Bound by the Constitution

...By applying this philosophy as law, the Supreme Court would impose current moral or social ideals on the American people, ideals shared by the professoriat, but not necessarily by the people...

...He has written on abortion issues for Commonweal...

...Dworkin, professor of jurisprudence at Ox- ford, uses the Dronenburg case to attack Bork's rejection of a constitutional right to homosexual con-duct...

...In contrast, Robert Bork offers a searching understanding of the Constitution and its history and structure, both of its democratic system of government and of its guarantees of freedom...

...Bickel himself became alarmed at the extent to which the Supreme Court, without rationale or principle, had declared new values...

...and a flexible, even generous interpretation of the principles and rights which are expressed in the Constitution or are inferable from it...

...In fact, Robert Bork understands the relationship of law and morals and the distinction between them as many of his critics do not...

...A judge who refuses to deal with unforeseen threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair, and reasonable meaning, fails in his judicial duty...

...In an article published in 1985 and in speeches given in 1984 and 1985, Robert Bork offered a major counter to this theory, capping the debate he had engaged in as a law teacher...

...Thus Kenneth Karst of the University of California at Los Angeles, writing in the Harvard Law Review, found "a principle of equal citizenship" underlying the Fourteenth Amendment's requirement of "equal protection of the laws...

...Second, when we understand that the Bill of Rights gives us major premises and not conclusions, the doctrine is not at all anachronistic...

...Bork's writing shows no program for dismantling prece-dent...

...John Hart Ely of Stanford, Henry Monaghan of Columbia, and Robert Bork have said no, there is no warrant in the Constitution for the imposition of new values by the justices...

...The basic question is: Can the Supreme Court, whose authority is to decide cases according to the law of the Constitution, be justified in imposing new values not contained in the Constitution...

...How would Bork go about interpreting the Con- stitution...

...In place of democratic self-government, in which the people, through their elected representatives, choose the values by which they are to be governed, the new theory would substitute the ideas of an elite, to be enforced by the Supreme Court...

...These general provisions are interpreted as a call to the Supreme Court to engage in creative constitutional adjudication to declare constitutional new values and rights not expressed in or inferable from the Constitution...

...Perry is less forthright in his analogy to the prophets, lone individuals who confronted kings, priests, and people in the name of God's justice...

...R obert Bork insists primarily on fidelity to the Constitution as law...

...My own view is that need and other principles justify types of Affirmative Action such as programs for the admis-sion of minority students...

...TWO VIEWS OF THE BORIC NOMINATION: THE STAKES & THE ISSUES BOUND BY THE CONSTITUTION COURTS DO NOT WRITE THE LAWS DANIEL A. DEGNAN Law is an arena of ideas, Robert Bork says, and within this arena a new theory seeks to import into the Constitution a set of current moral philosophies...

...Bork offers two replies...

...Several points need to be made in light of the debate over Judge Bork's nomination...

...In a libel action against the columnists Evans and Novak, for example, Judge Bork wrote a powerful concurrence joined by three other judges, supporting judgment for the defendants based upon the First Amendment...

...Michael Perry of Northwestern, who has written on judicial review, is a leading noninterpretivist...

...Atook at some leading noninterpretivists shows that Bork was accurate, even gen- tle, in his criticism...

...Predicated upon a "theory of legislative failure," Fiss's rationale is noninterpretivist...

...The noninterpretivists propose moral ideals to be enforced by the Supreme Court...

...The effort to enforce one will end in "constitutional nihilism," and appeal to the personal values and preferences of the justices...

...Owen Fiss of Yale, also writing in the Harvard Law Review, has called for a program of "structural reform" to be mandated by the Supreme Court...

...its source lies in the effort to construct the common good, the highest accomplishment of justice, as Aquinas puts it...

...11 September 1987: 483...

...An expansion by the Supreme Court of rights and values beyond those expressed by the Constitution or inferable from it, Bork holds, would erode the principle of majority rule and subject the people, in large areas of life, to rule by the non-elected judiciary...

...Robert Bork's writings have centered on two converging trends in constitutional law...

...The question was whether, in what was otherwise a column expressing political opinion, Evans and Novak had reported a fact which could be the basis 482: Commonweal for the libel action...

...He has also pointed to views such as Charles Black's, that the structure of the Constitution offers a proper, alternative ground for some of the Supreme Court's more strained decisions...

...This means that society is forbidden "to treat an individual either as a member of a dependent or inferior caste'' or to impose a "stigma.'' The new principle forbids, for example, the "dependency of women...

...A remarkable series in the Washington Post (July 26-28, 1987) has admirably traced the changes in his life and thought...

...Bork's position is shared by thoughtful people, including many counted as liber-als...

