Mitt Romney has announced that Robert Bork will be advising him about nominations to the Supreme Court. This post describes and critiques Bork's approach to constitutional interpretation.
Robert Bork has staked his career - and made his livelihood - on the particular approach that he takes to constitutional interpretation. Bork is committed to interpreting the Constitution in accordance with what he believes constitutes the "original intent" of the framers of the Constitution. The problem with Bork's approach is that he does not truly follow the intent of the framers. Instead, his approach to constitutional interpretation is more appropriately called "original application" not "original intent."
Bork argues that the Constitution should be interpreted in accordance with the intent of the framers. That is no doubt true. No constitutional scholar - no American - should dispute that. In 1776 the founders of this nation announced in the Declaration:
"Governments are instituted among men, deriving their just powers from the consent of the governed."
In 1803 in Marbury v. Madison Chief Justice John Marshall wrote that the people have the "original right" to create a government, to specify its powers, and to set limits upon those powers:
"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?"
In 1816 in Martin v. Hunter's Lessee Justice Joseph Story described the Constitution in these terms:
"It is the voice of the whole of the American people."
From these premises Bork rightly derives the conclusion that the Constitution must be interpreted in accordance with the intent of the framers. The power of Congress to enact laws, the power of the President to enforce laws, and the power of the courts to interpret the law and to declare laws unconstitutional - all of these powers are conferred by the people through the Constitution. The entire government including the judiciary has no power to act except as granted by people in the constituent act that is the Constitution. Accordingly Bork is correct in concluding that the Constitution must be interpreted in accordance with the "original intent" of the framers.
Where Robert Bork is mistaken is in his particular understanding of "original intent." He takes it mean that the framers intended that we should parrot the precise ways in which their society applied constitutional doctrine. That does a disservice to the Constitution, and it dishonors our ancestors who fought so hard to enshrine certain fundamental moral principles into our basic law.
For example, the generation who fought and won the Civil War and who adopted and ratified the Thirteenth, Fourteenth, and Fifteenth Amendments would be appalled at Bork's crabbed interpretation of those portions of the Constitution. Abraham Lincoln never said that the Civil War was fought so that future generations of Americans would have those rights, and only those rights, that were recognized in America in 1868. He said that this nation was "conceived in liberty and dedicated to the proposition that all men are created equal." In the first speech of his campaign for the U.S. Senate against Stephen Douglas in 1858 he explained that equality is a sacred principle:
"My friend [Stephen Douglas -ed.] has said to me that I am a poor hand to quote Scripture. I will try it again, however. It is said in one of the admonitions of the Lord, ``As your Father in Heaven is perfect, be ye also perfect.'' The Savior, I suppose, did not expect that any human creature could be perfect as the Father in Heaven; but He said, ``As your Father in Heaven is perfect, be ye also perfect.'' He set that up as a standard, and he who did most towards reaching that standard, attained the highest degree of moral perfection. So I say in relation to the principle that all men are created equal, let it be as nearly reached as we can. If we cannot give freedom to every creature, let us do nothing that will impose slavery upon any other creature. [Applause.] Let us then turn this government back into the channel in which the framers of the Constitution originally placed it. Let us stand firmly by each other. If we do so we are turning in the contrary direction, that our friend Judge Douglas proposes---not intentionally---as working in the traces tend to make this one universal slave nation. [A voice---``that is so.''] He is one that runs in that direction, and as such I resist him.
My friends, I have detained you about as long as I desired to do, and I have only to say, let us discard all this quibbling about this man and the other man---this race and that race and the other race being inferior, and therefore they must be placed in an inferior position---discarding our standard that we have left us. Let us discard all these things, and unite as one people throughout this land, until we shall once more stand up declaring that all men are created equal." (Lincoln, 7 Collected Works 501, Speech at Chicago, July 10, 1858))
Lincoln didn't understand "equality" to be a static state of affairs. It is instead a dynamic ideal, a transcendent truth. Equality, for Lincoln, was not some state of affairs as it existed in the distant past, but rather a goal that we must strive to achieve. When the founding generation declared that "all men are created equal," Lincoln said,
"They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere." (Lincoln, 2 Collected Works 406 (Speech at Springfield, June 26, 1857)
Lincoln understood equality to mean that every person has the right to equal opportunity to advance and succeed. He explained this to the United States' troops, and as at Gettysburg he inspired Americans to believe that this principle is worth fighting for:
"I suppose you are going home to see your families and friends. For the service you have done in this great struggle in which we are engaged I present you sincere thanks for myself and the country. I almost always feel inclined, when I happen to say anything to soldiers, to impress upon them in a few brief remarks the importance of success in this contest. It is not merely for to-day, but for all time to come that we should perpetuate for our children's children this great and free government, which we have enjoyed all our lives. I beg you to remember this, not merely for my sake, but for yours. I happen temporarily to occupy this big White House. I am a living witness that any one of your children may look to come here as my father's child has. It is in order that each of you may have through this free government which we have enjoyed, an open field and a fair chance for your industry, enterprise and intelligence; that you may all have equal privileges in the race of life, with all its desirable human aspirations. It is for this the struggle should be maintained, that we may not lose our birthright---not only for one, but for two or three years. The nation is worth fighting for, to secure such an inestimable jewel." (Lincoln, 7 Collected Works (Speech to 166th Ohio Regiment, August 22, 1864))
Bork construes the Equal Protection Clause to mean that women do not have to be treated equally under the law because they were not treated equally in 1868. He contends that poll taxes and malapportionment are constitutional because those practices existed in 1868. He even has a difficult time explaining why Brown v. Board of Education should be followed in light of the fact that many northern states had segregated schools in 1868.
Is there any real doubt that if Lincoln and the framers of the Fourteenth Amendment were brought back to life and made aware of all the advances since 1868 that they would say that racial segregation in the public schools is inconsistent with Equal Protection? Is there any doubt that if they were informed of the progress of women in our society that they would find that it was both wrong and unconstitutional for a state to exclude women from a prestigious public university?
Bork simply does not believe that the Constitution stands for the ideals of equality, liberty, and fairness. To quote a famous American, "I find your lack of faith ... disturbing." (OK, maybe Darth Vader wasn't American ... but he is famous!) I find it disturbing that Bork would rob the Constitution of its vital moral content and substitute a lifeless restatement of the past that was in many respects so sad and wretched. That is not what the framers intended.
Our ancestors did not fight and die in the Civil War for the idea that "equality" should be interpreted to mean "the state of the law in 1868." They sacrificed - many hundreds of thousands of Americans like Lincoln gave the last full measure of devotion - so that we would continue the struggle to make our society ever more equal. In Lincoln's words,
"In relation to the principle that all men are created equal, let it be as nearly reached as we can."
With the enactment of the Fourteenth Amendment the Civil War generation enshrined this ideal in the Constitution. The Constitution should be interpreted in accordance with the intent of the framers - not how Robert Bork would interpret it.
Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.
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