Robert H. Bork – An Intellectual Feast, Part I

THE OPEN MIND
Host: Richard D. Heffner
Guest: Judge Robert H. Bork
Title: “Robert H. Bork – An Intellectual Feast”, Part I
VTR: 11-20-88

Heffner: I’m Richard Heffner, your host on THE OPEN MIND.

When the Senate hearings on Federal Appeals Court Judge Robert H. Bork’s nomination to be an Associate Justice of the Supreme Court of the united States were coming to an end, Judge Bork, asked why after all he wanted to sit on our highest court, answered in part that, “It would be an intellectual feast just to be there and to read the briefs and discuss things with counsel and…with my colleagues”.

And I must say that on this day above most others, I am reminded what an intellectual feast it is for me to be here, to read their words – their “briefs”, if you will – and to “discuss things” with OPEN MIND guests, particularly when they even begin to reflect the richness and complexity of thought and work characteristic of Judge Robert Bork, who joins us now, and who so surely would have been a stunningly illustrious ember of our high court.

Indeed, the sheer pleasure I have had in reading here and there in Robert Bork as Law Professor as Jurist, as Solicitor General of the United States, matches only the intellectual feast I experience when each year I read again with my Rutgers students such seminal works as Lippmann’s Public Opinion, or certain Socratic dialogues, or Dostoevsky’s Grand Inquisitor…or John Stuart Mill’s On Liberty, which brings me to where I’d like to begin our OPEN MIND.

For I’m told that when he spoke yesterday at Midge Decter’s Conference of The Committee for the Free World, Judge Bork indicated that recent Supreme Court decisions have too often reflected thinking based on Mill’s On Liberty. Of course, I read Mill differently than most, see him as really a society’s-interest-first, greatest-good-for-the-greatest-number majoritarian, rather than as an individualist libertarian. But that’s not the point. Traditional wisdom does see On Liberty as primarily a defense of individual rights over the interest of society, and I gather Judge Bork is concerned that recent Court decisions have written On Liberty into our Constitution, much as earlier jurists had enshrined Herbert Spencer’s Social Statics.

And if that’s true, if that’s what Judge Bork fears – and I’m not challenging that position – I want to ask him to describe the intellectual odyssey that has brought him so far from the somewhat parallel libertarian views he so well expressed a quarter century ago when he deplored legislation “By which the morals of the majority are self-righteously imposed upon a minority”. Whenever that happens, he wrote, “…It is likely to be subversive of free institutions…if, every time an intensely-felt moral principle is involved, we spend freedom, we will run short of it”. Judge Bork, welcome, and I wonder about that odyssey. How to explain it?

Bork: I’m interested to hear those words. I’d forgotten I’d written them. But I think it was because I came out of the University of Chicago where I’d been heavily influenced by the economists there, free market economists. And I,…mistakenly as libertarian analysis to social affairs…that you could to economic affairs. I think you see that in Milton Friedman. He does apply libertarian principles to social affairs as well as to economic affairs.

Heffner: But why is that “mistaken”?

Bork: Because there’s not a market with discipline in social affairs. That is the premise of a free market, is that it is disciplined by competition and that people must behave in the ways that the market commands. In social affairs there’s no market that imposes any such discipline.

Heffner: And where will the discipline come from…if, indeed, there needs to be discipline?

Bork: There needs to be, of course. We know that every time we put people out on the street. You have to have some degree of order so that they can be free to do the things they have to do and want to do. Where does discipline come from? It comes from morals, it comes from law, it comes from social custom.

Heffner: But whose morals and, in a sense, given your own critique of contemporary jurisprudence, whose law, whose judgments?

Bork: Well, my critique of the Supreme Court was not based upon disagreement with what they were legislating, although I might, in some cases, disagree and might not. My critique of them came from the fact that Mill and his principles are not part of our Constitution and they have no business running a principle into the Constitution that the framers and the ratifiers didn’t put there.

Heffner: What shall we read into the Constitution then?

