the states seems to have been to prevent local majorities from oppressing minorities in order to produce benefits essentially private in nature. Bork's favorite expositor, Justice Story, [FN103] explains that the purpose was to ensure that states could not interfere with an obligation that (surprisingly, given Bork's endorsement of Story as a practitioner of original understanding and eschewer of fuzzy-headed noninterpretivism), [FN104] Story explicitly roots in natural law, saying that "' n or is this obligatory force so much the result ... of the municipal law, as of the general principles of natural, or, (as it is sometimes called) universal law."' [FN105] Story then stops to chastise those who have attempted to limit artificially the contracts clause by maintaining (for example) that it does not encompass charters granted by the states:
The great object of the framers of the constitution [in drafting the Contracts Clause] undoubtedly was, to secure the inviolability of contracts. This principle was to be protected, in whatever form it might be assailed. No enumeration was attempted to be made of the modes, by which contracts might be impaired. It would have been unwise to have made such an enumeration, since it might have been defective; and the intention was to prohibit every mode or device for such purpose. The prohibition was universal. [FN106]
Contrary to Bork, Story appears to be saying at the very least that constitutional protections against majority oppression should be *1075 read broadly.
Reading Story further shows Bork's basic theory of majority/minority relations to be in serious trouble, for Story goes on to question whether other similar actions by the legislature might be prohibited notwithstanding the lack of specific prohibitions in the Constitution:
Whether, indeed, independently of the constitution of the United States, the nature of republican and free governments does not necessarily impose some restraints upon the legislative power, has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the trancendental [sic] sovereignty to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property should be held sacred. At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power. The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect. [FN107]
What Story seems to be saying here, if I read him correctly, is that Bork has things exactly backward. Where Bork says that we must read the Constitution as implicitly granting power everywhere that the Bill of Rights does not restrict it (a position that Bork defends as a necessary inference from the structure of government established *1076 by the Constitution [FN108]), Story conceives it otherwise. To him and presumably to the Framers (to whose intentions he is a reliable guide according to Bork), at least where "the rights of personal liberty, and private property"' are concerned, the legislature is not empowered simply to take from one party and give to the other, no matter who has the votes. And Story founds this not on some fuzzy conception of non-interpretivism, but in a simple (and easy to apply) rule of construction, to the effect that the people should not be presumed to have given up rights-especially important ones involving liberty and property- without an explicit declaration to that effect, general grants of legislative power notwithstanding. [FN109]
Thus, even where the Constitution is silent-a case where Bork would have the courts do nothing-Story says that courts should be skeptical, to put it mildly, of the legislature's power to act where the result would be to take liberty or property away without corresponding gains to the general welfare, say for the benefit of "utility vampires."' [FN110] That the "Madisonian dilemma"' is involved seems to trouble this proponent of original understanding [FN111] and contemporary of James Madison not at all.
B. Islands, Seas and Powers of Attorney
This is a serious contradiction. Where Bork sees individual rights as islands in a sea of legislative power, Story sees legislative powers as islands (and artificial ones at that) in a sea of preexisting individual rights, and believes that the courts should be hesitant to conclude that the people have granted those powers indiscriminately. This conflict raises serious problems since Bork purports to derive his own view of majority/minority relations, and of the "original understanding"' jurisprudence needed to police those relations, from the original understanding of the Framers-and since Bork himself identifies Story as a leading practitioner of just the approach he espouses.
Interestingly, Story's position looks more like that of Justice Chase in Calder v. Bull, [FN112] for which Chase was excoriated by *1077 Bork. [FN113] The congruence between these two positions will be made clearer by revisiting what Chase said, without Bork's editorial omissions. The italics in the following passage are mine, not Justice Chase's.
I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the constitution, or fundamental law of the state. The people of the United States erected their constitutions or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the federal, or state legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law, in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded. [FN114]
There is more in this vein, leading Chase to conclude, as Bork emphasizes, *1078 that a contrary assertion "that our federal or state legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments."' [FN115]
Lest I myself be accused of substituting typography for argument, I will elaborate here on what Justice Chase and Justice Story seem to be saying. In essence, it appears to be their position that, since the American revolution and the establishment of "free and republican"' governments at both the state and federal levels, governmental power should be seen as limited to serving those objectives for which the governments were established-security, the protection of personal liberty and property and the promotion of general welfare. Where a legislative act is not intended to serve those functions, because it consists of taking liberty or property from A to give to B without involving some effort to promote the general good, it is outside the power of the legislature and hence is void. Note that despite the language of Justice Iredell quoted by Bork, [FN116] no conception of "natural law"' or "natural justice"' enters into this position-it is, rather, a rule of construction (much as a court might use in construing, say, a contract) based on what the framers of state and federal constitutions intended in establishing those constitutions. [FN117] So think both Justice Story-whom Bork *1079 himself identifies as both a leading practitioner of original understanding and as a leading and reliable expositor of what the Framers meant-and Justice Chase, whom Bork identifies as a leading exponent and practitioner of judicial lawlessness. What is more, Bork's hero, Justice Iredell, also chimes in with something that sounds rather similar:
If, then, a government, composed of legislative, executive and judicial departments, were established, by a constitution which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government any court of justice would possess a power to declare it so....
In order, therefore, to guard against so great an evil, it has been the policy of all the American States, which have, individually, framed their state constitutions, since the revolution, and of the people of the United States, when they framed the federal constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. ... There are then but two lights, in which the subject can be viewed: 1st. If the legislature pursue the authority delegated to them, their acts are valid. 2d. If they transgress *1080 the boundaries of that authority, their acts are invalid. [FN118]
Or, as Iredell had said earlier, before joining the Court, a constitution is "a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given."' [FN119] Thus, although it is impossible to tell whether Iredell, Chase and Story would all agree on precisely what authority might be delegated in a given case, all seem to agree that legislative authority is not generally unrestrained, and that (apart from any consideration of identified rights) where that authority exceeds the objects of the intended delegation it is void. All, in other words, agree that legislative powers are "islands"' and individual rights the "sea"' rather than the other way around, as Bork would have it, and furthermore would look closely to see whether there was a "meeting of the minds"' regarding a claimed grant of legislative power that seems to put important rights of liberty and property at stake. [FN120]
*1081 Now this, it seems to me, goes right to the heart of Bork's theory, and we haven't even gotten to the Bill of Rights yet. Even if Bork's theory is correct as a general guide to interpreting the Constitution, it is patently useless in its (to him) primary purpose as a check on judicial action, since it can lead to results fundamentally incompatible with the analysis undertaken by Bork. After all, if a group as diverse as Story, Chase and Iredell agrees on a view of what the Framers had in mind regarding the roles of majorities and minorities that is exactly the opposite of that held by Bork, then "original understanding"' does not appear to be of much use in determining first principles, let alone results. What is more, Bork's political theory is itself entirely inconsistent with his theory of judicial interpretation, since the "'original understanding"' of the Framers seems-based on what we have just seen-to preclude the sort of largely untrammeled majoritarianism that Bork champions. Furthermore, as Bork himself applies his theory, results are determinable purely by assignments of the burden of persuasion-assignments made without any reference to the intentions of the Framers and, in fact, contrary to the Framers' views on the subject. [FN121] If a theory can produce results over a wide range, as Bork himself says, it is useless as a check on the judiciary, and Bork's own theory certainly seems to fail this test. [FN122] In fact, it has been useless even as a check on Bork himself, since he has managed to manipulate it to achieve the results he wants-quite possibly without even realizing that he was doing so. However, in case it is not yet entirely clear just how little there really is to his approach, at least in terms of what he thinks it is good for, I will *1082 revisit the case of Griswold v. Connecticut [FN123] in these terms.
If, as Robert Bork would have it, interpretation without narrowly formal restrictions is a red-cloaked siren tempting scholars and judges to their ruin, then I must remind him of what Christ said to the onlookers in the Gospel's recounting of Mary Magdalene's rescue: "He that is without sin among you, let him cast the first stone."' [FN124] Bork identifies the Griswold case and its progeny as the premier examples of judicial seduction, and yet (as we have seen) close examination of his analytical collar and tie suggests that he has been engaging in a bit of scholarly dalliance of his own. With this in mind, perhaps a second look at Griswold is in order.
Bork, you will recall, attacked the Griswold opinion in rather intemperate terms. Without repeating either the various epithets that Bork applied to the case, or my earlier discussion of it, [FN125] I will briefly revisit what Douglas did. First, he noted that the Court lacked power to review policy decisions of the legislature that applied generally to matters such as economic problems, business affairs or social conditions. [FN126] In the instant case, though, he noted that what was at stake was an "intimate relation of husband and wife,"' so that the legislature's action could not be upheld without further analysis of its legitimacy. [FN127] He next looked at various provisions of the Bill of Rights that seemed to bear on similar situations-privacy, the home, etc. [FN128] Then he quoted the ninth amendment, which provides that " t he enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."' [FN129] In light of the above, he concluded that the Connecticut legislature was without power to pass a law that prohibited contraception, because doing so would interfere with the right of privacy. [FN130]
If this sounds interestingly like what Bork's favorite originalist, *1083 Joseph Story, said in the passage quoted a bit earlier, [FN131] it is with good reason. While most would agree that Douglas' strengths as a Justice lay more in the areas of intuition and vivid prose style than in analytical rigor, and while the language about "penumbras"' and "emanations"' seems to cast shadows more than it illuminates, a good argument can be made (heck, I'm making it right now) that what Douglas was really doing was trying to determine whether the state government could be presumed to possess (in Story's words) the "transcendental sovereignty"' to invade the "sacred"' right of liberty in this fashion, [FN132] or whether " t he people ought not to be presumed to part with rights, so vital to their security and well-being"' as the right to decide whether or not to have children (or sex), "without very strong, and positive declarations to that effect"' going beyond any general delegations of legislative power. [FN133] As additional evidence, I note Douglas' quotation of the ninth amendment, which to my mind commands just the rule of construction propounded by Story. [FN134] In this regard, Douglas' reference to the *1084 fact that the liberty in question predated the Bill of Rights and the Constitution is not "incoherent,"' as Bork would have it, [FN135] but entirely relevant in assessing whether it is the sort of liberty that people ought to be presumed not to have parted with through general delegations of legislative power, whether at the state or federal level. [FN136]
*1085 Note that if this is the case, Bork's criticism falls apart entirely. We have already seen that the Constitution on its face rejects his equal-rights-for-utility-vampires construction. And we have seen that the Framers understood the scope of legislative power, and the means of determining it, much differently than does Bork. Now we see that his original understanding philosophy, conscientiously and rigorously applied, actually supports the decision in Griswold, particularly when we refer to the commentator, Joseph Story, whom Bork himself holds out as a leading practitioner of, and authority on, original understanding. Such contradictions demonstrate that "original understanding"' jurisprudence isn't much good at constraining results even when applied by Bork himself. These are problems that are serious-in fact fatal-when judged according to Bork's own pronounced methods of testing theories for legitimacy, and suggest that Bork's argument, though vigorous, has generated far more heat than light. Further examination of what the Framers might have said about the issue in Griswold (at least as that issue is characterized by Bork) should make this still clearer.
*1086 A. Griswold: The New Generation
Of course, as a teacher of constitutional law it is my professional duty to maintain that I could-if allowed-improve on virtually any Supreme Court opinion, a sentiment with which Professor Bork will surely sympathize. Thus, were I given a license to revise Griswold to be more in line with the original understanding of the Constitution, I would not change the outcome (which, as I have said, is entirely consistent with a reasonable construction of original intent as is), but might add a few points as follows.
Remembering that, in Bork's characterization, the case is about the ability of a majority to obtain moral satisfaction by preventing minority activities of which it disapproves, notwithstanding the lack of any tangible adverse impact of these activities on others, I would look first at the text of the Constitution. Reading it in order, I would first notice the preamble. [FN137] It is true, of course, that the preamble is not generally regarded as having binding legal effect-Bork characterizes its language as "entirely hortatory and not judicially enforceable"' [FN138]-but surely it is there for some reason. After all, in construing contracts or wills, courts certainly pay attention to the purposes set out in their recitations, and (if we are to act as lawyers) we can do no less with regard to what is part of our most important document. Moreover, since we have seen that the Framers believed that the scope of legislative power granted by a constitution, like the reach of a contract, is determined by the ends that its parties had in mind, the part of the Constitution that states those ends certainly ought to be worth looking at-particularly if we are construing the Constitution in the same fashion as a contract or will, as Bork would have us do.
