The Great Debate

Speech by Judge Robert H. Bork at the University of San Diego Law School on November 18, 1985
By Robert H. Bork
November 01, 1986

Judge Robert H. Bork

United States Court of Appeals for the District of Columbia
Before the University of San Diego Law School, November 18, 1985
(Reprinted originally in the University of San Diego Law Review

To approach the subject of economic rights it is necessary to state a general theory about how a judge should deal with the Constitution of the United States in adjudication that brings that document before the court. More specifically, I intend to speak to the question of whether a judge should consider himself or herself bound by the original intentions of those who framed, proposed, and ratified the Constitution. I think the judge is so bound. I want to demonstrate that original intent is the only legitimate basis for constitutional decision and I wish to meet objections that have been made to that proposition.

This has been a topic of fierce debate in the law schools for the past thirty years. The controversy shows no sing of subsiding. To the contrary, the torrent of words is freshening.

It is odd that the one group whose members rarely discuss the intellectual framework within which they decide cases is the federal judiciary. Judges, by and large, are not much attracted to theory. That is unfortunate, and perhaps it is changing. There are several reasons why it should change.

Law is an intellectual system. It progresses, if at all, through continual intellectual exchanges. There is no reason why members of the judiciary should not engage in such discussion and, since theirs is the ultimate responsibility, every reason why they should.

Moreover, the only real control the American people have over their judges is that of criticism that ought to be informed and to focus not upon the congeniality of political results but upon the judges' faithfulness to their assigned role.

Finally, we appear to be at a tipping point in the relationship of judicial power to democracy. The opposing philosophies about the role of judges are being articulated more clearly. Those who argue that original intention is crucial do so in order to draw a sharp line between judicial power and democratic authority. Their philosophy is called intentionalism or interpretivism. Those who would assign an ever increasing role to judges are called non-intentionalist or non-interpretivist. The future role of the American judiciary will be decided by the victory of on set of ideas or the other.

I want to stress that I did not come here to enter into political controversy. This is a subject I have been teaching and writing about for twenty years, most of that time as a professor. I have been arguing with professors and that is what I will be doing tonight. In these remarks I am not concerned to prove that any particular decision or doctrine is wrong. I am concerned with the method of reasoning by which constitutional argument should proceed.

The problem for constitutional law always has been and always will be the resolution of what has been called the Madisonian dilemma. The United States was founded as what we now call a Madisonian system, one which allows majorities to rule in wide areas of life simply because they are majorities, but which also holds that individuals have some freedoms that must be exempt from majority control. The dilemma is that neither the majority nor the minority can be trusted to define the proper spheres of democratic authority and individual liberty. The first would court tyranny by the majority; the second tyranny by the minority.

Over time it came to be thought that the resolution of the Madisonian problem - the definition of majority power and minority freedom was primarily the function of the judiciary and, most especially, the function of the Supreme Court. That understanding which now seems a permanent feature of our political arrangements, creates the need for constitutional theory. The courts must be energetic to protect the rights of individuals but they must also be scrupulous not to deny the majority's legitimate right to govern. How can that be done?

Any intelligible view of constitutional adjudication starts from the proposition that the Constitution is law. That may sound obvious but in a moment you will see that it is not obvious to a great many law professors. What does it mean to say that the words in a document are law? One of the things it means is that the words constrain judgment. They control judges every bit as much as they control legislators, executives, and citizens.

The provisions of the bill of Rights and the Civil War Amendments not only have contents that protect individual liberties, they also have limits. They do not cover all possible or even all desirable liberties. Freedom of speech covers speech, not sexual conduct. Freedom from unreasonable searches and seizures does not protect the power of businesses, to set prices. The fact of limits means that the judge's authority has limits and outside the designated areas democratic institutions govern.

If this were not so, if judges could govern areas not committed to them by specific clauses of the Constitution, then there would be no law other than the will of the judge. It is common ground that such a situation is not legitimate in a democracy. Justice Brennan recently put the point well: "Justices are not platonic guardians appointed to wield authority according to their personal moral predilections." This means that any defensible theory of constitutional interpretation must demonstrate that it has the capacity to control judges. An observer must be able to say whether or not the judge's result follows fairly from the premises and is not merely a question of taste or opinion.

