The case against political judging: the man who should now be serving on the Supreme Court defends judicial restraint, and reflects upon the excesses of his liberal opponents - includes related article

National Review, Dec 8, 1989 by Robert H. Bork

The Case Against Political Judging

WHAT WAS once the dominant view of constitutional law--that judge is to apply the Constitution according to the principles intended by those who ratified the document--is now very much out of favor among the theorists of the field. In the legal academies in particular, the philosophy of original understading is usually viewed as thoroughly passe, probably reactionary, and certainly--the most dreaded indictment of all--"outside the mainstream." The fact says more about the lamentable state of the intellectual life of the law, however, that it does about the merits of the theory.

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 consonant with the design of the American Republic.

When we speak of "law," we ordinarily refer to a rule that we have no right to change except through prescribed procedures. That statement assumes that the rule has a meaning independent of our own desires. Otherwise there would be no need to agree on procedures for changing the rule. Statutes, we agree, may be changed by amendment or repeal. The Constitution may be changed by amendment pursuant to the procedures set out in Article V. It is a necessary implication of the prescribed procedures that neither statute nor Constitution should be changed by judges. Though that has been done often enough, it is in no sense proper.

What is the "meanng" of a law, that essence that judges should not change? It is the meaning understood at the time of the law's enactment. What the Constitution's ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. If is important to be clear about this, because the search is not for a subjective intention. If, for instance, Congress enacted a statute outlawing the sale of automatic rifles and did so in the Senate by a vote of 51 to 49, no court would overturn a conviction under the law because two senators in the majority later testified that they had really intended only to prohibit the use of such rifles. They said "sale" and "sale" it is. Thus, the common objection to the philosophy of original understanding--that Madison kept his notes of the convention at Philadelphia secret for many years--is off the mark. He knew that what mattered was public understanding, not subjective intentions.

Law is a public act. Secret reservations or intentions count for nothing. The original understanding is thus 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.

THE SEARCH for the intent of the lawmaker is the everyday procedure of lawyers and judges when they 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 are expounding." By that he meant 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 in that same opinion he also wrote that a provision must 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 Marybury v. Madison Marshall based the judicial power to invalidate a legislative act upon the fact that a 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.

We would at once criticize a judge who undertook to rewrite a statute or the opinion of a superior court; and yet such judicial rewriting is often correctable by legislatures or superior courts, whereas the Supreme Court's rewriting of the Constitution is not correctable. 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 while agreeing, at least in principle, that there should be no departure from the understanding of those who enacted a statute or joined a majority opinion. 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.

It is here that the concept of neutral principles, which Herbert Wechsler has said are essential if the Supreme Court is not to be a naked power organ, comes into play. Wechsler, in expressing his difficulties with the decision in Brown v. Board of Education, said that courts must chose principles which they are willing to apply neutrally; to apply, that is, to all cases that may fiarly be said to fall within them. This is a safeguard against political judging. No judge will say openly that any particular group or political position is always entitled to win. He will announce a principle that decides the case at hand, and Wechsler has no difficulty with that if the judge is willing to apply the same principle in the next case, even when it means a group favored by the first decision is disfavored by the second.