I am not the only one to think the preamble important-Justice Story devotes an entire, rather lengthy, chapter to it in hisCommentaries. [FN139] Story's views on the importance of the preamble are much closer to my own than to Bork's:
The importance of examining the preamble, for the purpose of expounding the language of a statute, has long been felt, and universally conceded in all juridical discussions. *1087 It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute.... There does not seem any reason, why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble. And accordingly we find, that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions. [FN140]
Thus, being content to remain on the side of the "statesmen and jurists,"' I will quote the preamble in full:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. [FN141]
So what does this tell us about the "originalunderstanding" of whether Connecticut moralists should be able to prevent others from using birth control simply because the idea bothers them? [FN142] Well, to begin with, in light of their experience with the "excesses of democracy"' during the period between the Revolutionary War and the adoption of the Constitution, it seems doubtful that the Framers would regard a "more perfect union"' as one that permitted such laws. "'Winner take all"' majority rule, as we have seen, *1088 was hardly what the Framers had in mind. [FN143]
We will (with some misgivings) pass over the term "Justice,"' which Bork assures us is not intended to mean anything of substance, [FN144] and look at the term "ensure domestic tranquility."' Justice Story informs us, and all sources seem to agree, that one of the main concerns of the Framers was the minimization of disputes growing out of what they called "faction."' [FN145] "'By a faction,"' Story says, "we are to understand a number of citizens, whether amounting to a minority or majority of the whole, who are united by some common impulse or passion, or interest, or party, adverse to the rights of the other citizens, or to the permanent and aggregate interests of the community."' [FN146] Story goes on to note that
[i]f a faction be a minority, the majority may apply the proper corrective, by defeating or checking the violence of the minority in the regular course of legislation.... But if the faction be a majority, and stand unchecked, except by its own sense of duty, or its own fears, the dangers are imminent to all those, whose principles, or interests, or characters stand in the way of its supreme dominion. [FN147]
So far, a grant of untrammelled power to the moralistic majority of Connecticut seems to be in conflict with the Framers' intent since, by Bork's own characterization, it is a group, united by some passion or interest, adverse to the rights of other citizens. If the preamble means what that noted originalist Joseph Story says it does (and what I believe it does, though Bork no doubt would find my opinion less persuasive), then the idea that one group of citizens, simply because it is in the majority-or at least is an "intense *1089 and politically influential minority"' [FN148]-can, consistently with the original understanding of the Constitution, legislate against an activity of a minority not for any general public good but in order to satisfy its own selfish moralistic cravings (these being indistinguishable on any principled basis, according to Bork, from the "sexual gratifications"' of the couples whose contraceptive use is outlawed) [FN149] seems outlandish, as does a view of majority/minority relations that explicitly endorses such an outcome. Thus, an "'original understanding"' version of Griswold might easily invoke an antifactionalist reading of the proper scope of legislative powers along its way to striking down the Connecticut statute.
Furthermore, if maintaining "domestic tranquility"' remains important (and I mean no pun here), a ban on contraceptives is not the way to do it. If one accepts Bork's characterization of the law, the minority is undoubtedly going to be aware that it is being pushed around-in a particularly intimate and affecting way-by the majority for no reason other than the majority's private gratification. [FN150] That is hardly likely to promote public spiritedness, "'domestic tranquility"' or an absence of factionalism, and argues against a reading of the Constitution that would permit such legislation, which is arguably what Douglas meant in talking about the special consideration due intimate affairs as opposed to matters of social and economic policy. [FN151] So far, Douglas' approach in Griswold is looking better, and Bork's is continuing to do poorly.
Skipping over the part about "common defence,"' which seems to me to have little to do with the question at hand, [FN152] we come next *1090 to the language about promoting the "general welfare."' This language seems to me, and to Justice Story, to relate primarily to the superior power of a single, unified government to deal with such matters as international trade and commercial regulation. [FN153] I would note, though, that the language is "'general welfare,"' not "the welfare of whoever is on top politically at the moment."' In this regard, it is significant that Congress is forbidden, for example, from favoring any particular state or port in the regulation of trade, notwithstanding that majority interests might desire it. As the Constitution says, "No preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."' [FN154] This suggests that "general welfare"' means general welfare. Read together with, say, the takings claus s in the fifth and fourteenth amendments (about which I will say more in a moment), this reading seems to be responsive to our question in suggesting that general welfare is more than just what the legislature says it is at a given moment-which would be mere tautology. Thus, were I rewriting Griswold in response to Bork's argument, I might rest part of my revision on the idea that legislatures simply are not empowered to advantage one group at the expense of another merely for some private gain to the group in power, and in doing so, I could draw on this provision as evidence that this was the Framers' understanding.
We are finally faced with the last clause in the preamble, "to secure the blessings of [l]iberty to ourselves and our [p]osterity."' What could the Framers have meant by this? They might have meant simply whatever liberties people had under their state constitutions. On the other hand, the preamble does not say that; it says "we the people"' want "to secure the blessings of liberty."' Note that it does not say that "we the people of various states,"' desire "to hold on to the liberty we have."' It says that "we, the people of the United States," that is all Americans, want to "secure" the blessings of liberty "to ourselves and our posterity."' Although I admit that there is room for debate here, and this matter *1091 is hardly necessary to my general point, to me the preamble says that the existing liberties are not enough and that that is why the Constitution is adopted. And the mention of "our posterity,"' along with the generally prospective language of the preamble, [FN155] suggests to me that the Framers are taking the long view as to what "'liberty"' may come to mean. [FN156]
Having already discussed a number of provisions in the main body of the Constitution that seem, to me at least, to undercut Bork's political theory and that also tend to support the approach taken in Griswold, and having discussed as well Justice Douglas' treatment of the Bill of Rights and the ninth amendment in that same case, I will out of mercy to readers refrain from analyzing them in more depth here, though I think that there is room to do so. [FN157] Instead, I will touch briefly on the part of the Constitution that seems to me to shed particularly useful light on Bork's characterization and Douglas' disposition.
B. Moral Takings
Somewhat earlier, the reader may recall, I used the term "moral taking not for public use"' [FN158] to describe the Connecticut birth control statute, at least as characterized by Professor Bork. Although I have already explored that conception somewhat in terms of the contracts clause, I believe that the most useful way of viewing Bork's problem is in the context of the takings clause. That clause (contained in the fifth amendment and applicable to the states through the fourteenth) provides that property shall be taken only for public use, and only where just compensation is paid. [FN159]
*1092 The point of the takings clause is fairly obvious, though its application can become complex. Basically, though, it is intended to ensure that the political majority does not make use of its position to rob minorities of their interests through the exercise of raw power. [FN160] The "public use"' requirement means-or at least was intended to mean, which is just as good for our purposes-that whatever is taken must be seized for the benefit of the general public, not for the benefit of private interests. The compensation requirement serves two distinct but related purposes: first, it ensures that those whose property is taken are compensated, at least for the economic value of what is taken. Second, it ensures that the exercise of political power at someone else's expense is not costless to the majority; the majority must pay out money, which requires either foregoing other government activities (and paying the political and economic costs thereof) or raising taxes (and paying the political and economic costs thereof). [FN161] Based on the Constitution as a whole, along with other things that they wrote, the Framers appear to have been sufficiently shrewd judges of human character to know that people's enthusiasm for all sorts of activities (especially, I would suspect, moral crusading) often proves astonishingly *1093 thin once it is clear that they will receive a bill at the end.
Yet in Bork's version of Griswold the majority gets something for nothing. For the trivial cost of passing a law, it is able to enjoy a wonderful sense of moral gratification, while the costs of that gratification are borne entirely by the couples who are unable to use contraceptives. Is it unreasonable of me to say, particularly in light of all the foregoing, that the Framers would probably have looked askance at this kind of transaction, and probably, as Justice Story suggests, [FN162] would have regarded such an action, for such a reason, as outside the power of a legislature in a free society? I don't think so. Although Justice Story might have made these points more explicitly and thus have written a better opinion than did Justice Douglas, from an "original understanding"' perspective the outcome would likely remain the same.
Notice also that in keeping with Bork's prescription I have a neutral principle here: Where a majority, to satisfy its own sense of morality, intrudes into the lives of individuals regarding activities that do not create any cognizable non-moral harm, such an activity is a "moral taking not for public use"' and should be regarded as outside the power of a legislature in a free society. As Bork requires, the principle is derived from the Framers' understanding of what the Constitution was about, [FN163] and it should be entirely possible to apply it in a scope and manner consistent with that understanding without encountering the problems that Bork sees in the context of Shelley v. Kraemer. [FN164] Indeed, it would appear that Justice *1094 Douglas has done so, if imperfectly, in Griswold. [FN165] Yet despite applying Bork's methods and relying strictly on his sources, I (arguably along with Justice Douglas) have developed a principle, and reached an outcome, precisely opposite to that advocated by Bork. What this means, of course, is that the judicial paradise that Bork seeks is unattainable, at least in this world.
I have made two key points thus far: first, that Bork's majoritarian political theory-that the Madisonian dilemma requires *1095 that judicial review of statutes be limited to narrowly-drawn areas within the Bill of Rights-is inconsistent with his judicial theory that judges must follow the original understanding of the Framers. And second, that Bork's judicial theory does not mandate the outcome he says it does in Griswold but, instead, supports the outcome reached by Justice Douglas, though this seems to have escaped Bork's notice.
As to the first point, it is no surprise that Bork's judicial theory and his political theory are incompatible. The very nature of the Madisonian dilemma means that one cannot have both majoritarian rule and judicial review without potential for conflict. That is why it is a dilemma, and no theory-whether based on "original understanding"' or quantum mechanics-can make it go away, at least not without changing the Constitution or our society beyond recognition.
The second point, to me, is a bit more curious. I find it difficult to see how Bork can so misunderstand things. Perhaps he can be excused from misreading Griswold, which is hardly a model of clarity, though I find it difficult to see how someone as steeped in originalism and the works of Justice Story as Bork makes out to be can miss the boat so completely. Although I will agree that Justice Douglas could have written the opinion more clearly, there is certainly enough there for any "original understanding"' scholar to follow to its conclusion if she really wants to. I can only conclude that Bork, whether consciously or unconsciously, did not want to, as he does not raise, even to reject, the issues I have mentioned.
Of course, it may be that I am simply wrong, and that my reading of Griswold is incorrect. But that does not help Bork at all-in fact, it hurts his case rather badly. For if someone employing the tools of "original understanding"' as Bork himself describes them (and please note that I have stuck entirely to sources that Bork specifically approves and have not attempted to wallow in the endless mire of secondary sources, many of dubious validity, that are available under Bork's own prescription) can reach a result so thoroughly out of phase with that of Bork himself, then the theory is of little use in determining outcomes and, hence, in constraining judges to their constitutionally-defined role. The Madisonian dilemma remains.
*1096 A. Some Realism About Originalism
If the Madisonian dilemma remains, and rather obviously so, even in the face of "original understanding"' jurisprudence, how can Bork maintain otherwise with such confidence? Does he in fact know better, and is he simply lying [FN166] in order to reach the particular results that he does? It would be tempting to conclude so, and God knows that at this point in history the seductive appeal of cynicism has become well-nigh irresistible. I will resist, however, because I believe the reason to be otherwise. Early on, [FN167] I mentioned that Bork seems to see himself in the role of prophet, leading America away from the temptations of academic liberal-elitism and toward the path of majoritarian righteousness. Alas, the problem with being a prophet nowadays is that God (perhaps embarrassed by the crimes committed in His name over the years) does not make His presence as available to His instruments as He once did.
Bork, however, is not the sort to let minor problems stand in his path. In the absence of burning bushes in the libraries of the Yale Law School, the D.C. Circuit and the American Enterprise Institute, Bork has chosen to pursue our salvation in another way: through his doctrine, he seeks a kind of substitute god capable of generating the kind of answers he requires. Since, Roberto Unger's pleas notwithstanding, God will not speak and tell us what is right and what is wrong, [FN168] Bork substitutes the holy ghosts of the Framers. Indeed, he is almost explicit about what is going on:
Even if evidence of what the founders thought about the judicial role were unavailable, we would have to adopt the rule that judges must stick to the original meaning of the Constitution's words. If that method of interpretation *1097 were not common in the law, if James Madison and Justice Joseph Story had never endorsed it, if Chief Justice John Marshall had rejected it, we would have to invent the approach of original understanding in order to save the constitutional design. [FN169]
With this construction in mind, even Bork's ordeal before the Senate (which occupies a substantial portion of his book that I have not addressed) and the inclusion of that narrative in a book purportedly about constitutional interepretation, become understandable. All prophets, at some point, must be rejected and humiliated by the very masses whom they are trying to save. [FN170] Bork certainly sees himself in that role, and he predicts an Armageddon yet to come:
If the philosophy of political judging is heresy in the American system of government, it is the orthodoxy of the law schools and of the left-liberal culture. I would have done well to remember that in the old days nobody burned infidels, but they did burn heretics....
... That battle is over, but the war in both our legal and general culture goes on. There will be more blood at the crossroads where law and politics meet. [FN171]
With this in mind, the reason for Bork's otherwise puzzling view of *1098 Griswold-and of the constitutional role of majorities generally-becomes clear. One cannot expect a man who has gazed on the face of God (even, or perhaps especially, when the god in question is one that he has built himself) to see the things of our fallen world very plainly, especially when they seem to contradict understanding from on high.