Bork: We don’t read anything into it. You do your best to get out of it major premises, moral premises, if you will, from which you reason to conclusions.

Heffner: But what moral premises do you find in the Constitution or are you expanding the original intent to the original intent of the persons who wrote the Constitution?

Bork: I’m talking about the people…the people who count are the people who voted to ratify it because they are the legislators that made the Constitution law. Now the intentions or understandings of the people who framed it are very good evidence about what intelligent people at the time thought it meant. But the ultimate intention or understanding is that of the ratifiers. There are lots of ways to find out what they thought. They gave us a text. They gave us debates at Philadelphia. They gave us debates in the ratifying conventions. They gave us newspaper debates. They gave us the Federalist Papers. They gave us the Anti-Federalist Papers. There’s a lot of evidence to tell us what principles they were laying down. Now you don’t interpret the Constitution in light of the details of the world they knew. But you do know what principles they were laying down or what values they were trying to protect. For example, we have no difficulty in applying the First Amendment’s Freedom of the Press clause to electronic media because it is the same value involved even though the founders knew nothing about electronic media.

Heffner: But you know I began my professional life as an American historian and I thought at the time and even now I think I know I believe I know, what Jefferson would say today, what Hamilton would say today. I have some sense of them. Is that sufficient for you – not my understanding, but your understanding – to interpret the…to set against those understandings the laws that a Congress today will pass?

Bork: I would think so. Now, in the first place, if we can know nothing about the understanding of the people who ratified the Constitution, then a Judge has no authority, that I can find, to strike down any law because I don’t know what law he’s applying if he doesn’t understand the Constitution. We ought to give up Judicial Review if that’s the case. But I don’t think it is the case. I don’t think we will ever decide every case or a vast number of cases exactly the way the framers and the ratifiers would have decided it. But at least we will be dealing with the principle that they wanted laid down and doing our best to preserve a value that they wanted preserved. That’s as good as you can do.

Heffner: If you had your druthers, and we turn the hands of the clock back, pre Marbury vs. Madison, would you feel comfortable about not instituting, if that is the proper word, Judicial Review?

Bork: Would I feel comfortable? I think I might because if you look at other nations like Great Britain, France, modern West Germany and so forth, they have utterly viable democracies with a lot of individual freedom without Judicial Review. Now they’re developing Judicial Review in some of those countries, but they’ve had a long history of democracy without it. In fact, I should say, that in this country it’s only a relatively recent phenomenon that the Bill of Rights has been applied by the Judiciary, and that the First Amendment cases are this century at most, in fact, I think post World War I.

Heffner: For good or for bad?

Bork: Well, I don’t know. It seems to me it was a pretty free country before that began. Now I’m glad we have a Constitution. I’m glad we have a Bill of Rights but the fact is what freedom rests upon in this country is the good sense and the good feeling of the American people. If this was really a repressive society, the Supreme Court would not be able to stand against it.

Heffner: You said “the good sense of the American people”. Now we turn to the question of public morals, of morality. I think you probably would agree with me that involvement in things that you and I might consider immoral, improper, inappropriate is widespread, whether we’re talking about drug use or any number of things. How do you make that square? How do you make the prevalence, not of witches, but of attitudes that you would not subscribe to…bad ones, ones that you fell under mine this nation with the philosophy that you express?

Bork: Well, I don’t know that I was relying particularly upon the culture of drug users as the backbone of the nation’s good sense…

Heffner: Then abortion…

Bork: What about it?

Heffner: Well, if one takes the polls that are made, and unless you reject them all, it would seem that a very, very substantial portion of Americans, certainly American women, do not want to limit, or have limited their right to make their own decisions as to what they do with the fetus.

Bork: Well I don’t quite understand the thrust of the question. The fact that a substantial majority of American women may want to have freedom to have abortions does not, I think, undercut the argument for democracy.

Heffner: But if a substantial majority feels a certain way isn’t that in…Bork today…what should be commanding? Isn’t that the position that should prevail?

