The Bork Challenge
As the 21st century begins, one of the most important debates will center on the role of the Courts in American polity. Over the second half of the 20th century, the court has become the imperial court, unassailable from criticism and above the daily pull of the democratic process. Gurcharan Das, an Indian writer, wisely observed that Democracy works best when run by modest men. Unfortunately, the Supreme Courts have been not a place of modesty but of men and women who view themselves superior to the rest of us. In a democratic setting, arrogance can be awarded by defeat at the polls, but members of the federal court are appointed for a lifetime. If there was a position where modesty is most important, it will be in the temperament of a federal judge.
Robert Bork is one of the brightest minds in American Constitutional law but in his 1987 hearing, he was “borked.” Borked is a term in which a judicial appointment is lambasted with lies, misrepresentation and basically dragged through the mud. You would have thought that African-Americans would have been put back in stocks, women enslaved in their own homes and Bill of Rights repealed if Bork was appointed to the Supreme Court. The Supreme Court was denied one of the great legal minds in the 20th century and a man who truly understood that, indeed, modesty was an important virtue for a judge and still is.
In his book, Tempting of America, Bork outlined the needed virtue of a Supreme Court Justice in discussing the various legal schools. What you can conclude, restraint and modesty are the two most important virtue that a Justice can possess. These virtue means quite frankly that a justice must understand what is not contained in the Constitution might just be better decided in the rumble of the democratic process. For a Judge to reach beyond the scribes of the Constitution is not just unconstitutional but arrogance.
When dealing with the debate on the Courts, Bork states, “The appropriate limits of judicial power, if such there be, are thus the center of an ancient, if not always fruitful, controversy.” For a judge, he writes, “The question is where such a judge finds the values that he implements.”
Modesty is an important virtue in a democracy among legislators and judges. Bork writes, “It is a commonplace that moral views vary both regionally within the United States and between socio-economic classes. It is similarly a commonplace that morality of certain elites may count for more in the operations of government than that morality which might command the allegiance of a majority of the people.” Bork added, “In no part of government is this more true than in the courts. An elite moral or political view may never be able to win an election or command the votes of a majority of a legislature, but may nonetheless influence judges and gain the force of law in that way.” That is why judicial activism that Bork deplore is popular among the elites for it allows those elites to use their power as judges to think that promoting their views is the highest aspect of their calling.
Article comments
1 - gonzo marx
oh my stars and garters...
and some call me a "phlogiston chemist"
i think i can sum up the Logical fallacy here with a single Quote..
Tom Donelson sez...
*Bork vision of the constitution does allow for the legislature to limit some rights over a period of time*
sorry..the Constitution and Bill of Rights clearly state the covenant by which the Citizens empower the Government...period
the writer goes on to state such drivel as that he is certqain the Legislature would "work these out in time" when speaking about the abridgement of our rights..
the Poster's Agenda is made manifestly clear in quite a few places...let's just pick one for now, shall we?
Tom Donelson sez..
*Those on the left, quite frankly, could care less about the Constitution but are merely political animals disguising naked abuse of political power for judicial prudence*
note how he slips in his own biased Agenda and attempts to pass it off as a Postulate, totally unproven, for his Hypothesis?
tsk tsk..no bullshit allowed unchecked..this Jester doesn't give a damn which side of the artificial , binary argument, Fence ya wanna sit on..
overall, a very pretty piece of Propaganda here...but when viewed thru the Lens of Symbolic Logic..it shows the Fallacy of any clever Trickery that attempts to prove it's point using fallacious Postulates to support the Theory by reverse engineering...
i completely Reject your unproven Assumptions, as would any thinking folks...even those on the "Right" and most especially Libertarians..if they were Honest with themselves and examined your Rhetoric closely..
nice try tho...and A for effort...but still, as thin as any Confidence scam when examined...
Excelsior!