It won't work, of course. Arthur Leff wrote eloquently and repeatedly about just this phenomenon in contemporary legal scholarship-the effort to derive from within the system of legal thought a way of objectively judging it from outside. As Leff said:
[M]uch that is mysterious about much that is written about law today is understandable only in the context of this tension between the ideas of found law and made law: a tension particularly evident in the growing, though desperately resisted, awareness that there may be, in fact, nothing to be found-that whenever we set out to find "the law,"' we are able to locate nothing more attractive, or more final, than ourselves. [FN172]
That Bork should flee from this notion is understandable; that setting up a substitute god in his own image must fail is inevitable. The Madisonian dilemma exists because we want two different, and incompatible, things: rule according to principle and rule according to will. [FN173] In this fallen world, at least, one cannot have both. That is why Bork's theory-and all like it that are made to carry the same weight-must ultimately fail.
So what do we do? That, not to put too fine a point on it, depends. If we wish to escape the Madisonian dilemma, I fear that the only answer is to emigrate to nations lacking either judicial review or democracy, or to get rid of one or the other at home. I recommend against the latter course. Readers will note that no *1099 complaints about such dilemmas have emerged from the Soviet Union-though that might change, and if it does it will be a sign of progress, not a cause for despair.
Instead, we might simply learn to live with the Madisonian dilemma, and even to find it a valuable source of creative tension that is worth any minor threat it may pose in the way of government by judiciary. My rather discouraging conclusion about the usefulness of theory in constraining judges does not by any means imply that judges may not be constrained in other ways that are effective enough, and at least as valid. The Framers themselves provided some ways of doing just this, and if the mechanisms that they prescribed are not airtight, they may nonetheless be considered adequate to the task at hand when it is remembered that-for all the talk about "judicial tyranny"' in the law reviews and on the political talk-show circuit-a search in the real world will turn up no real judicial tyrannies, but a wealth of more traditional varieties of oppression.
Certainly what the Framers did provides some insight into their views of the Madisonian dilemma, and appropriate ways of dealing with it, that Bork completely overlooks. Let us imagine that the Framers, being for the most part practical sorts drawn from the ranks of commerce and politics, considered and dismissed the prospect of constraining judges through theory. Perhaps they were smart enough to recognize the futility of such efforts, or perhaps-not being law professors-they simply lacked any very strong predisposition toward the theoretical. [FN174]
For whatever reason, though, if they distrusted theory they might have had more confidence in their own ability to judge human beings and to recognize those whose characteristics made them unfit for judicial duties. After all, politics, commerce and the practice of law all demand a familiarity with human nature, and just as law professors might look first to the kinds of things that we are used to judging-doctrinal rigor, theoretical consistency, length and number of footnotes-so those in more practical *1100 spheres might look to matters which they feel comfortable judging, such as honesty, firmness of character and open-mindedness. If the Framers trusted their own abilities in that regard, they might well have felt that in general the political and commercial types who would likely make up the Senate could be trusted to evaluate those kinds of qualities as well. [FN175]
Believing this, and perhaps believing that a good theory in the hands of a bad judge might do more damage than a bad theory in the hands of a good one, the Framers might have been expected to put more emphasis on the character and quality of the judiciary than on the theories that judges were to employ. And, in fact, that is exactly what they did. Although the Constitution sets out the character of the judiciary and the procedures by which its members are to be appointed, compensated and removed, the only guidance provided on the question of construction appears, interestingly enough, in the ninth amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."' [FN176] And that guidance is rather specific.
By contrast, the question of by whom the Constitution is to be construed receives considerably more attention, something thought fitting by none other than Justice Story himself. Story said that the Framers intended the judiciary to protect against majoritarian excesses, since otherwise the "people would thus be at the mercy of their rulers, in [both] the state and national governments; and an omnipotence would practically exist, like that claimed for the British Parliament."' [FN177] But for this protection to be meaningful, the judiciary must be honest, firm-willed, open-minded and wise. Story went on to say:
The judiciary must be so organized, as to carry into complete effect all the purposes of its establishment. It must possess wisdom, learning, integrity, independence, and firmness. It must at once possess the power and the means to check usurpation, and enforce execution of its judgments. Mr. Burke has, with singular sagacity and *1101 pregnant brevity, stated the doctrine, which every republic should steadily sustain, and conscientiously inculcate. "Whatever,"' says he, "is supreme in a state ought to have, as much as possible, its judicial authority so constituted, as not only not to depend upon it, but in some sort to balance it. It ought to give security to its justice against its power. It ought to make its judicature, as it were, something exterior to the state."' The best manner, in which this is to be accomplished, must mainly depend upon the mode of appointment, the tenure of office, the compensation of the judges, and the jurisdiction confided .... [FN178]
Thus, it is fair to say that the Framers did, in fact, believe that the judiciary was an important check against tyranny on the part of the political branches, that tyranny by the judiciary was on the other hand not much of a threat, and that to the extent that it was a threat, the best check against judicial tyranny was to be found in the appointment process [FN179] and its scrutiny of an appointee's qualifications, particularly in terms of character, independence and integrity. Since these are the sorts of things that the political branches, the executive and the legislative, are well equipped to evaluate, it is not surprising that the Framers assigned the process of nomination and appointment to them. Yet if this is all so straightforward, it is difficult to reconcile with Bork's rather different view of the process.
It should be pretty obvious where this is leading, so I will try to be brief. In short, Bork's confirmation hearings, though admittedly something of a circus, nonetheless represented a serious inquiry into just these kinds of questions: temperament, open-mindedness, integrity. They also demonstrated a great deal of interest in the results of applying his theories. Yet Bork in his book makes clear that he believes the hearings should have focused on his (undisputed) intelligence and in particular on his judicial philosophy. Bork does not deny that his judicial philosophy was discussed, but rather maintains that the Senate got things wrong:
*1102 I was now to learn that there is no possibility of an adequate judgment of judicial philosophy by a group of Senators, nor is that fact surprising. Aside from my years as a judge, I had spent decades analyzing and assessing courts and their performance in a wide variety of contexts. Senators, even the best of them, and the best are very good, simply do not have much experience with constitutional law, either as practitioners or professors. [FN180]
Well, yes. That is why, as I mentioned above, the confirmation process is not properly understood as a technical inquiry into theoretical matters. Such an inquiry is far more appropriate to those who, as Bork notes, have the experience and predisposition for such matters, such as law professors and judges. The Framers, however, did not place the confirmation process in the hands of law professors and judges. Assuming as we must that they knew what they were doing, the Framers by placing the confirmation power in the hands of a political branch must have intended it to act like a political branch. Certainly Bork, who has thought about these matters a great deal, does not suggests that the Framers had something else in mind.
What does it mean to "act like a political branch?" In terms of modern, interest-group political theory it simply means responding to constituent pressures. Bork certainly would not accuse the Senate of failing to do that. But even if one maintains (as I am not entirely certain that Bork would) that the senators were themselves bound by the intent of the Framers in considering Bork's nomination, it seems clear that such consideration properly involved concerns other than judicial philosophy and intelligence. Without going into the merits of the many charges made against Bork (some of which admittedly were unfair), the senators did in fact consider a number of issues of the sort that an "original understanding"' approach, as set out above, would make relevant.
To put matters simply, the most important question is whether a nominee can be trusted to judge fairly, impartially and on the basis of the case before her. In Bork's case, the very rigidity of his theories might have been thought to call that question into doubt, for if, as he says, the theory determines the result, then there is no *1103 constitutional case that he has not prejudged in some sense. Senators, being (as Bork rightly notes) not the best-suited for evaluating constitutional theories, can thus be excused for being doubly suspicious-first, of whether a judge by adopting such a mechanical theory has not in some sense abdicated the judicial role, and second, of the theory itself, which (according to Bork) will determine results and yet which they are by virtue of experience and inclination poorly suited to evaluate. And the senators may have felt that some of Bork's statements (the famous "confirmation conversion"') betrayed a willingness to compromise his principles that suggested a deficit of the very integrity, firmness of character and willingness to resist political pressure that (as noted by Story) are so essential to members of the federal bench in general and the Supreme Court in particular.
Leaving the nominee's character aside, the confirmation process also might rightly be seen as bringing the political branches into play precisely to focus attention on results as well as theory. Any theory, however well- grounded, will from time to time inevitably produce results that seem intuitively wrong, and in a democracy, as Bork should agree, perhaps the voters' intuitions deserve some role-a role that they clearly played in Bork's case. This may not be so bad. As Story himself says, in a passage quoted with approval by Bork, "'A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation."' [FN181] Perhaps this was what the Framers had in mind when they placed judicial appointments in the hands of the political branches; given the alternatives, it certainly seems like an adequate response (though by no means a cure) to the Madisonian dilemma. Bork, however, plainly sees concerns about the specific results of applying his theory as unprincipled and improper. [FN182] It is difficult to see why this should be so.
In examining Bork's arguments, I have come to two conclusions. The first is that theory is of dubious value in constraining results. I believe that I have adequately demonstrated this point by showing two rather crucial instances in which Robert Bork and I have come *1104 to starkly different conclusions on the same questions, despite employing the jurisprudence of original understanding and relying on the same sources. One may accuse either (or both) of us of dishonesty or incompetence, but that does not undermine the conclusion, for if a theory cannot stop an unscrupulous or tricky judge-much less one who is simply confused-from reaching the result she wants, it is of little use in protecting democratic values. [FN183] We do not really need theory to constrain the good judges.
And that, of course, is the second conclusion. There is no escaping the Madisonian dilemma, but it appears in its sharpest form only if one's view of the actual system of judicial review-and of democratic politics-is peculiarly focused. The Constitution, after all, sets up an entire structure of government. Within that structure, judicial review is very important, but not nearly as important as it may seem to those of us who spend most of our time watching what courts do. [FN184] The judiciary really is the least dangerous branch, and the worst imaginable judicial tyranny is likely to be of far less consequence than even an ordinary, middling tyranny by the other branches. The courts may frustrate particular, specific goals of the majority, but that is about all, and it is a far cry from concentration camps, censorship, late-night visits by the secret police *1105 and the other accoutrements of real tyranny.
Furthermore, when the actual operation of the system is taken into account, it is pretty obvious that we are a long way even from the judicial tyranny that Bork fears and proclaims. Griswold, for example, is in fact a rather popular opinion-so popular that when word went out that Robert Bork was against it, his fate was largely sealed. [FN185] And to the extent that we remain worried about judicial tyranny, we have the confirmation process as an additional line of defense, a process that in part is designed to weed out potential judicial tyrants, and one that is likely to do a much better job than reliance on theory. So while the Madisonian dilemma remains a dilemma, it is perhaps not a very important one.
A. The World as We Know It (I Feel Fine)
Does this mean that everything is for the best in this best of all possible judicial worlds? Of course not. And a good thing, too, for those of us who write law review articles. [FN186] But things really aren't that bad, in this pretty-good world, and where they are bad it certainly isn't because minorities are getting too much constitutional protection. So before we buy the cure that Bork and others of his ilk are peddling, perhaps we should ask ourselves, "Are we really sick?"
I think the answer is "no,"' [FN187] and that before we accept the *1106 rather strong medicine that Bork offers we should think long and hard about why he is selling it, and what the side-effects are likely to be. Bork's repeated assertions that his confirmation, and legal scholarship in general, should be understood as a "war"' (perhaps even a holy war) between the forces of righteousness (Bork et al.) and the forces of lawlessness, promiscuity and judicial totalitarianism [FN188]-especially promiscuity [FN189]-suggest that he has abandoned the judicial/scholarly temperament on this issue more or less completely. Instead, Bork has mobilized for total war with the "adversary culture"' of the 1960s, the culture that, he says, remains that of "cultural revolutionaries, but now they occupy positions from which they can heavily influence and alter the general culture, and they have."' [FN190]
Well, I would have thought that members of the 1960s generation have the same right to influence the "general culture"' as anyone else, but Bork doesn't seem to see it that way; to him, this is "cultural war"' [FN191] and not just politics as usual. In war, however, truth tends to be the first casualty, and so it is here. For although Bork maintains at points that he merely believes that judges should "follow the law"' and not their own personal opinions, [FN192] his *1107 other remarks-and his rather odd way of applying his theory without even considering (as I have suggested in this paper) that it may, and indeed must, cut the other way at times-suggest that consciously or unconsciously his agenda is not so very different from that which he imputes to his adversaries. Perhaps it takes one to know one.
Thus, the medicine that Bork offers may really be intended to treat Bork himself, and not the Constitution. Like many of his sympathizers-Allan Bloom, for instance [FN193]-Bork appears to have been so traumatized by the change and disorder of the 1960s that he is still attempting to get over it. [FN194] For his sake (and ours), I hope that he does, and that they all do. But Bork and those like him should recognize that the fault they are treating lies not in the Constitution, but in themselves.
That being the case, I believe that we should forego Bork's prescription, given the rather drastic costs of adopting it as opposed to the dubious benefits that it would provide. I am not really sure what adopting Bork's theory, as he understands it, would involve procedurally. Would we set up a special review board composed of law professors to ensure that Supreme Court opinions are consistent with the original understanding? Would we confirm only judges who said that they practiced original understanding? How would senators (admittedly weak on such matters) know if the appointees in question were telling the truth? Would judges who did *1108 not practice original understanding be impeached? If so, how would the Senate, whichtries impeachments, deal with the fact that (as Bork stresses) it is ill-suited to judge matters of constitutional theory? I don't know the answers to these questions, [FN195] but if "original understanding"' is to play a meaningful role in disciplining judges, it must be more than just a rallying-cry for those unhappy with what the courts have been doing: it must have teeth.
