What hope for the courts?

National Review, August 28, 1987 by Linda Bridges

THE 23RD national meeting of the Philadelphia Society was an historic occasion: not only because the Society had put together a formidable program to celebrate the two-hundredth anniversary of the United States Constitution; but because we were convened in Philadelphia. After all, the late Ben Rogge had answered the question, Why is it called the Philadelphia Society? by saying, Because its annual meeting is always held in Chicago. To walk into one's hotel, see Don and Norma Lipsett and all the other old friends-and have the hotel be not the Drake but the Philadelphia Sheraton is strange indeed.

The theme was "Constitutional Government: The Design, the Reality, the Prospect," and the speakers included the attorney general of the United States, the chairman of the Federal Trade Commission, four federal judges, and several prominent historians and constitutional scholars. As Robert Bork put it in his Friday-evening opening address, "Your list of speakers, I think, can only be compared with the 1927 Yankees. When I read it, and realized I was leading off, I was tempted to bunt just to get on base." With all due respect for judicial modesty, however, I must report that the batter took a full swing and hit one out of the park. I was reminded of the remark-I believe it was Dante's -that Jim Burnham used to quote from time to time. Some Guelph conclave was coming up, while there was trouble brewing at home. "If I go," said Dante, "who stays? If I stay, who goes?" I can't imagine there were many people in that room who will be glad to see Robert Bork leave the crucial D.C. Circuit Court. But, equally, I can't imagine there were many who weren't hoping, that April weekend, that a Supreme Court slot would soon open up.

I said the meeting was celebrating the Constitution's bicentennial; but, actually, the focus was more on mourning what had been done to the Constitution over the last forty of those two hundred years, and on formulating a strategy to rescue it from its Babylonian captivity.

For a century and a halt our nation understood the Constitution to be its most fundamental law-the framework within which our statutes and legal customs and holdovers from common law were arranged. Our nation still so understands it; but our judges and law professors, with a very few exceptions, do not. They are using their positions to advance a political agenda of their own, regardless of the words of the Constitution or the intent of its Framers. Why, then, call what they do constitutional law?

Because, said Judge Bork, the Constitution is the only basis of authority the judges have. "If the Constitution is not law, what authorizes a judge to set at nought the judgment of the representatives of the American people? If the Constitution is not law, why is the judge's authority superior to that of the President, Congress, the armed forces, the departments and the agencies, and that of everyone else in the nation? Why should anybody obey us? No answer exists."

Fifty years ago there was nothing labeled an "interpretivist" school of legal thought. The very term would have been seen as redundant: How could you practice constitutional law except by interpreting the Constitution? By the time the term was coined, however, it was almost to taxonomize an extinct species. Judge Bork related a conversation that took place a year or two ago: "I made the argument I just made"-that the Constitution is law-"and an eminent constitutional theorist at a very major law school said to me, 'Your notion that the Constitution is law must rest upon some obscure philosophical principle with which I am not familiar.' " Leaving aside the willfully outrageous, there are more plausible questions raised about methods of interpretation and the discovery of the Framers' intent. Some non-originalists, for example, use psychological and literary-critical analogies. A poet or a novelist, they will say, can be greater than he knows: His unconscious mind can make connections that his conscious mind might fail to understand or even to acknowledge. Just as an author is often not the best critic of his own work, so the Framers may not be the best judge of what their document means.

BUT, AS Lino Graglia might say, if the Framers didn't know what they meant, why should we suppose that judges will? Graglia argued, in one of the Philadelphia Society's Saturday panels, for the radical view that judicial review is itself unconstitutional; and added that judicial review is mostly unnecessary anyway, since only very, very seldom will a legislature pass an unconstitutional law. (Graglia told of making this statement in public recently and being challenged to give an example of a law that would be truly unconstitutional. Okay, he said: Suppose Congress passed a law saying women can't vote. But they can't do that, exclaimed his interlocutor. Of course not! said Graglia. That's why they don't: "They can read.")

Fortunately for our side, we know a lot about the Framing of the Constitution, and therefore about what the Framers did think they meant. As Stan Evans put it, "We are, after all, not dealing here with the Rosetta Stone." We have records of the debates; we have the Federalist Papers; we have the practices of the several states that ratified the Constitution. In the first Saturday panel, Evans, Mel Bradford, Russell Kirk, and Forrest McDonald performed a cluster of contextual case studies, finding no comfort for the non-originalists.