Bork: Yes.

Heffner: Then you would accept the matter of abortion on the basis of a majoritarian approach to it?

Bork: You actually have to unless you’re willing to engage in civil disobedience. Now I know there are people who do engage in civil disobedience on that issue as upon other issues. That must rest upon the conviction that abortion is murder and that it is being done in large numbers so that what they are facing is something like Daschau. People who feel that way, I can understand would engage in civil disobedience but I think civil disobedience must be reserved for the most extreme kinds of cases in a democracy.

Heffner: It’s so interesting to me, though, that for someone who seemingly feels that, not quite that we’ve gone to hell in a wheelbarrow, but that there are standards today that you would not embrace. You’re willing to leave our lives, our fortunes, etc., to the hands of majorities.

Bork: Except where the Constitution says otherwise.

Heffner: And it doesn’t say terribly much, does it?

Bork: Oh sure, freedom of speech, freedom of press, freedom of religion, no establishment, your house may not be invaded without good reason or a warrant from a Judge and on, and on, and on. It says a lot of things. It sets down basic guarantees of freedom that any free society ought to have.

Heffner: And the rest is up to the majority?

Bork: Yes. That we know the framers intended. They clearly thought the Judiciary would be a relatively insignificant branch and that the Legislature and the Executive would be predominant in policy making, that we know.

Heffner: What happened?

Bork: Well, I don’t know exactly what happened. From the beginning some courts showed a desire to, a willingness to take on functions that weren’t theirs. It’s not entirely a modern phenomenon. And then towards the end of the last century you had a very conservative, laissez-faire court, the kind of court you were referring to that was enacting Spencer’s Social Statics, and they were quite activist. Then with the New Deal, you got a very activist liberal Court. It changed from a very conservative activist, to a liberal activist Court and it spurted with the Warren Court. What happened? That’s a little beyond me. But I think the fact is that judges, like other people, have a desire for power and have a desire to do things that they regard as moral.

Heffner: You think it is a matter of power the, “let’s create the kind of society we want”.

Bork: That was clearly true of the Warren court. Earl Warren, as you may know, often said from the bench when some lawyer was arguing a complex point or arguing that the Constitution left a decision on this matter to some other branch of government, and he would often say, “Yes, but is that fair, is that what America stands for?” He was clearly legislating morals.

Heffner: But you see…

Bork: And you can agree with the morals without agreeing with his right to lay them down.

Heffner: But then let’s go back to the question of original intentions because if one examines the concept of the good life, of the good society, of those who did create our basic structure, certainly we can derive from what they had written a sense of the way society should be conducted and from that derive our approval or disapproval of certain activities. Is that too far a stretch?

Bork: Are we talking about judges laying it down as Constitutional law or just as citizens approving or disapproving?

Heffner: But you’re saying then, that citizens can function that way but judges mustn’t.

Bork: That’s right. Judges are not elected. They are not accountable. They are not representative of the population. And why they should govern on their own escapes me.

Heffner: Yes, but…

Bork: They should apply the document. There is plenty in that document for them to worry about and there are many things in there that guarantee our freedom but when a judge begins to decide that his or her marls must be imposed upon me, even if it’s not in the document, something has gone wrong.

Heffner: Then original intent relates only to the document, not to the intentions as we can identify them of the founders and the ratifiers.

Bork: I prefer the word understanding because intentions sounds like a subjective intent as if you have to penetrate the mind of this person. But there was a public understanding. After all, it was a public act. There was a public understanding of what the principles were and that’s what we should look to as a judge laying down the law. Because if it’s not…the only authority a judge properly has is to apply law that is external to himself and not to apply his or her own moral beliefs.

Heffner: Or the moral beliefs, the understanding of what society is all about, of the founders.

Bork: No. The founders wrote a law. That law is called the Constitution, the Bill of Rights, and so forth. That law has a meaning. You don’t look to what else they did in their lives. They deliberately left the rest of the scope of human activity open to legislation.