What I do know is that there are two possible outcomes in terms of substance, as opposed to procedure, of adopting an original understanding approach. In one scenario, some future Supreme Court adopts Bork's version of original understanding and uses it to strike down most of this century's Supreme Court decisions expanding individual liberties-from Shelley to Griswold to Roe. I do not think I exaggerate when I say that the result would be near-civil war, a set of upheavals that would make those of the 1960s, which apparently so traumatized Bork and Bloom, look mild by comparison. Would the Framers, who wanted to ensure domestic tranquility, wish to inflict such social upheaval for largely theoretical reasons? It seems unlikely.
The other possibility is that a future Supreme Court would adopt my version of original understanding, meaning that most of those same decisions would be upheld, though perhaps on different grounds. I would certainly find such an outcome gratifying personally, particularly if proper credit were given, but its substantive impact would otherwise be minimal, and certainly no additional judicial discipline would be imposed thereby.
In fact, as I believe I have demonstrated, no additional judicial discipline would be imposed by the adoption and honest implementation of "original understanding"' jurisprudence under any circumstances. Bork feels otherwise, but he is able to maintain so only through the hoary trick of slipping the desired conclusion in among the definitions, axioms and assignments of burden so as to produce, as if by magic, the desired result at the end. [FN196] Bork is hardly the only one among his colleagues to engage in this practice, *1109 which Arthur Leff has called "smuggling normatives,"' [FN197] nor are such practices limited to those of Bork's political views-though they have certainly been popular in those circles over the past couple of decades. [FN198] But such techniques tend to be persuasive mostly when preaching to the choir.
B. The Good News and the Bad News
At the outset I promised to draw conclusions both encouraging and discouraging about the contemporary climate of constitutional scholarship, and here they are. The encouraging part is that the practical impact of all the result-oriented scholarship in constitutional law over the past decades (of which there has been a great deal) [FN199] has been surprisingly small. No school of thought has by any means won out, and few other than the willingly credulous have really been convinced that any particular school is as "'objective"' as it claims. This remains true, and although Bork's book has sold very well, it is thus unlikely to convince anyone who is not already more than half-convinced anyway.
The discouraging part is that the best that I can say about a large chunk of contemporary constitutional scholarship is that it has largely been ignored. Given the substantial investment of human and intellectual capital in this enterprise over the years, one might wish to be able to say more in its defense than "things are much better than they would have been if some of us had been listened to."' Perhaps this is unfair, but then perhaps not.
Certainly the quest for grand theories seems to have been motivated more by results than by any inherent constitutional imperative. [FN200] *1110 As I mentioned, apart from the ninth amendment the Constitution provides little guidance on methods of construction, [FN201] nor do the day to day requirements of judging demand the sort of constructs often peddled in the name of grand theory. And it may well be that all grand theory in law is in fact doomed to be useless in terms of either predicting or seriously constraining results or principles, just as, in the physical world, even thefar-more-inexorable laws of physics do not allow precise prediction or control of even quite simple physical phenomena at times. [FN202]
None of this, however, means that Bork's approach is worthless, except on his terms. In fact, in a mild sort of way I agree with the approach of interpreting the Constitution according to some notion of an "original understanding,"' in much the form that Bork propounds. But I do not believe in "'original understanding"' because I think that such an approach can carry the weight that Bork piles on top of it. To my mind, the reasons for interpreting the Constitution as law have to do not with our politics, but with ourselves. Like it or not, we are lawyers. The Constitution is law, and what lawyers do with law when they have a question is, mostly, to interpret it by applying legal methods. This does not mean that other approaches may not be useful sometimes, but we should not forget who we are, or what the Constitution is, or why both it and we are thrust together, and have been for so long. Remembering this may not save us-assuming that we need saving-but it may do some good nonetheless.
Why have rules if they don't constrain results? There are a lot of *1111 reasons for rules, and determining outcomes is only one, and not necessarily the most important. In fact, in many settings, rules have the opposite effect: they can set us free precisely because of the structure that they impose. This is certainly true in music, and is particularly clear in my favorite musical genre, the blues, as a leading guitar text points out:
Funny thing about the blues. It has a very fixed structure compared to other kinds of music. That makes the mystery! Within its strict confines there is tremendous freedom. One of the greatest things about the blues is its simple form, that hides itself so many ways. The goal of the blues artist is to find new and different life in the form despite repetition of the pattern in song after song.
Now when I say simple, I don't mean easy. I mean that the basic outline of the form is recognized by both musician and listener. The craft of filling in the form creates a common bond among all blues people .... This accounts for many chance meetings at studios where one blues musician would happen to run into another in the hallway and in the matter of a few minutes, make an historic first-cut record that stays with us forever.
What I'm getting at-there isn't a tremendous middle ground for the artist. He is firmly held into the changes, and upon this he can literally count. But from this clockwork base, the pendulum swings the other way to delicate elaboration, off to the side remarks, simple statements with a held silence, crying out your feelings, one or two simple notes played over the bass note, or an understated vocal delivery that floats like a leaf on the way down. That's it .... You will hear what I mean before I am through with you. [FN203] *1112 Rules in law, I believe, play the same role and have much the same effect. The judicial opinion-particularly the law-making appellate opinion-has a simple form, one that is recognized by both the writer and the reader. Not easy, but simple. [FN204] The craft of filling in that form is the bond that unites lawyers and judges: it is what we do for a living, and it is what allows us to meet in a hallway and talk intelligently about what we do. [FN205] A judge, if she is a good one, is firmly held to the forms, relying on legal sources, legal modes of reasoning and the traditional structure of opinion-writing just as a musician relies on the four count and the eight-to-the-bar reference to the "one and"' sub-beat.
But within this clockwork framework, the judge remains free, and efforts to control her reasoning and results through formal theory are no more likely to be successful than efforts to determine, by selecting key and count, what notes a musician (say, Stevie Ray Vaughan or Bukka White) will play when. That is just as well. For judging, at least in our common law system, is a creative endeavor in its own right. If musicianship would suffer from a system in which the creativity of a Stevie Ray Vaughan or a Bukka White were submerged under detailed instructions on what to play when, so too would judging suffer (though in a different way) if judges had to decide cases from what amounted to legal sheet music. For then one judge would be as good (or as bad) as another, and our laws would never be able to evolve or grow, submerging not only the genius of our judges, but the genius of our common law system, which is precisely that it allows growth and change. [FN206] Instead of viewing our rules as barriers to change, we should view them as sources-and shapers-of that change.
Interestingly, Justice Story made this point as well-although (blues not having been invented at the time) he was forced to rely *1113 on a different analogy:
Let it not ... be imagined that the maritime law, as acknowledged and practiced upon by the most enlightened nations of the present day, was produced per saltum, by the sudden start of a single mind or nation, generalizing or analyzing the principles at a single effort. Far different is the case. It arrived at its present comparative perfection by slow and cautious steps .... Industry and patience first collected the scattered rays, emitting from a thousand points through the dim vista of past ages; and philosophy reflected them back with tenfold brilliance and symmetry. If, indeed, a professional mind might indulge in a momentary enthusiasm, it would perceive, that in this process had been realized the enchantment and wonders of the Kaleidoscope, where broken and disjointed materials, however rude, are shaped into inexhaustible varieties of figures, all perfect in their order and harmonies, by the adjustment of reflected light under the guidance of philosophy. [FN207]
Rules in law may not determine results, which do indeed come in "inexhaustible varieties,"' but they can provide the "guidance of philosophy"' that allows order and harmony to develop. That Bork sees rules otherwise is a betrayal of how narrow and cramped his vision has become. But for the rest of us, the rules allow light and beautiful music. It is up to us to call the tune.
[FNa1]. Associate Professor of Law, University of Tennessee. J.D., 1985, Yale Law School. B.A., 1982, University of Tennessee. I would like to thank Fran Ansley, Charles Black, Heidi Ebel, Tom Eisele, Mike Gerhardt, Mark Haddad, Robert Long, Rob Merges, Jerry Phillips, Carol Rose, John Sebert, Jim Thompson and Dick Wirtz for some valuable comments and inspiration. I would also like to thank my research assistant, Jennifer Ashley, for her usual first-rate work. They are not, as the usual disclaimer provides, responsible for any errors.
[FN1] R. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990). Those who prefer alternative interpretations of Bork's title may refer to the cover photograph of Bork himself, in which, depending upon one's predispositions, Bork looks either positively Mephistophelean or broodingly prophet-like. As discussed below, Bork appears to adopt this last interpretation.
[FN3] It may be worthwhile to stress what I am not doing in this Paper, namely attacking the concept of "original understanding"' from the outside-for example, by demonstrating that the Framers never intended that the Constitution be interpreted according to "original understanding"' jurisprudence, or that native speakers of the language inevitably have disagreements over the meaning of terms. That task has already been undertaken admirably by others. See, e.g., Levinson, Law as Literature, 60 TEX. L. REV. 373 (1982); Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985). Instead, my purpose is to demonstrate that, whatever the Framers intended, "original understanding"' jurisprudence simply does not work as a means of constraining judges, and furthermore that the original understanding of legislative powers and their place in free republican societies runs counter to the rather simpleminded majoritarianism often proffered as a reason for employing original understanding methods in the first place. In this respect, my criticism of Bork's jurisprudence is a "ground up"' critique, as opposed to "top down"' critiques that focus solely on doctrinal or theoretical matters. For this reason, it is different from most other critiques of "original understanding"' jurisprudence. Deborah Rhode has stated that this "ground up"' approach is typical of feminist writers, see Rhode, Feminist Critical Theories, 42 STAN. L. REV. 617, 621 (1990), but I believe that it is an approach that can profitably be applied in a wide variety of other settings as well. On this approach as typical of feminist writers, see also Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829 (1990).
[FN4] Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U.L. REV. 226, 228 (1988).
[FN5] Karl Llewellyn makes a similar point in a similar context. His article, The Constitution as an Institution, is a classic realist attack on the notion that rules decide cases in any particularly narrow or reliable way. In making this point, Llewellyn notes that "[t]his ought to need no discussion; but as long as an orthodox theory of Words and Intent befogs the constitutional landscape, the most obvious features of that landscape need explicit pointing out."' Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 26 n.37 (1934).
[FN6] Indeed, the jacket of Bork's book is a veritable Who's Who of right- wing pop icons, featuring praise from the likes of Allan Bloom, George Will, Thomas Sowell, Milton Friedman, Irving Kristol and Ronald Reagan. Aside from this rather obvious alignment, I believe that I work no serious unfairness by taking Bork's views as characteristic of a whole school. My authority in support of this position is none other than Bork himself, who makes similar use of the American Civil Liberties Union to illustrate "modern left-liberal culture."' R. BORK, supra note 1, at 243. Bork is, however, by no means the only advocate of positions along the lines described herein. See, e.g., R. BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (1977); W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES (1953). Although these theories sometimes go by the term "original understanding"' and other times are known as theories of "original intent,"' the different names do not seem to reflect any fundamental differences in theory. Compare R. BORK, supra note 1, at 144 ("All that counts is how the words used in the Constitution would have been understood at the time."') with Berger, Judicial Review: Countercriticism in Tranquility, 69 NW. U.L. REV. 390, 393-97 (1974) (in determining intent of Framers, words should be interpreted in light of use by "a normal speaker of English"'). Bork himself identifies Berger, along with Michael McConnell, Lino Graglia and Joseph Grano as fellow-travelers down the road of "original understanding."' R. BORK, supra note 1, at 223-24.
[FN7] "It is important to understand the degree to which the charges leveled against me during the confirmation battle were false and known to be so by those who made them."' R. BORK, supra note 1, at 323.
[FN8] Id. at 143.
[FN9] Id.
[FN10] Id. Of course, as Professor Powell has pointed out, this is strictly true only if the Framers themselves intended for original understanding to be employed. See Powell, supra note 3, at 886-87. See also Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. REV. 204 (1980) (outlining this and other problems of original understanding jurisprudence). As mentioned earlier, however, it is not my purpose to address these problems with original intent jurisprudence. Rather, my point is that even if it were possible to "do"' original understanding in any rigorous way- and even if that way were more rigorous than Bork himself seems to require- doing so would not constrain outcomes in the fashion that Bork's majoritarian political theory requires.
[FN11] U.S. CONST. art. V.
[FN12] R. BORK, supra note 1, at 146. Bork is, I believe, here inspired by a similar observation made by Robert Dahl. See R. DAHL, A PREFACE TO DEMOCRATIC THEORY 23-24 (1956).
[FN13] R. BORK, supra note 1, at 139.
[FN14] Id.
[FN15] Id.
[FN16] See A. BICKEL, THE LEAST DANGEROUS BRANCH 16-17 (1962).
[FN17] Bork seems to derive this limitation as a "necessary inference from the structure of government apparent on the face of the Constitution."' R. BORK, supra note 1, at 155. As I will demonstrate, this point, which lies at the heart of Bork's theory and the justification therefor, is at best a dubious assertion, at least with regard to Bork's idea of what the Framers meant by "'democracy"'-a term that they most pointedly did not employ anywhere in the constitution that they drafted.
