Jaffa v. Bork: an exchange - philosophical debate between Claremont Institute Senior Fellow Harry V. Jaffa and former Judge Robert Bork over issues of constitutional law and Bork's review of 'Original Intent and the Framers of the Constitution' by Jaffa

National Review, March 21, 1994

Judge Bork concludes his discourse in NR's February 7 issue as follows:

Written in dyspeptic prose, Original Intent
 and the Framers of the Constitution is one of
 the least coherent, least consequential, and
 most disingenuous pieces of constitutional
 theorizing on record: incoherent because
 Mr. Jaffa offers conclusions that cannot
 possibly be tortured out of constitutional text,
 history, or structure; inconsequential
 because, so far as is apparent, his argument
 has applicability only to one pre-Civil War
 case; disingenuous because he misrepresents
 not only that case but the Constitution
 itself. This may sound unduly harsh. I
 have tried to show that it is only duly
 harsh.

I have been writing for NATIONAL REViEW for nearly thirty years, and I believe its readers are sophisticated enough to tell a book review from a temper tantrum. No one before has pronounced my prose "dyspeptic," although clearly it has given Judge Bork heartburn. It is not difficult to know why.

The July 9, 1991, issue of NATIONAL REViEW published an article entitled "The Closing of the Conservative Mind: A Dissenting Opinion on Judge Robert H. Bork." In it I offered a critique of the central thesis of Judge Bork's then recently published book, The Tempting of America: The Political Seduction of the Law. In the intervening two and a half years Judge Bork has studiously ignored that critique, but now that it is incorporated in Original Intent and the Framers of the Constitution, he has condescended to descend from his pedestal.

Bork's book is built around the proposition that liberal judges write their own subjective opinions into constitutional law. They attribute to the Constitution rights that are the judges' own invention, and then devise remedies on the ground that the Constitution requires them. Judge Bork and I are agreed that that is wrong and bad. I don't like liberal judicial activism any more than he does.

According to Bork, however (in Tempting), the first case in which this occurred was that of Dred Scott v. Sandford, in which Chief Justice Taney, in his opinion for the Court, discovered a constitutional right of slave ownership, which "right is nowhere in the Constitution." Because of this alleged right, says Bork, Taney pronounced the Missouri Compromise ban on slavery, er any prospective congressional ban on slavery in any United States territory, to be unconstitutional. According to Bork,

  this was the first appearance in American
  constitutional law of "substantive due
  process," and that concept has been used
  countless times since by judges who want to write
  their personal beliefs into a document that,
  most inconveniently, does not contain such
  beliefs.

The only trouble with this analysis is that Taney did not invent a right to slave ownership that is "nowhere to be found in the Constitution." The recognition of the right of slave ownership is massively present within the Constitution of 1787. Taney did not, as Bork says, read a right of slave ownership into the Constitution.

This is not the only example of Bork re-writing the Constitution to suit his purposes. He does the same thing to the Ninth Amendment, which reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Professor Douglas Kmiec of Notre Dame University Law School, who was head of the Office of Legal Counsel in the Meese Justice Department, takes Bork to task for arguing that these words "are a meaningless 'inkblot.'" In The Attorney General's Lawyer (1992, pp. 35 to 37), Kmiec writes that "Bork's inkblot assertion cannot stand. If the Constitution is law, no part of it can be unenforced." Kmiec also writes that "Madison... perceived the Ninth Amendment as incorporating natural law . . ." which is of course why Bork de-incorporates it from the Constitution. So much for the advocate of a jurisprudence of "original understanding" ! It is just as illegitimate for a conservative to deny rights that are recognized by the Constitution as it is for liberals to invent rights not recognized by it. I wrote that no one, so far as I knew, in two hundred years (that is, before Judge Bork) had ever denied that the Constitution of 1787 recognized the lawfulness of slave property. This is why I said that Bork had bowdlerized the Constitution. Judge Bork now admits that

 The Constitution certainly recognized that
 slaves were held pursuant te the laws of
 some states, but the Constitution most
 emphatically did not guarantee such a right.

It bears repeating that in his book Judge Bork asserted categorically that recognition of a right of slave ownership was "nowhere to be found" in the Constitution. Now he admits that the Constitution of 1787 "certainly recognized" such a right. But he pours out his invective upon me for discovering his error.

Judge Bork compounds his error, even while denying it. He says that the Constitution did nothing to guarantee slave property. But consider the words of Article IV, Section 2: