[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning," to work at "finding the law" instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court. Robert Bork, Fortune December 1968 p.140-1.

Introduction:

As you might guess from the title, Mr. Bork's latest work, The Tempting of America⁽²⁾ , is a book about the Fall -- both America's and Mr. Bork's own. It will not surprise many readers to find that the two are linked, or that the "temptation" to which Mr. Bork refers is that of politics. In particular, he warns us of an increasing politicisation of the American legal system. This politicisation is caused primarily by judges who desert the original understanding of the constitution and, under the guise of "interpretation," attempt instead to impose their own individual notions of justice on the cases before them. Mr. Bork conveys these messages in a book which is part autobiography, part legal theory and which was inspired by the ordeal which brought him to fame: the Senate's judicial confirmation process. In his case, of course, it was actually a process of denial. Unfortunately, so is the book.

Although this article was prompted by the publication of The Tempting of America, its subject is wider than that book alone. As I went further back into Mr. Bork's intellectual history, I discovered that the arguments in his most recent book followed a formula developed in his earlier writings. Like The Tempting of America, Mr. Bork's other work follows a lapsarian pattern -- a tale of a fall from grace, coupled with a strategy for redemption. A state of corruption and decay is identified in some institution or area of law. The rot is traced to a particular departure from the proper state of affairs, a wilful violation of an authoritatively decreed scheme of things. A method is prescribed by Mr. Bork which will allow us to escape our current fallen state and return to a condition of righteousness. Mr. Bork speaks strongly in favour of his method, pronouncing it "inescapable" or "unavoidable." Yet it is obvious that Mr. Bork's panacea has all the same features as the disease it is supposed to cure. At first, Mr. Bork offers a lengthy and thunderous denial that the cure is indistinguishable from the disease. Eventually, he falls silent for a while, only to emerge in two or three years with some new, and newly ineluctable, redemptive method. The process then repeats itself. Readers familiar only with Mr. Bork's most recent writings will be surprised to find that in the past he has been, successively, a libertarian, a process theorist, a devotee of judicial restraint, a believer in neutral principles, a "law and economist" and an advocate of two distinct forms of originalism. At the time, each of these theories was offered as being the only possible remedy to the subjectivity and arbitrariness of value judgements in a constitutional democracy and the other theories he had held, or was about to hold, were rejected out of hand.

The Tempting of America is, in one sense, the weakest and most obviously flawed of Mr. Bork's panaceas. He criticises contemporary liberal constitutional jurisprudence for being arbitrary, politically biased, indeterminate, and a-historical. Yet his prescription for cure -- the philosophy of original understanding -- is even more obviously possessed of these flaws. Indeed, as the quotation at the head of this page demonstrates, in an earlier incarnation he himself had dismissed it as "naive." Mr. Bork's rhetoric of denial must thus be correspondingly stronger and more thunderous. Yet in another sense, The Tempting of America may mark a departure -- albeit a fragmentary and contradictory one -- from the endless process of denial. Instead, it marks a shift to a different form of conservative thought, one that could be called either pre- or even post-modern. For these reasons, among others, it behooves us to pay more attention to Mr. Bork's most recent argument than its surface confusion and dogma might first appear to deserve. It is to that argument I now turn.

Every Eden has its own forbidden fruit, its own great serpents. Mr. Bork's forbidden fruit is politics, his serpents are a liberal elite in legal academia. More broadly, the villains of the piece are the "intellectual or knowledge class", those "who work, however adroitly or maladroitly, with words and ideas." (p. 8) This class "tend[s] to have values antagonistic to a traditional, bourgeois society. It is not too much to say that these people see the Constitution as a weapon in a class struggle about social and political values." (p.8) Despite the fact that he appears to work (however adroitly or maladroitly) with words and ideas, Mr. Bork is not a card-carrying member of this knowledge class. Like Karl Marx, he has managed to escape from the class-determined attitudes he, himself, describes. For this, we can only be thankful.

Mr. Bork's plot is a relatively simple one. The knowledge class comes to realise that the values of the real Constitution (as interpreted by the Framers, their contemporary audience and Mr. Bork) are hostile to their predilection for sexual freedom and egalitarian social reform. Unwilling to accept this limitation on their desires, they decide⁽³⁾ to subvert the true meaning of the document. They have a number of strategies to achieve this goal, including political opposition to judges who do not share their ideas of the constitution. Understandably, Mr. Bork thinks this a particularly pernicious thing to do. But the liberal elite is not content merely to block those with whom they disagree (p. 10). They wish to transform constitutional debate, to marginalise originalism by treating it as just one method of interpretation among many, perhaps to root it out altogether. The knowledge class is helped in their "heresy" (p. 7) by a number of well-meaning, but unsophisticated judges who yearn to do justice, a public unwilling to listen to discussions of constitutional theory and a perverse judicial tendency, stretching all the way back to Marbury vs. Madison, occasionally to ignore the manifest good sense of the philosophy of original understanding.