[FN18] Id. at 141.
[FN19] Id. at 143 ("In truth, only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy. Only that approach is consistent with the design of the American Republic."').
[FN20] That is, Bork does not believe that all answers can be found within the plain meaning of constitutional language, but believes that some interpretation may be necessary. For a discussion of this distinction and a general scheme categorizingconstitutional theories in this fashion, see Fallon, A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1198-1202 (1987). Philip Bobbitt has constructed a similar, though not identical, scheme of classification which makes the same distinction between textualism and original understanding. P. BOBBITT, CONSTITUTIONAL FATE 9-38 (1982) (distinguishing "textual arguments"' from "historical arguments"' which include appeals to the intentions of the Framers).
[FN21] Bork says that "[t]he Constitution states its principles in majestic generalities that we know cannot be taken as sweepingly as the words alone might suggest"' and notes that despite its language, the first amendment does not in practice forbid Congress from making any law abridging freedom of speech. R. BORK, supra note 1, at 147.
[FN22] Id. at 144.
[FN23] Id.
[FN24] Id. at 145.
[FN25] Id. at 165 (referring to special authority of "treatises by men who, like Joseph Story, were thoroughly familiar with the thought of the time"').
[FN26] For a thorough and humorous illustration of these problems, see Bittker, The Bicentennial of the Jurisprudence of Original Intent: The Recent Past, 77 CALIF. L. REV. 235, 255-82 (1989). In the form of a hypothetical "Case Management Order"' involving "special panel rules to govern constitutional cases involving the 'jurisprudence of original intent,"" Professor Bittker examines such questions as what documents and records are acceptable as evidence of original understanding; whether the understanding that matters is that of the Philadelphia Convention, the state ratifying conventions or the people who elected the delegates to the state ratifying conventions; or-most amusingly-whether the intent of the states whose ratification came after the requisite nine required for the Constitution to enter into force should be considered at all (Rhode Island, he notes, did not ratify the Constitution until May 29, 1790, and Connecticut, Georgia and Massachusetts did not ratify the Bill of Rights until 1939. Id. at 268 n.118). I do not address those issues here, but commend them to any reader not convinced by my attempts to demonstrate that Bork's argument fails even when assessed on its own ground. Readers may also note that not even the text of the Constitution is as well-settled as it might appear. See Amar, Our Forgotten Constitution: A Bicentennial Comment, 97 YALE L.J. 281 (1987).
In response to these problems, and in order to make my test of Bork's theory more rigorous than Bork himself seems to require, I limit the universe of sources throughout my discussion to those specifically approved by Bork. Take note, however, that such a limitation is certainly not required by Bork himself, so that any additional rigor that his theory may appear to gain as a result of my approach should be regarded as an artifact of the testing process and not as an attribute of the theory itself as propounded by Bork.
[FN27] R. BORK, supra note 1, at 144-45 (footnotes omitted). Of course, questions of contract interpretation according to the intent of the parties are not really as clear as Bork makes them seem. See generally Corbin, The Interpretation of Words and the Parol Evidence Rule, 50 CORNELL L.Q. 161 (1965). Corbin indicates that "[s]ince all words have been used in all kinds of contexts to convey varying and inconsistent meanings, they must in any case be examined and weighedin the light of the persons and objects and purposes and usages of the time and place."' Id. at 171. For an interesting analysis of what it might mean to interpret the Constitution in the way courts interpret disputes under the U.C.C. when it is necessary to divine the parties' intent, see Farber, The "Unwritten Constitution"' and the U.C.C., 6 CONST. COMMENTARY 217 (1989) (asking "[i]f the Constitution were a contract, would it include a 'right to privacy'?").
[FN28] R. BORK, supra note 1, at 235.
[FN29] Id. at 145. Bork proceeds, later on, to dismiss one-by-one a broad array of other theories and theorists, including Alexander Bickel, John Hart Ely, Laurence Tribe, Frank Michelman, Richard Parker, Duncan Kennedy, Paul Brest, Thomas Grey, David Richards, Ronald Dworkin, Mark Tushnet, Bruce Ackerman, Michael Perry, Sanford Levinson, Leonard Levy, Justice William J. Brennan, Bernard Siegan, Richard Epstein and John Marshall Harlan. Id. at 187- 240. Though I oversimplify somewhat (but not that much; some of these theorists get little more than a paragraph), Bork rejects each in turn largely on the ground that they misconceive the relative roles of majorities and minorities under the Constitution. I will myself address Bork's own theories on this same ground later on, though at somewhat greater length than he accords, say, Leonard Levy, who receives a scant two paragraphs. Id. at 218-19.
[FN30] Id. at 78 (citing Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1 (1959)).
[FN31] Id. at 146.
[FN32] Id. Note that such principles are neutral only from the judge's perspective, as they in fact embody the distinct normative preferences of the Framers. This point will become important later on.
[FN33] Id. at 147.
[FN34] Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063, 1084-85 (1981).
[FN35] R. BORK, supra note 1, at 149.
[FN36] See generally Schauer, Easy Cases, 58 S. CAL. L. REV. 399 (1985). But see Tushnet, A Note on the Revival of Textualism in Constitutional Theory, 58 S. CAL. L. REV. 683 (1985) (labeling as unsophisticated and vulnerable textualist arguments that certain constitutional provisions are "clear"').
[FN37] R. BORK, supra note 1, at 149.
[FN38] Id. at 149. The equal protection clause provides in relevant part, "No [s]tate shall ... deny to any person within its jurisdiction the equal protection of the laws."' U.S. CONST. amend. XIV, � 1.
[FN39] Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
[FN40] R. BORK, supra note 1, at 150.
[FN41] Id.
[FN42] Id. Note, though, that in following Bork's prescription here the judge would be injecting meaning into the equal protection clause that is not apparent in its general language. See supra note 32. In light of that general language, how reasonable would this injection be?
[FN43] R. BORK, supra note 1, at 150. It is not at all clear to me why this should be the case. If the original understanding of the fourteenth amendment was that its language referred at most to equality of the races, how can it legitimately be applied to require even "reasonableness"' in other circumstances? But if, as he appears to, Bork understands the "general language"' of the amendment to require a "reasonableness"' standard, then what is the relevance of the original understanding, and why should the effect of "'general language"' be limited to imposing a reasonableness standard? After all, the Framers of the fourteenth amendment could have limited its purview specifically to equality of the races but chose to use general language instead. If that fact at all undercuts the idea that the equal protection provision should be limited to matters of racial equality, then it is not clear to me why it does not undercut it all the way. Bork, however, does not address this question, leaving the reader to puzzle out matters as best she can.
[FN44] Id. Giving Bork the benefit of the doubt, I will not say that this statement answers the question in the previous footnote. However, one must wonder why he frames the question this way. After all, if there is a reasonableness requirement, and if actions based on moral perceptions cannot be assessed in terms of reasonableness (as Bork seems to suggest), shouldn't that cut the other way, leading to the invalidation of such classifications? Bork offers no justification for allocating the burden of persuasion as he does, and certainly no hint that this is the way the Framers intended the burden to be allocated. Yet, according to Bork's own formulation the outcome will be determined by the way in which that allocation is made. If a reasonableness requirement demanded an affirmative demonstration that a classification were in fact reasonable, then by Bork's own formulation (that sexual morality cannot be assessed in terms of reasonableness) all statutes dealing with sexual morality would necessarily be invalid. Yet by shifting the burden the other way, and requiring the group complaining of discrimination to demonstrate what Bork says is impossible-that a classification based on sexual morality is unreasonable- Bork ensures that no such classification is challengeable under the fourteenth amendment. Bork does not explain why he assigns the burden in this fashion or why such assignment is consistent with the original understanding of the fourteenth amendment. This approach is by no means a principled one, much less one visibly rooted in "original understanding."' Indeed, as I indicate later on, it appears actually to run contrary to the original understanding of the Framers, at least as regards rights of liberty and property. At the risk of seeming a curmudgeonly textualist, I also refer the reader to the plain language of the equal protection clause. See supra note 38. Does this language suggest where the burden should lie? I believe that it does, and that it does not support Bork's position. This problem comes up again in the context of Bork's Griswold discussion, with similar results. See infra note 82 and accompanying text.
[FN45] R. BORK, supra note 1, at 151.
[FN46] 334 U.S. 1 (1948). Prior Supreme Court case law, most notably the case of Buchanan v. Warley, 245 U.S. 60 (1917), had struck down racial zoning laws, producing a sudden surge of "running covenants"' that accomplished the same end. For more on these two cases, see Ansley, Stirring the Ashes: Race, Class and the Future of Civil Rights Scholarship, 74 CORNELL L. REV. 993, 1010-11 (1989).
[FN47] Shelley, 334 U.S. at 4-6.
[FN48] Id. at 20.
[FN49] R. BORK, supra note 1, at 152.
[FN50] Id. at 152-53.
[FN51] Id. at 153.
[FN52] Id. at 145.
[FN53] Id. at 19. As this citation may suggest, Bork's book follows a curious order: first comes his criticism of decisions that depart from his philosophy, then comes the description (summarized above) of his philosophy, followed by the gory narrative of his confirmation battle. Although this is not a review of Bork's book, I find this order difficult to explain, at least on its face. Perhaps Bork felt that his theory would be more convincing to most of his anticipated readers if he made clear at the outset that it is inconsistent with decisions like Griswold v. Connecticut and Roe v. Wade. Or perhaps he felt that most readers would be interested primarily in liberal-bashing, and that only if he sandwiched his philosophy between attacks on the Warren Court and on the Senate Judiciary Committee would he have much chance of holding their attention. One other interpretation, not involving accusations of playing to the groundlings, is possible: that the book is conceived as a morality play in which error on the part of the people leads a courageous prophet to call for a return to righteousness, a call that leads to his martyrdom but paves the way for the final victory of the forces of good. There is no clear way to tell from the text which of these Bork had in mind; one may only speculate. Still, to me the final interpretation seems the most convincing in light of the book as a whole.
[FN54] 3 U.S. (3 Dall.) 386 (1798).
[FN55] Id. at 387-88. The act in question, passed by the Connecticut legislature, set aside a judicial decree in a will contest; Chase in fact voted to uphold it, finding no improper action by the legislature in the case. Id. at 386.
[FN56] R. BORK, supra note 1, at 19.
[FN57] Id. at 19-20 (quoting Calder, 3 U.S. (3 Dall.) at 387-89).
[FN58] Id. at 20 (quoting Calder, 3 U.S. (3 Dall.) at 399 (Iredell, J., concurring)).
[FN59] Id. This turns out not to be the case. See infra notes 107-21 and accompanying text.
[FN60] R. BORK, supra note 1, at 20-95.
[FN61] 405 U.S. 438 (1972) (holding that Constitution forbids state ban on sales of contraceptives to unmarried adults).
[FN62] 410 U.S. 113 (1973) (holding most state law restrictions on abortion in first two trimesters unconstitutional). I discuss neither Eisenstadt nor Roe at any length here, as Bork's criticism of Griswold is more extensive, and provides a more than adequate basis for testing his theory. I suggest, however, that my analysis of Griswold is equally applicable to Eisenstadt and perhaps even to Roe. A development of this statement, however, would require another article, and as such is a project for another day.
[FN63] R. BORK, supra note 1, at 97.
[FN64] Id. at 234.
[FN65] Id. at 110.
[FN66] Id. at 263.
[FN67] Id. at 95.
[FN68] Id. at 122. As will be plain from the way the pages cited in the footnotes jump around, my construction of Bork's critique of Griswold is not always in the order in which he proceeds in the book. This is because his criticisms of Griswold pop up in a number of different places, often raising different points (or raising similar points in different ways).
[FN69] Id. at 97.
[FN70] Griswold, 381 U.S. at 479.
[FN71] Id. at 482.
[FN72] Id. at 482-83 (citing Baggett v. Bullitt, 377 U.S. 360, 369 (1963); Barenblatt v. United States, 360 U.S. 109, 112 (1958); Sweezy v. New Hampshire, 354 U.S. 234, 249-50, 261-63 (1956); Wieman v. Updegraff, 344 U.S. 183, 195 (1952); Martin v. Struthers, 319 U.S. 141, 143 (1942); Pierce v. Society of Sisters, 268 U.S. 33 (1924); Meyer v. Nebraska, 262 U.S. 390 (1922)).
[FN73] Id. at 484.
[FN74] Id. (quoting U.S. CONST. amend. IX).
[FN75] Id.
[FN76] Id. at 485-86.
[FN77] For an interesting history of the word "penumbra"' in judicial use that focuses on Justice Douglas' use of the term in Griswold, see Greely, A Footnote to "Penumbra"' in Griswold v. Connecticut, 6 CONST. COMMENTARY 251 (1989). That article, however, does not mention one use of the word suggested by a scholarly contemporary of Douglas. Karl Llewellyn used the term in The Constitution as an Institution in a way that seems applicable to Griswold:
The discussion above with reference to the nature of an institution and the inevitable character of its gradual shading off into surrounding complexes of ways (be they complementary, competing, or merely cross-currents fulfilling other needs) will have made clear my belief that, whatever one takes as being this working Constitution, he will find the edges of his chosen material not sharp, but penumbra-like. And the penumbra will of necessity be in constant flux. New patterns of action develop, win acceptance (sometimes suddenly), grow increasingly standardized among an increasing number of the relevant persons, become more and more definitely and consciously "the thing to do,"' proceed to gain value as honored tradition-i.e., become things to be accepted in and of themselves without question of their utility-until they take on finally, to more and more of the participants, the flavor of the "Basic."