2 - DrPat
Sorry, gonzo, but Tom's review is s not a pretty piece of propaganda - it's clunky and awkward. Needs grammar-check.
I give it a C-.
To Bork's book, and his thoughts on Constitutional law, however, I award an A. Note the statement: Roe decision began with a history... this may be nice to know but it had nothing to do anything to whether the right of abortion could be found in the Constitution. And The discovery this late in our history that the question was not one for democratic decision but one of constitutional law was so implausible that it certainly deserved a fifty-one page explanation…whatever one thinks of it, is not to be found in the Constitution.
It certainly gives us insight into what might have been the Bork opinion in such Consitutional issues - one of nine opinions, however. Associate Justices frequently "agree to disagree" with their equals on the Supreme Court, and their minority opinions are published.
Bork has done no differently in this book.
3 - gonzo marx
duly noted DrPat...
not having read the book itself, i would not dare offer Insight nor Critique on it
now, after i read it (as if) then all bet's are off
as for the "pretty piece" comment..i was attempting to be Kind...mea culpa
guess i am just Glad the System worked and this particular individual did NOT make it to the Court..
after all..our current President has said that Antonin Scalia is his idea of a "perfect, strict Constructionist"
the same Antonin Scalia that stated, from the bench..during Arguments about the 10 Commandments on Federal grounds "our Laws come from God"
too bad he is sitting on the bench, and not co-Authoring books with Bork
my Sin is not Pride...but Impatience with sloppy thinking and Propaganda...
but i have never claimed anything besides being a mental "child" of Heinlein, have i?
Excelsior!
4 - Dave Nalle
IMO that review was too damned long, but nonetheless interesting. What I got out of it was that Bork believes in a strict interpretation of the Constitution, but that his interpretation of the Constitution doesn't include certain fairly obvious implications of the Amendments in the Bill of Rights. The suggestion is that he thinks the Bill of Rights is somehow a lesser part of the Constitution, since he apparently doesn't think much of the rights to privacy or equal protection.
But he does have an awfully good point about court decisions which take precedent from foreign legal decisions. That's just right-out looniness.
Dave
5 - gonzo marx
Dave sez..
*But he does have an awfully good point about court decisions which take precedent from foreign legal decisions. That's just right-out looniness.*
totally Agree with ya there me boyo..
somebody check the score on Hell's hockey game pleeeze..
i get more of the Impression that he THINKS of himself as having strict Interpertation...but how strict can it be if ya toss out the Bill of Rights fer Bog's sake?
either way..the original Poster who typed out this drivel has shown that it is all about his anti-abortion agenda (alliteration?..absolutely!)
and i have yet to find a decent Argument that was reverse engineered from a preconceived Theory
now ain't this a bitch..we got an Engineer, a Lunatik and a Libertarian all agreed this guy is hokum...
folks..i couldn't make this shit up...
Excelsior!
6 - Tom Donelson
Thanks for the responses, now to correct the mistakes.
First, Bork does not diminish the bill of rights but understands clearly what our founding fathers meant.
Abortion-Until 1973, states essentially regulated abortion, why? because no judge could find a constitional reason to think otherwise. Read Roe and you wil clearly understand that the judges fail to actually use the Constitution to defend their decision.
The recent decision on the minor death penalty is pretty much the same. There was no constitutional case for it, other than the majority said they didn't like it and neither do the French. (By the majority reasoning, if a under 18 is too young to be granted the death penalty, then could it be assume that under 18 are too young to have an abortion? By the court own logic, Roe can't be applied to under 18 as well.)
The bottom line as Bork makes clear, abortion decision was not based on what the Constitution says but what the judges decided they wanted. So does it bother anyone that a major court decision has little to do with our founding fathers or the Constitution says? Obviously Dr. Pat thinks it okay that a judge can decide what is constitutional by ignoring the Constitution.
The only true meaniful opposition to Bork comes from the libertarian for the simple reason both Bork and Libertarian (courtesty of Nalle) understand that the constitution limits the power of government to rule. The question is where to draw the line.