...The intentionalist judge must then supply the minor premise in order to protect the constitutional freedom in circumstances the Framer could not foresee...

...As the Post reports, he soon rejected both the effort and the principles, in part through a seminar taught jointly with Alexander Bickel...

...Bork is a strong supporter of the purpose behind the equal protection clause, guaranteeing blacks equality against dis-crimination...

...Building upon the pioneering work of the late Alexander Bickel of Yale, these scholars have seized upon two so-called "open-textured" clauses of the Constitution, notably "due process of law" and "equal protection of the laws...

...Perry, a forthright and original scholar, states that there is neither a textual nor historical foundation for noninterpretive review in human rights cases...

...moral ideals or principles which underlie the Constitution and which give it meaning...

...even the decision's supporters are inclined to offer substitute justifications...

...One must search, he said in 1985, for the core principles and purposes of the text in the light of its language, history, and the structure of the Constitution itself...

...Bork, in contrast, understands law as an exercise of practical wisdom ordering the life of the political community...

...and his experience as a lawyer and judge all suggest that he would, as a justice of the Court, distinguish his role from that of the academic and take a conservative approach to precedent...

...Karst is proposing that these prin11 September 1987: 481 ciples of constitutional law become rights enforced by the Supreme Court...

...is a distortion of Affirmative Action and of equal protection...

...Bork, in my opinion, would be a profoundly moral justice on the Supreme Court, faithful to constitutional law and constitutional rights, and respectful of the work of representative democracy, which is to construct the common good...

...In short," Bork says, "all an intentionalist requires is that the text, structure, and history of the Constitution provide him not with a conclusion but with a premise...

...The charge stems from a 1971 article in which Bork argued that the job of choosing new values would force judges to choose one value over another and so to rely, ultimately, on an exercise of personal choice...

...What is frightening about Roe," John Hart Ely wrote, "is that this super-protected right is not inferred from the language of the Constitution, the Framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure...

...And it creates a constitutional right of the poor to the fulfillment of just wanfs...

...Bork rejected a mechanical distinction between opinion and fact, in order to protect free expression of political opinion...

...In his later writings, Bork shows a deep concern for the moral sense of the community...

...According to the noninterpretivists, the principles they discover have force equal to or greater than the constitutional provisions themselves...

...Bork's respect for the Court as an institution and for its role in American life...

...Bork is an intellectual whose views have changed and developed...

...Second, Bork insists that the law of the Constitution is not to be found in moral speculation...

...It would be wrong if Robert Bork were defeated because he has considered the abortion decision to be an unconstitutional one...

...Another answer, however, the dominant one, is the "nonin-terpretivist" theory...

...The essence of equal citizenship, Karst writes, "is the dignity of full membership in the society...

...Rather, the function of prophecy justifies infringement on the democratic principle...

...Second, while the country and the Court itself have been assimilating this explosion of constitutional law, some scholars have been urging the Court to define new rights of lifestyle and choice, to reform institutions of government, and to enforce constitutional rights to minimum levels of income and health care...

...That premise states a core value that the Framers intended to protect...

...Third, the effort to import new values into the Constitution embodies what Bork and others call the "Madisonian di-lemma...

...He has suggested reformulation of doctrine and has severely criticized Supreme Court opinions and methods, from his viewpoint as an academic...

...Using an empirical or economic idea of values, Bork referred to them as "gratifications...

...He thinks, however, that preference or quotas — in hiring or admission to schools, etc...

...The Constitution's foundational principle is democ-racy or majority rule, yet the Constitution also protects certain rights — such as freedom of religion and free speech — against majority rule...

...In Perry's picture the Supreme Court as prophet holds all the power Noninterpretivism appears at its worst, I think, in Ronald Dworkin's attack on Robert Bork in the Nov...

...Opinion was absolutely protected, fact was not, under Supreme Court precedents...

...At the risk of dignifying it, I should mention a charge against Bork, that he is a moral relativist who would be unable to grasp the principles expressed in the Constitution...

...Bork's judicial philosophy builds on these fundamentals...

...his Burkean philosophy, with its regard for practical wisdom, experience and tradition, history and community...

...What authorizes the Court so to govern...

...This exercise of practical wisdom is profoundly moral...

...The noninterpretivists, Bork argued, would substitute an abstract, academic system of current moral philosophies and concepts for the text and law of the Constitution...

...In the late 1960s, Bork himself sought to impose libertarian principles on the Constitution...

...Bork has addressed the difficulty of interpreting broad, general clauses of the Constitution such as those of the Fourteenth Amendment...

...From the ideals and principles discovered, the Supreme Court should develop new constitutional rights and values...