There are those in the academic world, professors at very prestigious institutions, who deny that the Constitution is law. I will not rehearse their arguments here or rebut them in detail. I note merely that that there is no question they do not address. If the Constitution is now law, law that, with the usual areas of ambiguity at the edges, nevertheless tolerable tell judges what to do and what not to do-if the Constitution is not law in that sense, what authorizes judges to set at naught the majority judgment of the representatives of the American people?

If the Constitution is not law, if, as yet another professor put it, it is of "questionable authority," why is the judge's authority superior to that of the President, the Congress, the armed forces, the departments and agencies, the governors and legislatures of the states, and that of everyone else in the nation? No answer exists.

The answer that is attempted is usually that the judge must e guided by some form of moral philosophy. Not only is moral philosophy wholly inadequate to the task but there is no reason for the rest of us, who have our own moral visions, to be governed by the judge's moral predilections.

Those academics who think the Constitution is not law ought to draw the only conclusion that intellectual honesty leaves to them: that judges must abandon the function of constitutional review. I have yet to hear that suggested. The only way in which the Constitution can constrain judges is if the judges interpret the document's words according to the intentions of those who drafted, proposed, and ratified its provisions and its various amendments.

It is important to be plain at the outset what intentionalism means. It is not the notion that judges may apply a constitutional provision only to circumstances specifically contemplated by the framers. In so narrow a form the philosophy is useless. Since we cannot know how the framers would vote on specific cases today, in a very different world from the one they knew, no intentionalist of any sophistication employs the narrow version just described.

There is a version that is adequate to the task. Dean John Hart Ely has described it:

What distinguishes interpretivism (or intentionalism) from its opposite is its insistence that the work of the political branches is to be invalidated only in accord with an inference whose starting point, whose underlying premise, is fairly discoverable in the Constitution. That the complete inference will not be found there-because the situation is not likely to have been foreseen-is generally common ground. 

In short, all an intentionalist requires is that the text, structure, and history of the Constitution provide him not with a conclusion but with a premise. That premise states a core value that the framers intended to protect. The intentionalist judge must then supply the minor premise in order to protect the constitutional freedom in circumstances the framers could not foresee. Courts perform this function all of the time. Indeed, it is the same function they perform when they apply a statute, a contract, a will, or, indeed a Supreme Court opinion to a situation the framers of those documents did not foresee.

Thus, we are usually able to understand the liberties that were intended to be protected. We are able to apply the first amendment's free press clause to the electronic media and to the changing impact of libel litigation upon all the media; we are able to apply the fourth amendment's prohibition on unreasonable searches and seizures to electronic surveillance; we apply the commerce clause to state regulations of interstate trucking.

Does this version of intentionalism mean that judges will invariable decide cases the way the framers would if they were here today? Of course not. But many cases will be decided that way and, at the very least, judges will confine themselves to the principles the framers put into the Constitution. Entire ranges of problems will be placed off-limits to judges, thus preserving democracy in those areas where the framers intended democratic government. That is better than any non-intentionalist theory can do. If it is not good enough, judicial review under the Constitution cannot be legitimate. I think it is good enough.

There is one objection to intentionalism that is particularly tiresome. Whenever I speak on the subject someone invariable asks, "But why should we be ruled by men long dead?" The question is never asked about the main body of the Constitution where we really are ruled by men long dead in such matters as the powers of Congress, the President, and the judiciary. It is asked about the amendments that guarantee individual freedoms. The answer as to those is that we are not governed by men long dead unless we wish to cut back those freedoms, which the questioner never does. We are entirely free to create all the additional freedoms we wish by legislation, and the nation has done that frequently. What the questioner is really driving at is why judges, not the public, but judges, should be bound to protect only those freedoms actually specified by the Constitution. The objection underlying the question is not to the rule of dead men but to the rule of living majorities.

Moreover, when we understand that the Bill of Rights gives us major premises and not specific conclusions, the document is not at all anachronistic. The major values specified in the Bill of Rights are timeless in the sense that they must be preserved by any government we would regard as free. For that reason, courts must not hesitate to apply old values to new circumstances. A judge who refuse to deal with unforeseen threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair, and reasonable meaning, fails in his judicial duty.