The knowledge class's success has cost the law dearly in terms of legitimacy. "Since the politicization of law has, for half a century, moved results steadily to the left, a very large number of Americans do not like those outcomes." (p. 2) The Tempting of America is, in effect, a clarion call which warns the general public of the dangers if we continue down this road and seeks to rally them around the flag of originalism. It should be noted that originalism does not mean original intent. Mr. Bork used to think that it was blindingly obvious that the true meaning of the constitution was determined by original intent of the Framers. Now he finds it equally obvious that the Framers' intentions are irrelevant and that the true meaning of the Constitution is determined by the way it would have been understood by an audience at the time it was written. This new position is so obvious to Mr. Bork that he doesn't mind imposing it on candidates for the judiciary. Indeed, "[o]ne purpose of this book is to persuade Americans that no person should be nominated or confirmed who does not display both a grasp of and devotion to the philosophy of original understanding" (p. 9). At this point, one might legitimately ask, although Mr. Bork does not, "isn't this the very thing for which you so castigate the liberals? Isn't this the imposition of a politically based loyalty oath for judicial method?" Mr. Bork's response seems to boil down to an assertion that his method is right.

I suspect that many reviewers will end their reviews here, satisfied with a job well done, another dogmatist exposed. This, I think, would be a mistake. It is true that the arguments advanced here are shallow, dogmatic, a-historical and logically flawed. They also contradict Mr. Bork's own past writings. But this is only part of the story. There are two sides to Mr. Bork's argument. The first and most obvious is an unsuccessful but relatively conventional attempt to satisfy the requirements of liberal rationalist social thought. In other words, an attempt to prove that the theory of original understanding is neutral, objective, free from prejudice and, in general, a rational analysis of the social world. The second and less obvious side of the book is the more interesting. Scattered throughout this work are fragmentary arguments and statements which, if pieced together, could represent a fundamental conservative challenge to the framework of liberal rationalism, the very framework into which Mr. Bork has been trying to shoehorn his ideas. This challenge could be described as Burkean conservatism, after its great 18th century progenitor, but that name should not be taken to imply that it is of only historical interest. Given its low opinion of the value of rationality, its critique of liberal epistemology and its cut and paste approach to historical tradition, it could, with equal justice, be called "post-modern conservatism." Because it does not fit within the ruling epistemology, most readers will not even recognise this second argument as an argument. It is for exactly that reason that it deserves our attention.

Thus, rather than rejecting this book out of hand as a poorly argued apologia for an unconvincing constitutional philosophy, I think we should see it as an important and frequently touching work which reveals much about two fascinating subjects.

First, it tells us a great deal about the relationship between conservative ideology and the law, an issue which, given the current composition of the Federal Bench, is likely to be of considerable interest for the rest of our natural lives. The Tempting of America will take its place as the leading exposition of the philosophy of original understanding. For reasons I will give later, originalism is likely to be the only conservative legal theory with significant appeal to a mass audience. Thus, Mr. Bork's book has considerable political and iconographic significance.

Second, and perhaps more interestingly, it presents us -- albeit in confused and contradictory form -- with a strand of conservatism long neglected in the United States, a strand known by the name of its most famous propagandist, Edmund Burke. Thus, it gives us the opportunity to examine a striking historical parallel. Writing against the French Revolution, at the beginning of "the age of reason," Burke spoke out in favour of established hierarchies, a-rational tradition and against the "delusive plausibilities of moral politicians," or the hubris involved in trying to understand the social world with aid only of the "frail and feeble" instrumentalities of reason. Mr. Bork, writing in a post-modern era which has been hailed by some as the twilight of reason, strikes exactly the same chords, though with less style and assurance. Is this a return to a pre-modern, or even the rise of a post-modern conservatism⁽⁴⁾?

The structure of this article roughly follows that of this section. I will begin by discussing Mr. Bork's importance to current conservative legal theory.⁽⁵⁾ After concluding that the theory of original intent (and to a lesser degree, of original understanding) is one of the most popularly acceptable of the available conservative legal theories, I will devote the middle portion of the article to an examination of the intellectual odyssey which led Mr. Bork to make his way through each of those theories before holding the ideas he does now. Having shown how Mr. Bork developed his ideas about original understanding, I will examine their correctness on interpretive, historical and logical grounds. After demonstrating that Mr. Bork's most recent theory fails each of the tests set it, I will discuss the structure that it has in common with his earlier work. Finally, using that structure as a tool, I will develop the part of his current ideas which challenges the epistemology of liberal rationalism and discuss its possible significance for conservative thought in general.