The reality is that our founding fathers allowed local laws against pornography, understood that occasional display of the ten commandments or school prayer in school did not violate the first amendment and that campaign finance rules that restrict political speech did. Our present Court doesn't. Maybe the question to ask is why was school prayer considered constitutional till 1962 or that abortion was a state issue till 1973 or that gay right decided locally till recently? Why do the left continue to depend upon the courts to decide the issues that they can't even get passed in blue states?
Our founding fathers left plenty of notes to review during the debate on the Constitution. The real question is why do those on the left fear for example, abortion being left to the states? The answer is that abortion would be legal but restricted and that protection for the mother and the unborn child would be put in place. The pro-choice movement would be left with a half of loaf and they want it all!
The recent decision of depending upon extra legal foreign examples is another example of making the Constitution null and void. When you decide cases not on what is in the Constitution but outside, then why a written Constitution?
Now here is my challenge to all. Nalle understand that the Constitution limits the power of government and draws the line. Now for all who read this and find Bork wrong- I want you to tell me where the Constitution draws the line on:
Area of economic freedoms- exactly where should the line be drawn on government involvement in our economic life?
Can local governments use zoning laws to prohibit the development of adult book stores in particular areas or is this a violation of free speech? Can local government pass laws to restrict pornography under any circumstances? Including child pornography?
Under what circumstances can society either on state or federal define marriage? Could a local or federal legislature declare bigamy illegal, even it is consensual?
Is political speech being threatened by current election laws? Why or why not?
Why is it okay for Congress to begin the day with a prayer or that the President is sworn in by a bible but a school child stands for a silent moment of mediation is unconstitutional?
Bottom line, what does the Constitution prohibits the government from doing and what it does it allow it to do. Let the debate begin.
7 - Dave Nalle
>>The recent decision on the minor death penalty is pretty much the same. There was no constitutional case for it, other than the majority said they didn't like it and neither do the French. (By the majority reasoning, if a under 18 is too young to be granted the death penalty, then could it be assume that under 18 are too young to have an abortion? By the court own logic, Roe can't be applied to under 18 as well.)<<
There actually is a constitutional case for it, because it could be construed as cruel and unusual punishment. The court can perfectly reasonably conclude that what is fine for adults is cruel and unusual when applied to minors. Perfectly logical extension of the bill of rights.
>>The bottom line as Bork makes clear, abortion decision was not based on what the Constitution says but what the judges decided they wanted. So does it bother anyone that a major court decision has little to do with our founding fathers or the Constitution says? Obviously Dr. Pat thinks it okay that a judge can decide what is constitutional by ignoring the Constitution. <<
If you want to go strictly by the constitution then all abortion should be legal, or at best regulated solely by the individual states. The constitution does not guarantee foetuses a right to be born under any interpretation of any of the articles or amendments. Roe was based solely on the rights of the mother, because being a living person, she at least has privacy rights. I'd go with the stricter inperpretation myself. Abortion law should solely be state law.
Ooh, a test:
>>Area of economic freedoms- exactly where should the line be drawn on government involvement in our economic life?<<
The 16th amendment screwed this one up. Without it the answer would be none.
>>Can local governments use zoning laws to prohibit the development of adult book stores in particular areas or is this a violation of free speech?<<
They're not restricting speech, they're restricting property rights, which are also guaranteed in the Constitution. But at the same time it's reasonable to say where certain sorts of businesses can be located, even though they should not be able to ban those businesses, but determining community standards and the location of businesses should be the role of state and local government, not the federal government or courts.
>> Can local government pass laws to restrict pornography under any circumstances? Including child pornography?<<
Child pornography violates the privacy rights of the child, because they cannot consent to it legally, so there's no question at all there. Other pornography cannot be restricted because it is a form of free speech and involves only consenting adults.