But there is the opposite danger. Obviously, values and principles can be stated at different levels of abstraction. In stating the value that is to be protected, the judge must not state it with so much generality that he transforms it. When that happens the judge improperly deprives the democratic majority of its freedom. The difficulty in choosing the proper level of generality has led some to claim that intentionalism is impossible.

Thus, in speaking about my view of the fourteenth amendment's equal protection clause as requiring black equality, Professor Paul Brest of Stanford said,

The very adoption of such a principle, however, demands an arbitrary choice among levels of abstraction. Just what is "the general principle of equality that applies to all cases?" Is it the "core idea of black equality" that Bork finds in the original understanding (in which case Alan Bakke did not state a constitutionally cognizable claim), or a broader principle of "racial equality" (so that, depending on the precise content of the principle, Bakke might have a case after all), or is it a still broader principle of equality that encompasses discrimination on the basis of gender (or sexual orientation) as well?...

The fact is that all adjudication requires making choices among levels of generality on which to articulate principles, and all such choices are inherently non-neutral. No form of constitutional decision making can be salvaged if its legitimacy depends on satisfying Bork's requirements that principles be "neutrally derived, defined and applied." 

I think that is wrong and that an intentionalist can do what Brest says he cannot. Let me use Brest's example as a hypothetical-I am making no statement about the truth of the matter. Assume for the sake of the argument that a judge's study of the evidence shows that both black and general racial equality were clearly intended, but that equality on matters such as sexual orientation was not under discussion.

The intentionalist may conclude that he can enforce black and racial equality but that he had no guidance at all about any higher level of generality. He has, therefore, no warrant to displace a legislative choice that prohibits certain forms of sexual behavior. That result follows form the principle of acceptance of democratic choice where the Constitution is silent. In short, the problem of levels of generality is solved by choosing no level of generality higher than that which interpretation of the words, structure, and history of the Constitution fairly support.

The power of extreme generalization was demonstrated by Justice William O. Douglas in Griswold v. Connecticut, [381 US 479(1965)]. In that case the Court struck down that state's anti-contraception statute. Justice Douglas created a constitutional right of privacy that invalidated the state's law against the use of contraceptives. He observed that many provisions of the Bill of Rights could be viewed as protections of aspects of personal privacy. He then generalized these particulars into an overall right of privacy that applies even where no provision of the Bill of Rights does. By choosing that level of abstraction, the Bill of Rights was expanded beyond the known intentions of the Framers. Since there is no constitutional text or history to define the right, privacy becomes an unstructured source of judicial power. I am not now arguing that any of the privacy cases were wrongly decided. My point is simply that the level of abstraction chosen makes a generalized right of privacy unpredictable in its application.

A concept of original intent, one that focuses on each specific provision of the Constitution rather than upon generalized values, is essential to prevent courts from invading the proper domain of democratic government.

That proposition is directly relevant to the subject of economic rights and the Constitution. Article I, Section 10, provides that no state shall pass any law impairing the obligations of contracts. The fifth and fourteenth amendments between them prevent either the federal or any state government from taking private property for public use without paying just compensation.

The intention underlying these clauses has been a matter of dispute and perhaps they have not been given their proper force. But hat is not my concern here because few deny that original intention should govern the application of these particular clauses.

My concern is with the contention that a more general spirit of libertarianism pervades the original intention underlying the fourteenth amendment so that courts may review virtually all regulations of human behavior under the due process clause of that amendment. This would include judicial review of economic regulations. The burden of justification would be placed on the government so that all such regulations would start with a presumption of unconstitutionality. Viewed from the standpoint of economic philosophy and of individual freedom the idea has many attractions. But viewed from the standpoint of constitutional structures the idea works a massive shift away from democracy and toward judicial role.

Professor Siegan has explained what is involved.

In suits challenging the validity of restraints, the government could have the burden of persuading a court…, first, that the legislation serves important government objectives; second, the restraint imposed by government is substantially related to the achievement of these objectives, that is, … the fit between means and ends must be close; and third, that a similar result cannot be achieved by a less drastic means. 

This method of review is familiar to us from case law. It has merit where the court is examining legislation that appears to threaten a right or a value specified by a provision of the Constitution. But when employed as a formula for the general review of all restrictions on human freedom without guidance from the interpreted Constitution, the court is cut loose from any external moorings and required to perform tasks that are not only beyond its competence but beyond any function that can conceivably be called judicial. That assertion is true, I submit, with respect to each of the three steps of the process described.