Llewellyn, supra note 5, at 26-27 (footnotes omitted). Llewellyn uses the term penumbra in a number of other locations in the article. It is, of course, rankest speculation whether this is what Douglas had in mind when he used the word in Griswold. The language, however, is certainly suggestive.
Interestingly, though, Bork himself seems to apply the concept, if not the word, in a different context:
All of the doctrines that cluster about Article III-not only standing but mootness, ripeness, political question, and the like-relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.
Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C. Cir. 1983) (Bork, J., concurring). Is privacy-like standing, ripeness or mootness-not specifically mentioned in the Constitution but nonetheless judicially enforceable because it is expressed "in different though overlapping ways"' in the Bill of Rights and elsewhere? And can Justice Douglas' action in Griswold be distinguished from the kind of things the courts have done in creating these Article III doctrines? I wonder how Bork would draw this distinction. See generally Glenn Reynolds, Penumbral Reasoning on the Right (unpublished work-in-progress).
[FN78] R. BORK, supra note 1, at 97 (footnote omitted).
[FN79] Id.
[FN80] Id. at 98.
[FN81] Id. at 234.
[FN82] Id. at 227 (emphasis added). At the risk of seeming redundant, I will again point out Bork's assignment of the burden of persuasion here, and the manner in which it determines the result. If, under the same reasonableness test, the burden were on the proponents of the statute to show reasonableness, the result would have to be the invalidation of the statute. Yet, once again Bork offers not a hint as to why he assigns the burden as he does, or why that assignment is rooted in the original understanding of the Constitution. In one sense, this omission is not surprising since, as discussed below, the Framers very likely would have taken an approach opposite to that of Bork in matters touching on personal liberties. See also supra notes 42-44.
[FN83] R. BORK, supra note 1, at 257-58.
[FN84] Id. at 258. Once again, note the assignment of burden here.
[FN85] See, e.g., Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). As I recall, statements made in this article caused Bork some difficulty in his ultimately unsuccessful battle for confirmation as an Associate Justice of the Supreme Court, and Bork stated that not all of the views expressed there reflected his current understanding of the issues. Bork repeats this complaint in his book. R. BORK, supra note 1, at 347. For this reason, I focus throughout solely on Bork's views as stated in The Tempting of America, which I assume he intended to constitute the latest and best statement of his views on the questions it addresses. Those who would like more background (in stultifying detail and quantity) on views expressed by Bork in the past may consult the record of the confirmation hearings. See generally Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearings Before the Committee on the Judiciary, United States Senate, 100th Cong., 1st Sess. (1987). For a less stultifying (in fact, downright readable) journalistic account, see E. BRONNER, BATTLE FOR JUSTICE: HOW THE BORK NOMINATION SHOOK AMERICA (1989).
[FN86] I am sure, for example, that feminist scholars would consider Bork's framing of the issue rather incomplete. For while the availability of contraception certainly enhances the ability to pursue "sexual gratifications"' (which I, at least, don't think so awful), it also has other rather important functions that Bork overlooks. For example, it means that women are not required to choose-in a way much more directly affecting than men-between "'sexual gratifications"' (with the likelihood of pregnancy) and other interests, such as work, political involvement, or whatever, with which pregnancy interferes. See Olsen, Unraveling Compromise, 103 HARV. L. REV. 105, 110-13 (1989); Scales, Tragic Voices, 4 YALE L. & POL'Y REV. 283, 298- 303 (1985). However, as I stress repeatedly, my analysis accepts Bork's characterization for the sake of argument, since it is the best characterization for testing his more general assertions and, as his, should in fairness be the one relied on to test his theory. Note, however, that to the extent that other constitutional considerations-such as women's equality-enter into an analysis of Griswold, Bork's assessment of that case and its outcome is rendered that much weaker.
[FN87] Nothing, after all, is certain in litigation-particularly when a hypothetical court might hypothetically have Judge Bork on the panel.
[FN88] See, e.g., R. NOZICK, ANARCHY, STATE AND UTOPIA 41 (1974) (discussing utility theory and problem of "utilitymonsters"').
[FN89] R. BORK, supra note 1, at 227.
[FN90] Of course, the Framers might have supported a ban on contraception (supposing that the idea had even occurred to them) on practical grounds-in light of the new nation's need for population-or perhaps even on natural law grounds. The first basis, however, is irrelevant to Bork's analysis (since then the "general good"' and not simply selfish moralistic concerns would come into play), and the second is explicitly rejected by Bork. Id. at 20. At any rate, the question-even in Bork's formulation-is not how the Framers themselves would have decided such a question; Bork's theory is more sophisticated than that. Rather, the question is what principles we can draw from the Framers' understanding of what the Constitution was about so as to decide for ourselves whether the Constitution permits bans on contraception. See supra notes 20, 27-46 & infra note 163 and accompanying text. See also Chemerinsky, The Supreme Court, 1988 Term-Forword: The Vanishing Constitution, 103 HARV. L. REV. 43, 92-93 (1989) (explaining that Bork's theory involves creating new abstract constitutional statements, not merely asking what the Framers would have said about particular concrete questions, which would be absurd).
[FN91] R. BORK, supra note 1, at 146. For a concise and lucid history of these times, see D. FARBER & S. SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION 15-21 (1989). I also recommend consulting a source (both here and in general) also highly touted by Bork, Justice Story. See J. Story, Commentaries on the Constitution of the United States 91-104 (R. Rotunda & D. Nowak eds. 1987) (Boston 1833). See also Chemerinsky, supra note 90, at 64-66 (discussing anti- majoritarian beliefs of the Framers).
[FN92] In reasoning from structure in this fashion I am, of course, following in the footsteps of a master. See, e.g., C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969). This is, however, a method of which Bork explicitly approves, saying that "[t]he philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution."' R. BORK, supra note 1, at 155.
[FN93] U.S. CONST. art. I, � � 1, 2, 3, 7. See also U.S. CONST. amend. XVII (providing for popular election of senators by state).
[FN94] U.S. CONST. art. II, � 1, cls. 2, 3. This scheme was modified somewhat by the twelfth amendment, but not in a way that makes the President's election any more "democratic"' in any popular, majoritarian sense.
[FN95] U.S. CONST. art. I, � 7, cl. 2.
[FN96] U.S. CONST. art. I, � 8.
[FN97] U.S. CONST. art. V.
[FN98] Id. I may be stressing the obvious here, but the existence of slavery at the time of the Constitution, as well as the lack of voting power on the part of blacks, women and most poor white males when the Constitution was adopted seems to me to undercut any "majoritarian"' theory of what the Constitution is all about. Bork might respond that "majority"' means only the majority of the voting group, however constituted, but such a response would both undercut any particular claim by his theory to democratic legitimacy and leave him open to responses that, if "majority"' just means a majority of some limited elite group, then why is a decision by a majority of the Supreme Court's justices-or even a majority of (probably liberal) law professors-not equally legitimate? To be given justice, this point requires more space than I can give it here, but loose talk about what "the majority"' wants or does not want should always give rise to the questions "A majority of whom?" and "On what issue?"
[FN99] U.S. CONST. art. V.
[FN100] U.S. CONST. art. I, � 9, cl. 3 (emphasis added).
[FN101] This is the interpretation adopted by Justice Joseph Story, who is repeatedly identified by Bork as both an exemplar in applying the "original understanding"' and a first-class source of information concerning what that understanding was. R. BORK, supra note 1, at 5-6, 134, 154, 165, 289, 318. As Story says:
In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs within its reach, whether they are conformable with the rules of evidence or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may properly be deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and all too often under the influence of unreasonable fears, or unfounded suspicions.
J. STORY, supra note 91, at 484.
[FN102] U.S. CONST. art. I, � 10, cl. 1.
[FN103] See supra note 101.
[FN104] See, e.g., R. BORK, supra note 1, at 289, 318 (identifying Madison, Story, Jefferson and Hamilton as adherents to Bork's theory). See also supra note 101 (listing references to Story as both practitioner of theory and excellent source of information as to what Framers intended).
[FN105] J. STORY, supra note 91, at 501.
[FN106] Id. at 505. The obvious implications of this passage for ninth amendment jurisprudence are discussed infra, though my discussion of Griswold does not depend on the ninth amendment.
[FN107] Id. at 510-11 (emphasis added).
[FN108] R. BORK, supra note 1, at 155.
[FN109] See supra note 107 and accompanying text.
[FN110] See supra text accompanying note 88.
[FN111] So identified by Bork himself, I stress. See supra note 101.
[FN112] 3 U.S. (3 Dall.) 386 (1798).
[FN113] See supra notes 53-59 and accompanying text.
[FN114] Calder, 3 U.S. (3 Dall.) at 387-88 (emphasis added).
[FN115] Id. at 388-89. For ease of comparison, the passage as reproduced in Bork's book follows:
I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State.... The purposes for which men enter into society will determine the nature and terms of the social compact.... An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.... The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.... To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.
R. BORK, supra note 1, at 19-20 (quoting Calder, 3 U.S. (3 Dall.) at 387-88 (emphasis added)).
[FN116] Id. See also note 58 and accompanying text.
[FN117] I do not mean to suggest that Bork is deliberately misreading the Calder v. Bull colloquy-indeed, his reading of it is one endorsed by most commentators. For authorities characterizing Chase's position as depending on natural law principles, see G. GUNTHER, CONSTITUTIONAL LAW 442-44 (11th ed. 1985); W. LOCKHART, Y. KAMISAR, J. CHOPER & S. SHIFFRIN, CONSTITUTIONAL LAW: CASES-COMMENTS-QUESTIONS 379-80 (6th ed. 1986); J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW 332 (3d ed. 1986); G. STONE, L. SEIDMAN, C. SUNSTEIN & M. TUSHNET, CONSTITUTIONAL LAW 61-63 (1986). Laurence Tribe, however, explicitly notes that Chase was doing more than appealing to natural law:
It should be noted that Chase's conception of inherent limits on legislative power did not rest on notions of immutable natural rights alone. In his opinion, Chase maintained that the limits he expounded were implied by the creation and character of the legislature itself-that is, by the specific purposes for which legislatures were created in the American states and by the means through which it was supposed that such legislatures might accomplish their objectives.... Objections, such as Justice Iredell's in dissent, to vague and romantic notions of natural rights as an insufficient basis for hardheaded judicial review, were to this degree wide of the mark ....
L. TRIBE, AMERICAN CONSTITUTIONAL LAW 561 (2d ed. 1988) (emphasis in original).
[FN118] Calder, 3 U.S. (3 Dall.) at 398-99 (Iredell, J., concurring) (emphasis added). Interestingly, it is not entirely clear that Iredell's reference to natural justice here refers to Chase's opinion at all, though that is how it has generally been interpreted. Indeed, the idea of inherent limits on legislative power, under which its arbitrary exercise would be void as outside the ends for which it was delegated, renders reference to concepts of "natural justice"' unnecessary.
[FN119] G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 600 (1969) (quoting Iredell).
[FN120] Although I do not rely on the following for my argument-which I have tried, out of fairness and an attempt at rigor, to rest entirely on sources explicitly approved by Bork-I note that John Locke, whose thoughts were rather influential in the framing of the federal Constitution and those of the states after the revolution, held similar views. As Edward Corwin summarizes succinctly, according to Locke:
Not even the majority which determines the form of the government can vest its agent with arbitrary power, for the reason that the majority right itself originates in a delegation by free sovereign individuals who had "in the state of nature no arbitrary power over the life, liberty, or possessions"' of others ....
Finally, legislative power is not the ultimate power of the commonwealth, for "the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject."
Corwin, The "Higher Law"' Background of American Constitutional Law, 42 HARV. L. REV. 365, 390 (1928) (quoting J. LOCKE, SECOND TREATISE ON CIVIL GOVERNMENT (Every man's ed. 1924) (emphasis in original)). I mention Locke not to suggest that "higher law"' considerations mandate the majority/minority theory held by Story as well as others, but, rather, to suggest that drafters of the federal and state constitutions, to the extent they were influenced by Locke, must themselves logically have intended those constitutions to reflect such a view. Thus, I invoke Locke not on natural law grounds, but on original understanding grounds. Astonishingly, no reference to Locke appears in the index for Bork's book, nor was I able to find one in the text. How a serious scholar of original intent can get by without even mentioning Locke is beyond me, but Bork has managed-though one might argue that this omission is the proverbial thirteenth chime of the clock. For some other discussions tending to suggest that the Framers did in fact have the kind of views I attribute to them, see Amar, Of Federalism and Sovereignty, 96 YALE L.J. 1425 (1987); Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 STAN. L. REV. 843 (1978); Henkin, Revolutions andConstitutions, 49 LA. L. REV. 1023 (1989); Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REV. 1127 (1987).