Heffner: You see, that’s what has always puzzled me because I’ve been trying to understand more fully your point of view. And we come back then to original intent or understanding being that which is to be found in the document itself.

Bork: Maybe found in and from the surrounding history of the document, that’s right, the debates, the newspaper articles, the books and so forth. Look, the Constitution is law. That means you interpret it using the same tools you use for other things. What do you do with a contract? You look for what the parties intended. What do you do with a statute? You look for what the legislators understood themselves to be doing in order to apply it. You do the same thing with a will. Now, you do the same thing with the Constitution and you’re merely applying standard legal methods to the application of a document to life today.

Heffner: In a sense…it’s interesting you use the word “will”. In a sense that’s what the founders left us, their will, in that document. I was so impressed…one of these magnificent readings that you occupied me with…as I read through this material you quoted Justice Story, and I think it’s here you said “he is both an Associate Justice of the Supreme Court and a Professor of Law at Harvard. He could write in his great commentaries “I have not the ambition to be the author of any new plan of interpreting the theory of the constitution or of enlarging or narrowing its powers by ingenious subtleties and learned doubts”. He thought the job of Constitutional Judges was to interpret. “The first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms and the intention of the parties”. And I gather that is your act of faith that you believe in?

Bork: I wouldn’t call it an “act of faith”. That’s the intellectual position I’ve arrived at, yes.

Heffner: Why not an act of faith. Isn’t that what it is?

Bork: I don’t think so because I can demonstrate things. You don’t have to have faith in things you can demonstrate.

Heffner: That’s interesting.

Bork: Faith is about that which is unprovable.

Heffner: And you think it’s less than that which is provable.

Bork: No. Faith is appropriate in some matters and those things which are demonstrable, one should demonstrate.

Heffner: You see I use “Act of Faith” because I was thinking back to that great teacher of American history Charles A. Baird who said that “All written history, all spoken history is essentially an act of faith”. It’s what you believe happened; that there is so little we can really know. You put you reemphasis upon what we can know, that which is written.

Bork: If we don’t know, the judge has no legitimate authority to order us around. It’s only because he has a pretty good idea of what was meant and that it’s law for him to apply.

Heffner: Where do you think we’re going now on this question of intention of the attitude of judges toward their responsibility?

Bork: Well, I don’t know where we are going. I think my view, which is, as you point out, Justice Story’s view and was the traditional view in American law, is now a small minority view in American law schools. And I think there is a large part of our legal culture, which includes almost all of the law schools, that really wants to politicize judging and politicize the Constitution. I don’t know which side in that debate will win out.

Heffner: What’s your guess?

Bork: My guess is that perhaps we can get the American people to understand what’s at stake and what is going on with respect to judging and what is being urged upon judges. That is that judges are being urged to engage in more heroic policy making than they ever engaged in before. I think we have the better…my side has the better of the intellectual argument, and ideas do matter sometimes, and I think maybe the American people can be made to become interested enough to make it plain what they expect of their judges.

Heffner: You know, there was in that very interesting piece that I know you’re familiar with that Laurence Tribe wrote after the rejection of the nomination…

Bork: Well I’m not, as a matter of fact.

Heffner: Well let me see if I can dig it up…here it is. It was a speech that he gave November 16th, 1987, before the Women’s Legal Defense Fund. He said two things. He wrote tow things that were of particular interest to me. He said, thought in the first place talking about you, Sir: “It was not that he personally would want to prevent women from having abortions in certain circumstances or that he personally would oppose Civil Rights progress or that he personally would feel comfortable with dictating the intimate details of private life in every bedroom in the land, it was simply that his philosophy left no room for a Supreme court that could stand in the way of majorities that would, indeed, vote for those intrusions and those invasions”. He expresses his respect for you and says your philosophy of Judicial Review, of the role of the Judiciary is such that it would have led to these things.