The first task assigned the government's lawyers is that of carrying the burden of persuading a court that the "legislation serves important governmental objectives." That means, of course, objectives the court regards as important, and importance also connotes legitimacy. It is well to be clear about the stupendous nature of the function that is thus assigned the judiciary. That function is nothing less than working out a complete and coherent philosophy of the proper and improper ends of government with respect to all human activities and relationships. This philosophy must cover all questions social, economic, sexual, familial, political, etc.

It must be so detailed and well-articulated, all the major and minor premises in place, that it allows judges to decide infinite numbers of concrete disputes. IT must also rest upon more than individual preferences of judges in order not only that internal inconsistency be avoided but also that the legitimacy of forcing the chosen ends of government upon elected representatives, who have other ends in mind, can be justified. No theory of the proper ends of government that possesses all of these characteristics is even conceivable. Yet, to satisfy the requirements of adjudication and the premise that a judge may not override democratic choice without an authority other than his own will, each of those qualities is essential.

Suppose that in meeting a challenge to a federal minimum wage law the government's counsel stated that the statute was the outcome of interest group politics, or that it was thought best to moderate the speed of the migration of industry form the north to the south, or that it was part of a policy to aid unions in collective bargaining. How is a court to demonstrate that none of those objectives is important and legitimate? Or, suppose that the lawyer for Connecticut in Griswold v. Connecticut, the decision striking down the state's law against the use of contraceptives, stated threat a majority, or even a politically influential minority, regarded it as morally abhorrent that couples capable of procreation should copulate without the intention, or at least the possibility, of conception. Can the court demonstrate that moral abhorrence is not an important and legitimate ground for legislation? I think the answer is that the court can make no such demonstration in either of the supposed cases. And, though it may be only a confession of my own limitations, I have not the remotest idea of how one would go about constructing the philosophy that would give the necessary answers-for judges. I am quite clear how I would vote as a citizen or a legislator on each of these statutes.

This brings me to the second stage of review, in which the government bears the burden of persuading the court that the challenged law is "substantially related to the achievement of [its] objectives." In the case of most laws about which there is likely to be controversy, the social sciences are simply not up to the task assigned. Should the government insist upon arguing that a minimum wage law is designed to improve the lot of workers generally, microeconomic theory and empirical investigation may be adequate to shows that the means do not produce the ends. The requisite demonstration will become more complex and eventually impossible as the economic analyses grow more involved. It is well to remember, too, that judge-made economics has not been universally admirable. Much that has been laid down under the antitrust laws testifies to that.

Moreover, microeconomics is the best, the most powerful, and the most precise of the social sciences. What is the court to do when told that ban on the use of contraceptives in fact reduces the amount of adultery in the population? Or if it is told that slowing the migration of industry to the Sun Belt is good because it is more painful to lose jobs than not to get new jobs? (The substantive due process formulation does not directly address cost-benefit analysis, but one might suppose a court employing this kind of review would also ask whether the benefits achieved were worth the costs incurred. Perhaps that is included in the concept of a substantial relationship between ends and means. If so, that introduces into the calculus yet another judgment that can only be legislative and impressionistic.)

The third step-that the government must show that a "similar result cannot be achieved by a less drastic means'-is loaded with ambiguities and disguised tradeoff decisions. A "similar" result may be one along the same lines but not the full result desired by the government. Usually, a lesser, though "similar," result can be achieved by a lesser amount of coercion. A court undertaking to judge such matters will have no guidance other than its own sense of legislative prudence about whether the greater result is or is not worth the greater degree of restriction.

There are some general statements by some framers of the fourteenth amendment that seem to support a conception of the judicial function like this one. But it does not appear that the idea was widely shared or that it was understood by the states that ratified the amendment. Such a revolutionary alteration in our constitutional arrangements ought to be more clearly shown to have been intended before it is accepted. This version of judicial review would make judges platonic guardians subject to nothing that can properly be called law.

The conclusion, I think, must be that only by limiting themselves to the historic intentions underlying each clause of the Constitution can judges avoid becoming legislators, avoid enforcing their own moral predilections, and ensure the Constitution is law.