[FN121] See supra notes 43, 44 & 82 and accompanying text.
[FN122] R. BORK, supra note 1, at 141, 238.
[FN124] John 8:7.
[FN125] See supra notes 63-84 and accompanying text.
[FN126] Griswold, 381 U.S. at 482.
[FN127] Id.
[FN128] Id. at 484.
[FN129] U.S. CONST. amend. IX.
[FN130] Griswold, 381 U.S. at 479.
[FN131] See supra text accompanying note 107.
[FN132] Douglas even refers, suggestively enough, to the "sacred precints of [the] marital bedroom[]."' Griswold, 381 U.S. at 485.
[FN133] J. STORY, supra note 91, at 511.
[FN134] Note that although the ninth amendment, to my mind, commands this result, I do not rely on it in constructing my argument. I am investigating "original understanding"' approaches, and an argument based on the ninth amendment might be characterized as more of a textual approach. However, the ninth amendment certainly seems to tell us something useful regarding the Framers' views of rights in general and of narrow, clause-bound interpretations of rights in particular. Bork, however, rejects any meaningful use of the ninth amendment. At his confirmation hearings, he referred to it as an "inkblot"' whose meaning could not be deciphered by judges. See Wall St. J., Oct. 5, 1987, at 22, col. 1. Now, however, Bork has reconsidered and says about the ninth amendment that "it seems to me a perfectly straightforward statement that rights already held by the people under their state charters would remain with the people and that the enumeration of rights in the federal charter did not alter that arrangement."' R. BORK, supra note 1, at 185. However, while the ninth amendment is a straightforward statement, Bork's view of it is largely insupportable and thoroughly inconsistent with the near- certain understanding of the Framers. Once again, Justice Story lets Bork down with language that seems to make it clear that Bork has it exactly backward:
This clause was manifestly introduced to prevent any perverse, or ingenious misapplication of the well known maxim, that an affirmation in particular cases implies a negation in all others; and e'converso, that a negation in particular cases implies an affirmation in all others. The maxim, rightly understood, is perfectly sound and safe; but it has often been strangely forced from its natural meaning into the support of the most dangerous political heresies.
J. STORY, supra note 91, at 711. Read together with the passage from Story quoted in the text, supra text accompanying note 133, this certainly seems to support the idea that Story, and the Framers, understood the ninth amendment as a refutation of Borkian views to the effect that majority power rules wherever the Bill of Rights does not specifically apply. Another Bork favorite, Justice Iredell, made a similar point in the North Carolina Ratifying Convention:
[I]t would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.
D. FARBER & S. SHERRY, supra note 91, at 224 (quoting North Carolina Ratifying Convention (October 28, 1787), in 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 436 (J. Elliot ed. 1891)). Obviously, based on Bork's theories, Iredell's fears were justified. Surely, however, Iredell's use of the term "the government"' is solid proof that he, at least, could not have believed that the ninth amendment was intended to protect the bills of rights in state constitutions that restricted the (plural) governments of the states.
Certainly a claim that the Framers of the ninth amendment drafted it out of a concern that the federal Bill of Rights might supersede (and abolish) state constitutional rights against state governments is highly implausible, given the adoption of the tenth amendment (which protects just that kind of interest) and the fact that the Framers were, after all, in the process of drafting a bill of rights for the federal government. I leave for another day the question of whether the ninth amendment does more than incorporate the rule of construction set out in the passage from Story quoted in the text, though I believe that it does. For more on the ninth amendment, see C. BLACK, DECISION ACCORDING TO LAW (1981); Black, On Reading and Using the Ninth Amendment, in POWER AND POLICY IN QUEST OF LAW 187 (M. McDougal & W.M. Reisman eds. 1985); Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1 (1988); Symposium on Interpreting the Ninth Amendment, 64 CHI.[-] KENT L. REV. 37 (1989) (featuring various views from such luminaries as Randy Barnett, Sotirios Barber, Michael McConnell, Sanford Levinson, Stephen Macedo, Andrzej Rapaczynski, Thomas Grey, Lawrence Sager and Judge Morris Arnold).
[FN135] See supra note 78 and accompanying text.
[FN136] Cf. Farber, supra note 27, at 219. Farber states:
Although the boundaries of that common understanding may be unclear, it does seem reasonable to assume that the framers took for granted the concept of limited government. In giving the federal government the power to govern the District of Columbia, for example, the framers probably did not believe that they were granting despotic authority over the residents (even though the Bill of Rights did not yet exist). Rather, they probably had in mind commonly accepted limitations on government.
Id. In his essay on interpreting the Constitution in the same fashion as a contract (something of which Bork explicitly approves), Farber applies the concept of "implied warranties"' in much the same way, and suggests an approach that I believe is more consistent with the understanding of the Framers than Bork's own:
As applied to a law, this seems to require that the law be "fit for the ordinary purposes for which laws are passed"'-that is, that the law be reasonably related to some accepted government purpose. If the government supplies a law that doesn't meet this test, that's a breach of warranty. Precisely how to apply this test is a bit unclear, but it seems plausible to say that the contraceptive law in Griswold failed the test. If I had ordered reasonable legislation and were shipped the Connecticut contraceptive law, I'd send it back to the seller with a nasty note.
Id. at 220. Exactly.
As a matter of "black-letter"' constitutional law, what does it mean when a state legislature exceeds its powers as (to use Story's phrase) a "republican and free government?" See supra text accompanying note 107. To the extent that such an action is ultra vires, it would seem (at least where life, liberty or property are involved) to be a denial of due process under the fourteenth amendment, which would certainly empower a federal court to strike down a statute that constituted such legislative overreaching. A fancier argument might also invoke the "Republican Form ofGovernment"' guarantee of article IV, � 4, but such an invocation is not really necessary-though this guarantee certainly supports the idea that the Framers considered limited government important at the state level too, as Story suggests.
[FN137] U.S. CONST. preamble.
[FN138] R. BORK, supra note 1, at 35.
[FN139] J. STORY, supra note 91, at 163-94.
[FN140] Id. at 163-64.
[FN141] U.S. CONST. preamble.
[FN142] Bear in mind that this is Bork's characterization, which I accept for the purpose of argument. One can at least imagine circumstances where forbidding birth control might serve some other interest arguably within constitutional power-say, where some strange disease lowered fertility enough to threaten the extinction of the human species. But, as Bork says, "We are not framing a constitutional philosophy for a society imagined in a particularly horrible piece of science fiction. We are talking about our society .... " R. BORK, supra note 1, at 234. And Bork explicitly frames the issues in terms of a dispute between selfish interests in which the courts are asked to intervene, not as a battle over what constitutes the general good. See supra text accompanying notes 80-84.
[FN143] See D. FARBER & S. SHERRY, supra note 91, at 80-84.
[FN144] R. BORK, supra note 1, at 35. It seems to me, for example, that at least a colorable argument can be made that this phrase explicitly incorporates considerations of natural law, popular among jurists and scholars at the time. I will not construct such an argument here, but I will note that despite his squeamishness about natural law concerns, Bork presumably would have to accept the place of natural law in constitutional interpretation if it could be shown that the Framers intended by talking about establishing justice to incorporate natural law thinking into the Constitution.
[FN145] J. STORY, supra note 91, at 180-84 (discussing meaning of "domestic tranquility"').
[FN146] Id. at 181.
[FN147] Id. at 181-82.
[FN148] R. BORK, supra note 1, at 227.
[FN149] Id. at 258. Note that Bork's position does not necessarily improve if the debate is reformulated-say, as a conflict between groups who believe that sexual conduct should (or should not) be governed by religious principles- since that moves the debate far closer to Bill of Rights questions that (as even Bork would concede) override majoritarian concerns. But, as mentioned earlier, I accept Bork's characterization of Griswold throughout as doing so is necessary to test his theory fairly.
[FN150] This may have been what Justice Douglas had in mind by his reference to the "sacred"' precincts of the marital bedroom and the distastefulness of intrusions therein. See supra note 76 and accompanying text.
[FN151] See supra notes 70-76 and accompanying text.
[FN152] One might argue that a limited form of government, in which majorities may not lord it over minorities with regard to the intimate aspects of their lives, would strengthen the nation by avoiding crippling internal dissension, see, e.g., Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. REV. 61 (1988), or one might stress the phrasing in terms of common defence, but these points would really be included within the other issues that I discuss.
[FN153] J. STORY, supra note 91, at 184-89.
[FN154] U.S. CONST. art. I, � 9, cl. 6.
[FN155] That is, its use of forward-looking words and phrases like "to form,"' "'establish,"' "insure,"' "provide"' and "promote,"' and its very nature as a preamble to an entirely new kind of document.
[FN156] Story's discussion of the contracts clause, see supra text accompanying note 106, seems relevant here-if the Constitution spells out "liberty"' as a prime goal, then just as the intent of the contracts clause was "universal"' one might infer a similar purpose for the goal of liberty. Such a reading is entirely in accord with what we have seen concerning the Framers' views of the nature of free governments in general, and (though it is hardly necessary to add this) suggests the kind of thinking that led to adoption of the ninth amendment.
[FN157] As the old mathematics textbooks used to say, the solution to this problem is left as an exercise for the reader.
[FN158] See supra text accompanying note 87.
[FN159] The actual language is "nor shall private property be taken for public use, without just compensation."' U.S. CONST. amend. V. It has occurred to me that this does not literally require what courts have typically provided, that the taking, to be permissible, must be for public use, but that is the construction that everyone has put on it, and is no doubt what the Framers actually meant. The "public use"' requirement has lost much of its force over the years, and one of the key operators in this process was none other than Justice Douglas, who remarked in very Bork-like terms that "when the legislature has spoken, the public interest has been declared in terms well- nigh conclusive."' Berman v. Parker, 348 U.S. 26, 32 (1954). Nonetheless, here, in line with Bork's philosophy, we are talking about what the Framers meant by the takings clause, not what Justice Douglas has done with it, rightly or wrongly. Indeed, it is probable that the clause is directed at taking for public use because the Framers did not believe that the government would possess the power to take property for private use in any event. For more on the takings issue from a standpoint that would please neither Justice Douglas nor Professor Bork, see R. EPSTEIN, TAKINGS (1985).
[FN160] See generally Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689 (1984).
[FN161] There is obviously much more to the takings clause than this, but my purpose in raising it here is to discuss the takings clause primarily insofar as it sheds light on the Framers' view of majority/minority relations and democratic politics. For more on the takings clause in general, see Merrill, The Economics of Public Use, 72 CORNELL L. REV. 61 (1986); Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation"' Law, 80 HARV. L. REV. 1165 (1967); Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S. CAL. L. REV. 561 (1984); Note, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J. 694 (1985) (William J. Treanor). Michelman and Treanor in particular suggest functions for the compensation requirement, and historical background for it, that argue rather strongly against Bork's view of majority/minority relations.
[FN162] See supra text accompanying note 107.
[FN163] Of course, reference to the takings clause (or any of the other issues discussed here) is no answer to the Connecticut statute if one simply believes that rights not specifically named in the Constitution do not exist. But that is taking a purely textualist approach (and a rather simple-minded one at that). Bork, to his credit, does not advocate simply looking at the Constitution to see if there is a previously-ignored amendment in the Bill of Rights mentioning birth control. Bork's prescription specifically allows judges to develop new abstract principles so long as they are neutrally formulated and are derived from the intent of the Framers. See supra notes 20 & 27-46 and accompanying text. Thus, looking at the Constitution's treatment of takings and other aspects of majority/minority relations is entirely appropriate under Bork's approach. I realize that I stressed this earlier, but references to "original understanding"' jurisprudence seem inevitably to conjure up questions of "what did James Madison think about this?"-so I feel that the point is worth repeating.
[FN164] 334 U.S. 1 (1948); see R. BORK, supra note 1, at 143-53. See also supra text accompanying notes 46-51. Note that Bork maintains that most laws are moral in nature, and thus he would presumably argue that my principle encompasses too much. Yet that is not the case. Bork's own examples of laws that he says are fundamentally moral in nature bear this out. For example, he says that "there is ... no objection to forcible rape in the home or to the sexual abuse of a child there, except a moral objection,"' and (borrowing a hypothetical from Alexander Bickel) says that when a man tortures puppies on a desert island, where no one else can witness the torture or hear the screams, the only objection to the practice is a moral one, yet that is sufficient to support laws against it. R. BORK, supra note 1, at 124, 258. Not to make too big a deal out of it, but to my mind the legislature just might be taking the interests of the rape victim or the child, or even of the puppies, into account, though I am not within the "animal rights"' camp as it is currently conceived. See Glenn Reynolds, Animal Rights, and the "Grand 'Sez Who"" (unpublished work-in-progress). Recognizing these interests would neither conflict with my principle nor expand it significantly; certainly such instances are a far cry from Bork's formulation of the issue in Griswold.
Bork is obviously aware that he is on thin ice in this regard, as he immediately notes:
I am sure to be attacked on the ground that I see no moral distinction between forcible rape and consenting sexual activity between adults. That is not true... [But] [i]f a majority of my fellow citizens decide that the cases, while not alike, are nevertheless similar enough so that both actions should be made criminal, while I may disagree with them morally, the fact that I am a judge does not mean that I am entitled to displace their moral judgment with my own.