Bork: It wouldn’t necessarily lead to those things. It might say that if a majority of the American people voted for those things, the judge would not stand in their way. The judge would not impose those things. But, you know, what we’re talking about, Story wouldn’t have stood in the way of a democracy that wanted to do those things, either. The Constitution does not say that all good things are here and all stupid things are unconstitutional. It says specific things are unconstitutional.

Heffner: Let me go back to Tribe for a minute because it was this other point that I think…most important relating to the guess that I asked you to make. It seems to me that to call this a lynching, as Suzanne Garment did and others have, of what happened to you in the Senate…and I think that’s not an inappropriate characterization…he says, “When the nation reached a firm and I think (he thinks) a well-informed conclusion about the direction of Constitutional Law”. Tribe says that this country did reach a conclusion and it was a conclusion that didn’t fit Robert Bork’s sense of what the Judiciary is about. You don’t think that’s true, you don’t think the people have?

Bork: No, and I think to be quite frank about it, the amount of disinformation and falsehoods that were told about me were such that the country could never have understood the case on the merits. And the odd thing is apparently the public opinion polls were very much more favorable if people watched C-SPAN than they were if they watched the nightly news.

Heffner: You mean if they saw everything and heard you?

Bork: Yes, instead of the clips. There are two things about that…so I don’t think the country has reached a consensus on that. If they understood that we’re talking about turning judges loose to set their moral and cultural agendas for them, I don’t think the country would like that. And they haven’t liked it in a number of cases. But the second thing is this: It doesn’t matter what a majority of the American people think they want from the Constitution. The Constitution is explicitly an anti-majoritarian document. It says in the Bill of Rights “Majorities may not do these things”, they may do other things but these things they may not do. So it strikes me as extremely strange to ask in a public opinion poll, “What should the Bill of Rights mean?”

Heffner: But you know it’s interesting that when you say the Constitution is an anti-majoritarian document…

Bork: Well in the Bill of Rights it is.

Heffner: And yet your position seems to be a majoritarian position.

Bork: No, not at all. I don’t understand that. My position is the Constitution says there are some things majorities can’t do.

Heffner: And beyond that?

Bork: And beyond that majorities can do things. The framers put their primary trust in the system of representation. The debates were all about various systems of representation. They said very little about the Bill of Rights even when the Bill of Rights came up to be passed later. They trusted majorities. But they did lay down certain things majorities can’t do and I think those things should be enforced against majorities. And I don’t care if a modern public opinion poll tells you that majorities don’t agree with that. That’s what the Bill of Rights is for, to frustrate majorities in those instances where the Constitution guarantees freedom.

Heffner: And beyond that?

Bork: And beyond that, we’re democratic. That means we vote. Now, a lot of people think majoritarian is a nasty word. All it means is “We just voted and most of us want this”.

Heffner: But of course, we had been voting and electing presidents who created, of the most recent court, out of it a position, a posture that you don’t approve of.

Bork: Yes, that’s right. Because a judge is not…should not be controlled by politics. A judge must be controlled by an intellectual understanding of his or her role in a Constitutional democracy.

Heffner: Do you think that the new president will follow suit with President Reagan and appoint the same kind of person?

Bork: I think so, I think so.

Heffner: Would you expect that he would nominate you again?

Bork: I don’t think so, no.

Heffner: Would you be in the running…in the running…that’s a poor word…Would you be willing to subject yourself to that experience again?

Bork: It would depend upon how pugnacious I was feeling that day.

Heffner: How do you feel today?

Bork: (Laughter) Not very pugnacious today.

Heffner: Judge Bork, I’m getting the signal that we just have a few seconds left. I need to end this program but I hope you will continue to agree to say here and do a second program with me, if this hasn’t been too distasteful?

Bork: It’s been very good. A pleasure.

Heffner: Dr., Judge Bork…you see I’m making you a Doctor, now…Judge Bork, thank you for joining me today on THE OPEN MIND.

Bork: Thank you.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s guest, today’s theme, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Richard Lounsbery Foundation; Mr. Lawrence A. Wein; and The New York Times Company Foundation.