>>Under what circumstances can society either on state or federal define marriage? <<
That should probably be up to the states, or else prohibited alltogether.
>>Could a local or federal legislature declare bigamy illegal, even it is consensual?<<
I really can't imagine a constitutional justification for this.
>>Is political speech being threatened by current election laws? Why or why not?<<
It's certainly being restricted in goofy and capricious ways by current campaign laws.
>>Why is it okay for Congress to begin the day with a prayer or that the President is sworn in by a bible but a school child stands for a silent moment of mediation is unconstitutional? <<
Because the Constitution sets the three branches on an equal footing, so while the Supreme Court can rule over school prayer it doesn't have jurisdiction over the practices of the Congress.
Dave
8 - Tom Donelson
Dave,
You have demonstrated one of MY major pointS, namely only true legimate oppostion to the original constitutionist thoughts of Bork and others are the libertarian right. At least you are using the Constitution to based your reasoning.
On the point of the death penalty case, you have a point that cruel and unusual punishment could be used but it wasn't the main focus of that case. Beside why would a penalty be cruel for a 17 year old and not a 18 year old? That abritary line to say the least.
As for the Roe, the main problem is that the right of privacy claimed is virtually non-existent or not discovered until 1973. When the judges decision is reviewed, the judges rarely depended upon constitutional reasoning and even pro-choice jurist at the time agreed with the case had severe problems.
Ramesh Ponnura of NR had a nice piece a year ago on the historical basis used in the decision and he made the case convincely that the judges used inaccurate historical data to base the case. The point that I will make is that Roe was wrongly decided and even the main protangest, Roe, has since recanted her part in the case.
I agree with you on campaign finance rules since quite frankly, McClain-Feingood should have been declared unconstitutional and now the FEC has bloggers in sight as far as this concern.
You distinguish between private property on zoning vs.actual speech. I would agree with you on this and your point on CHILD pornography is right. Our founding fathers consider political speech far more important and certainly, the courts until recent times have been tolerant of restriction of porn as oppose to political speech. The irony today is that a pornographer has more rights than a political activist when it comes to speech. Thanks to the Imperial Court.
Finally, you and consevative Rick Santorium of PA agree on one thing. The recent decision dealing with gay rights are leading to a state in which there can be no restriction on legal relationship including bigamy.
As far as school prayer, there were no attempt by the federal government to outlaw either state supported churches or schools. At the time of the passing of the Constitution, at least half of the states still had state supported churches. By the mid 1850's, state churches were essentially non-existant by state laws. The Constitution dealt narrowly and strictly with a federal office test and banned federal tax support of a specific "church." School prayer passed on a local level would have easily past founding fathers constitutional tests. Now whether it is sound or was sound policy to have a school prayer is another matter and many local school boards by the time of the original decision outlawing school prayers did not have school prayers and the prayer that was outlawed by the courts were a colloboration between various Christian and Jewish leaders. Bad decision. On this point, Bork is correct that this was and should a decision left to school boards. At least if you are depending upon historical understanding of the clause. Personally, I would oppose but it is still a matter left to the hands of legislators and school board. Most would not bother.
I will conclude that I agree with much of economic analysis in your various columns and quite frankly, the less that government does is better than more. Points I have made in my various books and writings.
THe real issue is how active should the court be and when. The left viewpoint is that the Constitution is living and malleable to any and all situation. No need to depend upon our founding fathers. Bork and the libertarian wing such as yourself believes in limitations need to be placed on government. The libertarians are more willing to use the Courts to enforce them. The difference is that Bork is more willing to give leeway to legislator. Only these two factions have much standing when it comes to school of Constitutional law. Unfortunately, there are no true libertarians on the SCUSA and very few in federal court in general. And the Bork school are outnumbered by the leftist school of thought. Which is why Imperial Court threatens the fabric of our society. If the Courts can make decision, independent of the Constitution- then we become a rule of men as oppose to laws.