...Fiss states: "To simply postulate the supremacy of the more majoritarian branches, the legislative or the executive, is no answer, for, as we saw, the people's preferences are no standard, and there is no discernible connection between majoritarianism and the meaning of a constitutional value...

...Bork's intellectual battle with this new constitutional theory is the key to his judicial philosophy: respect for democratic self-government and for the Constitution as law...

...none of this is effective in face of an activist Court...

...Dworkin's new principle of constitutional law, his opinion about homosexuality, his dismissal of contrary claims as prejudice and superstition, and his confusion of legislative policies with constitutional rights combine to create a new constitutional right to homosexual conduct...

...Much of the law, to many noninterpretivists, is deeply suspect as an exercise of power, of "majoritarian preference," intruding on the freedoms of individuals and minorities...

...the argument was designed to test a judge's approach to legal principle...

...Fiss calls on the Supreme Court to mandate reform of prisons, hospitals, public schools, the government bureaucracy itself...

...The solution, he insists, is not to derive rights from current moral theories or from the personal values of the justices...

...First, the Supreme Court has been engaged in the most active period in its history...

...Our democratic polity achieves moral growth when the Supreme Court exercises a prophetic role, Perry says, offering a "moral critique" to our society when it declares values and rights which the people have not yet accepted...

...Judge Bork, by contrast, first pointed out that the Supreme Court in 1976 had summarily affirmed a judgment upholding a Virginia statute making private, consensual homosexual conduct a criminal offense...

...The writings of Robert Bork and of the noninterpretivists call up my final point...

...As the new Encyclopedia of the American Constitution reports, in an essay by Kenneth Karst, "the Roe opinion has found few defenders...

...Unless the Constitution expresses law to be interpreted and applied in a principled, rational way, there is no basis for the Supreme Court's invalidation of acts of the legislature in the name of the Constitution...

...As Haskins and Johnson, historians of the Marshall court have put it, the case of Mar-bury v. Madison, establishing judicial review, "presaged the development of a full-scale concept of rule of law and a deep-seated respect for the primacy of legislative power as well as for the concept of separation of powers.'' Bork would add that judicial restraint is not a signal for a crabbed approach to new constitutional problems...

...The values of the Bill of Rights are timeless, Bork says, and courts "must not hesitate to apply them to new circumstances...

...If Bork were now opposed to some of the civil rights laws as he was in 1963, he would properly be rejected...

...If this were an argument for public policy, or a moral argument, most of us would welcome it, although we would want more precise definitions and more analysis...

...Here, as Robert Bork and others have said, is a deep distrust of democracy...

...Perry views the Court as a "policy-making institution" which looks ahead to emergent principles in terms of which "fragments of a new moral order can be forged...

...After Dronenburg, a Navy veteran of nine years, admitted to repeated acts of homosexuality in Navy barracks, in violation of regulations, the Navy ordered his discharge...

...The constitutional principle of the equal protection clause, Dworkin writes, is that "government ought not to discriminate against any minority when the discrimination reflects only prejudice...

...a refusal to read into the Constitution current moral philosophies or systems...

...The theory, in brief, searches for the DANIEL A. DEONAN, S.J., teaches at Seton Hall University School of Law, where he was formerly dean...

...He finds it in an analogy to the function of the prophets in biblical Israel...

...Having drafted a new version of the equal protection clause, Dworkin proceeds to apply it: "Superstitions about homosexuality have been exposed and disproved, many states have repealed laws making homosexual acts criminal, and those laws that remain are widely regarded as based on nothing but prejudice...

...This is not Karst's intention, however...

...Judicial restraint and original intention, in Bork's use of these terms, refer to the classical position in constitutional law of Story, Kent, Cooley, and Thayer...

...It is not a right-wing ideology, and it is not a simplistic attempt to find original intention in the minds of the Framers or to confine the Constitution to problems of earlier times...

...First, the question is never asked about the Constitution itself, but only about claims to new rights...

...8, 1984 New York Review of Books...

...Perry looks, therefore, for another justification...

...Rejecting Dronenburg's claim of constitutional right, Bork said: "If the revolution in sexual" mores that appellant proclaims is in fact ever to arrive, we think it must arrive through the moral choices of the people and their elected representatives, not through the ukase of this court...

...The description was unfortunate, but Bork was not offering a moral theory...

...Perry forthrightly concludes that the democratic principle is not preserved in this process by the people's power to amend the Constitution or to resist in other ways...

...Moreover, from Plato and Aristotle until today, there has not been agreement on a system of moral philosophy...

...it demands that "economic inequalities do not seriously impair the ability of the disadvan-taged to participate as effective members of the society...

...To the frequent objection, "Why should we be ruled by dead men...