R. BORK, supra note 1, at 124.
In light of this remark, I wish to make clear that I am not suggesting that Bork (understandably prickly about such things nowadays) is suggesting that there is no moral difference between forcible rape and contraception. What I am suggesting is that there is a clear legal distinction, divinable from the face of the Constitution and a few other sources of contemporary interpretive guidance explicitly endorsed by Bork, that he entirely overlooks. The question is not, as Bork would have it, a matter of displacing the community's moral judgment with his own, but of displacing the community's moral judgment with the Framers' legal judgment, something which he should regard as part of his judicial duty.
[FN165] Indeed, if my reading is correct, then Bork's assertion that "[i]t really does not matter to the decision what the Bill of Rights covers or does not cover"' is also correct. R. BORK, supra note 1, at 98; see also supra text accompanying note 80. However, the fact that the Bill of Rights is not necessary is itself because of the original understanding, not in spite of it. In light of this reading, Douglas' examination of the Bill of Rights can be seen as a way of determining what the Framers thought about privacy and the powers of legislatures in general. If this is the case, it is not surprising that no specific provision of the Bill of Rights is precisely applicable-in fact, to make such a complaint misses the point of the entire enterprise.
[FN166] By "lying"' I refer to Bork's own language regarding statements that are false and are known to be false by those who make them. See supra note 7.
[FN167] See supra notes 1 & 53.
[FN168] R. UNGER, KNOWLEDGE AND POLITICS 294-95 (1975). Unger states:
When philosophy has gained the truth of which it is capable, it passes into politics and prayer, politics through which the world is changed, prayer through which men ask God to complete the change of the world by carrying them into his presence and giving them what, left to themselves, they would always lack.... But our days pass, and still we do not know you fully. Why then do you remain silent? Speak, God.
[FN169] R. BORK, supra note 1, at 154-55.
[FN170] "But Jesus said unto them, 'A prophet is not without honor, but in his own country, and among his own kin, and in his own house."" Mark 6:4.
[FN171] R. BORK, supra note 1, at 343. Of course, the truly great thing about this country (and I am not being facetious here) is that after being "burned,"' the heretics tend to go on to write bestselling books. More to the point, Bork's self-descriptive use of the term "heretic"' is particularly interesting in light of the fact that Joseph Story regarded a narrow construction of the Bill of Rights of the sort that Bork propounds as among "the most dangerous political heresies."' See supra note 134. Also interestingly, the much-maligned Justice Chase agrees as well, in a passage that is even quoted by Bork: "To maintain that our Federal, or State, legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments."' R. BORK, supra note 1, at 19-20 (quotingCalder, 3 U.S. (3 Dall.) at 387-89) (emphasis omitted). If these two jurists agree-in spite of being placed on opposite sides of the general question by Bork himself-then it seems to me that there is a very strong case that Bork's political theory would be regarded as heretical indeed by the Framers. This is a peculiar situation indeed for an advocate of "original understanding"' jurisprudence; perhaps the practical difference between "academic orthodoxy"' and the original understanding is not as great as Bork would have us believe.
[FN172] Leff, Unspeakable Ethics, Unnatural Law, 1979 DUKE L.J. 1229, 1229. Leff would no doubt regard Bork's book as a "pure instantiation"' of this statement. Id. at 1230 n.2. Of course, not everyone is as gloomy as Leff about this outcome. See Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 66 (1984) ("When we give up the idea that the legal system has a foundation, a 'rational basis,' we are not left with nothing. We are left with ourselves, and we are not nothing."').
[FN173] Leff, supra note 172, at 1229 ("What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good and to create it."').
[FN174] For more on this, see Powell, supra note 3. Of course, there is no way to be sure that the Framers considered and rejected the possibility of inserting language stating the general method of construction to be employed in constitutional interpretation, but it is certain that (with the interesting exception of the ninth amendment) they did not in fact insert anything of the kind.
[FN175] Cf. R. FRANK, PASSIONS WITHIN REASON: THE STRATEGIC ROLE OF THE EMOTIONS 96-145 (1988) (discussing clues relied upon in determining honesty and reliability).
[FN176] U.S. CONST. amend. IX (emphasis added).
[FN177] J. STORY, supra note 91, at 584.
[FN178] Id. at 584-85.
[FN179] The other items that Story mentions have more to do with protection against other forms of tyranny, it seems to me.
[FN180] R. BORK, supra note 1, at 301.
[FN181] Id. at 5 (quoting J. STORY, supra note 91, at vi).
[FN182] Id. at 280, 323-36.
[FN183] Nor does it help to suggest that someone should be able to choose between interpretations to see which one is "really"' consistent with the theory and which one merely appears to be. After all, as Bork clearly agrees, senators do not know much about constitutional theory, and cannot be relied upon to understand it and how it relates to results. Thus, if theory were to be a check on judicial action, someone else-say, an unelected committee of law professors-would have to do the checking. That is a cure that would undoubtedly be worse than the disease, particularly from the standpoint of democratic values. And who would decide if they were right?
[FN184] Cf. Rostow, The Democratic Character of Judicial Review, 66 HARV. L. REV. 193, 194-95 (1952). Rostow states:
It is a grave oversimplification to contend that no society can be democratic unless its legislature has sovereign powers. The social quality of democracy cannot be defined by so rigid a formula. Government and politics are after all the arms, not the end, of social life. The purpose of the Constitution is to assure the people a free and democratic society. The final aim of that society is as much freedom as possible for the individual human being.... The root idea of the Constitution is that man can be free because the state is not.
Perhaps the best statement of this point was made by Charles Black. C. BLACK, THE PEOPLE AND THE COURT: JUDICIAL REVIEW IN A DEMOCRACY (1960). See also Carter, The Right Questions in the Creation of Constitutional Meaning, 66 B.U.L. REV. 71, 77-78 (1986) (stressing judicial review not necessarily undemocratic); Fiss, Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 15 (1979) (highlighting democratic inputs into judicial process).
[FN185] Cf. R. BORK, supra note 1, at 285, 290-91.
[FN186] Or, as said rather nicely in a very different context:
"You just let the machines get on with the adding up,"' warned Majikthise, "'and we'll take care of the eternal verities, thank you very much. You want to check your legal position, you do, mate. Under law the Quest for Ultimate Truth is quite clearly the inalienable prerogative of your working thinkers. Any bloody machine goes and actually finds it and we're straight out of a job, aren't we? I mean, what's the use of our sitting up half the night arguing that there may or may not be a God if this machine only goes and gives you his bleeding phone number the next morning?"
[FN187] In this respect (and perhaps others) this article falls outside of Bruce Ackerman's statement that "[h]ardly a year goes by without some learned professor announcing that he has discovered the final solution to the countermajoritarian difficulty, or, even more darkly, that the countermajoritarian difficulty is insoluble."' Ackerman, The Storrs Lectures: Discovering the Constitution, 93 YALE L.J. 1013, 1016 (1984). While the countermajoritarian difficulty may in some sense be insoluble, I do not consider that fact cause for depression. The Madisonian dilemma, or whatever one wants to call it, is merely a price that we pay-and not a particularly onerous one-for having systems of governance that must be designed and operated by imperfect humans in an imperfect world. I am, of course, not the first to suggest that the importance of the Madisonian dilemma is overrated. See, e.g., M. SHAPIRO, FREEDOM OF SPEECH: THE SUPREME COURT AND JUDICIAL REVIEW 32 (1966).
[FN188] As Bork explains:
The clash over my nomination was simply one battle in this long-running war for control of our legal culture. There may be legitimate differences about that nomination, but, in the larger war for control of the law, there are only two sides.... The forces that would break law to a tame instrument of a particular political thrust are past midway in a long march through our institutions.... But the focus of the struggle, the commanding height sought to be taken, as indeed, it partly has been, is control of the courts and the Constitution.
R. BORK, supra note 1, at 2-3.
[FN189] Bork continues:
Why was there an explosion of fury at my nomination? Why did the public interest organizations, so many academics, and most of the major media display blatant hostility and misrepresent facts?Most immediately, of course, many of these groups were energized by issues such as abortion and sexual permissiveness.
Id. at 337.
[FN190] Id. at 339.
[FN191] Id. at 343.
[FN192] See, e.g., id. at 6, 140, 145, 273, 335 & 354. Bork's most astonishing statement of this sort is: "President Reagan has been accused of appointing judges with a political agenda, but that was most certainly not the case."' Id. at 273. Presumably, President Reagan was then welshing on his campaign promises to do just that.
[FN193] Bork cites with approval Bloom's The Closing of the American Mind and quotes with approval a passage from Hilton Kramer regarding
an attempt on the part of the radical Left first to discredit and then to do away with what in our most exalted artistic and humanistic traditions may be seen to offer resistance .... We know the assault is at bottom political, no matter under what other temporary banners the assault may at times be mounted and regardless of what unexceptionable virtues it may at times be mounted in the name of.
R. BORK, supra note 1, at 137 (citing A. BLOOM, THE CLOSING OF THE AMERICAN MIND: HOW HIGHER EDUCATION HAS FAILED DEMOCRACY AND IMPOVERISHED THE SOULS OF TODAY'S STUDENTS (1987) and quoting Kramer, Studying the Arts and the Humanities: What Can Be Done, THE NEW CRITERION, vol. 7, Feb. 1989, at 1, 3). I am not the first to make the Bork/Bloom connection in this context. See, e.g., Hirshman, Bronte, Bloom and Bork: An Essay on the Moral Education of Judges, 137 U. PA. L. REV. 177 (1988).
[FN194] See R. BORK, supra note 1, at 338-43 (discussing influence of former student activists who have now entered academia as "the addition to the intellectual class of a group associated with, indeed responsible for, the rebelliousness and turmoil in the universities in the late 1960s"').
[FN195] For more on these and other problems in the serious adoption of hard-core originalism, see Bittker, supra note 26. We would, it seems to me, do well to avoid adopting any system that Boris Bittker of all people considers too complex!
[FN196] See supra notes 43, 44 & 82 and accompanying text.
[FN197] Leff, Economic Analysis of Law: Some Realism about Nominalism, 60 VA. L. REV. 451, 477-82 (1974).
[FN198] See generally Tushnet, Conservative Constitutional Theory, 59 TULANE L. REV. 910 (1985).
[FN199] In the interest of fairness, I should note that liberals have been guilty of result-oriented work as well. One particularly clear example is in the way that liberal scholars have ignored or wished away the second amendment without very much effort at rigor or consistency. For an interesting discussion of this phenomenon, see Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 642 (1989) ("I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even 'winning,' interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation."').
[FN200] See M. TUSHNET,RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 1-5 (1988); Carter, Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle, 94 YALE L.J. 821 (1985) (explaining that development of grand theory has been primarily an effort to protect Warren Court decisions against delegitimization).
[FN201] See supra text accompanying note 176.
[FN202] See Reynolds, Chaos and the Court, 90 COLUM. L. REV. (forthcoming 1990) (arguing that structure of Supreme Court and nature of litigation process make precise predictions unreliable regardless of theory utilized by Court); Eskridge & Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321 (1990) (making a similar point from different starting place). See also Chemerinsky, Wrong Questions Get Wrong Answers: An Analysis of Professor Carter's Approach to Judicial Review, 66 B.U.L. REV. 47, 56 (1986) ("The process of applying the Framers' intent to modern circumstances requires inferences that can never be value free."'); Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469 (1981) (arguing impossible to decide constitutional cases without substantive decisionmaking).
[FN203] S. DANIELS, BLUES GUITAR-INSIDE AND OUT 7 (1981). These remarks have been verified by conversations I have held with accomplished blues guitarists, but anyone who is skeptical is encouraged to judge matters on his or her own by comparing multiple versions of blues standards performed by different musicians in order to see how following the same forms can lead to dramatically different interpretations. A good comparison is between the versions of "Things That I Used to Do"' performed by Muddy Waters (Chess Box rerelease, 1990, CHD-80002C), Albert Collins (Frozen Alive, 1981, SNTCD 874) and Stevie Ray Vaughan (Couldn't Stand the Weather, 1984, EK39304). If this doesn't convince, nothing will.
[FN204] See K. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960). For a concrete example of both the traditional form, and the artistry involved in filling it in, see Moragne v. States Marine Lines, 398 U.S. 375 (1970) (Harlan, J.).
[FN205] Lawyers, after all, can begin to talk intelligently about a case with only a few initial questions to determine the parties, the issue and the important facts. Imagine trying to do the same thing without the analytical structure provided by law and its rules and conventions.
[FN206] See G. CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982); B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921); O.W. HOLMES, THE COMMON LAW (1881); K. LLEWELLYN, supra note 204. Cf. Clark, The Interdisciplinary Study of Legal Evolution, 90 YALE L.J. 1238 (1980) (discussing growth and survival of legal rules in common law courts).
[FN207] J. STORY, MISCELLANEOUS WRITINGS (1835), reprinted in J. LUCAS, CASES AND MATERIALS ON ADMIRALTY 354 (2d ed. 1978).