Bork and Conservative Legal Theory

There have been enormous strides in conservative legal theory in recent years. They were sorely needed. With some notable exceptions⁽⁶⁾, conservative legal thought once consisted largely of bombast, red-baiting and formalism. In the last fifteen years, that situation has changed dramatically. A number of distinct schools of conservative legal thought have appeared, providing conservative judges, administrators and policy makers with a wealth of contradictory but persuasive advice on how best to use their newly acquired power. Mr. Bork's book is best read as the leading statement of one of these schools. To understand its importance we must look first to the competition.

One of the most obvious contributions to conservative legal theory comes from the economic analysis of law. The Chicago school of law and economics has reconceptualised the legal system as a "rights market," where decision makers are asked to allocate rights to the person who would pay the most for them under conditions of perfect competition.⁽⁷⁾ This has the happy effect of favouring the rich over the poor, and all in the name of science. It also means that we can extend the ideology of the market to the last few areas, such as adoption, civil rights and the criminal law, which still have the temerity to resist it. In case anyone should imagine that this is a merely academic movement, it should be remembered that its chief proponent is now a federal judge. It is also instructive, if not actually frightening, to find that half of all federal judges have already attended corporate funded courses in law and economics, arousing in the process considerable concern over the ethical propriety of their actions.

Alternatively, for those less enamoured of the dismal science, there are libertarian legal theories which demonstrate that the New Deal is unconstitutional. So too are the minimum wage, worker's compensation, rent control, Social Security and progressive taxation. In the brilliantly evoked world of libertarian legal theory, the takings clause is the centre of the constitution and the judiciary has an obligation to move towards a minimalist state by striking down everything within the reach of that clause. Happily for the libertarians, it turns out that almost everything is a taking. "All regulations, all taxes, and all modifications of liability rules are takings of private property prima facie compensable by the state."⁽⁸⁾ Sadly, the libertarian concern for takings of private property does not extend to those who have suffered the greatest past losses -- Native Americans and Afro-Americans, in particular.

Both law and economics and libertarianism require a degree of "judicial activism" which tends to undermine the notion that conservatives are automatically proponents of "judicial restraint." Perhaps this has something to do with the knowledge that, by now, the overwhelming majority of current federal judges have been appointed by conservative presidents. Nevertheless, there are still those who believe that the first job of a conservative legal theory is to limit the power of the judiciary. To this end it has been suggested that Congress should be capable of overruling Federal or Supreme Court decisions, or that a seven member majority on the Court be necessary to strike down Federal or State law.⁽⁹⁾ There have also been unsuccessful attempts in Congress to make it an impeachable offense for federal judges to order governmental expenditures for a specific purpose, when a legislature has not authorised and appropriated funds for that purpose.⁽¹⁰⁾ Those who prefer brief solutions will like the suggestion that Congress should simply remove "controversial political and social questions from the appellate jurisdiction of the Supreme Court."⁽¹¹⁾ The author who brought the whole list of suggestions to my attention commented sagely that this last one was a "good, but partial, answer to the problem."⁽¹²⁾ Since every issue which comes to the Supreme Court seems like a controversial social issue to someone, such a solution would also have the indirect benefit of making a valuable plot of prime Washington real estate on First Street N.E. available for development.

There are other conservative groups, of course. Social conservatives have been less prominently represented in the academy, but no less influential in decision-making. They have led the attack on Roe vs. Wade, convinced the Supreme Court that there is no constitutional bar to criminalising all sexual acts beyond the (heterosexual) missionary position, persuaded the Justice Department to argue against affirmative action, and held out the possibility that divorce should be restricted and perhaps abolished. "In a case of a traditional church marriage, where the couple has exchanged the usual vows `for richer for poorer, in sickness and in health, till death us do part,' there is no reason why they should not be held to their contract."⁽¹³⁾ A passage from the same work gives some notion of the social conservative attitude towards equal opportunity law and women's rights.

The strains imposed on the family by equal opportunity are enormous -- husbands competing with their own wives, men and women entering into marriage "so long as love shall last," mothers feeling compelled to abandon their families for a career or to satisfy their sexual appetites. The real effect of this collective delusion of women's rights is only to reduce the once sovereign family to a support system for various governmental agencies.⁽¹⁴⁾

On the strategic level of national politics, Bork's book is important precisely because so many people would find these other conservative legal movements to be either too complicated or too wacky. Perhaps both. I hasten to say that this is not a judgement about the actual merits of conservative ideas. Judge Posner gets justifiably upset when people ignore the rest of his brilliant and prodigious opus and focus only his baby-selling article, even comparing his suggestions to Swift's A Modest Proposal. There is certainly intellectual substance to the idea that markets ration scarce resources -- in this case, babies -- better than do bureaucracies. Nevertheless, there is an undeniable reaction of moral and emotional outrage at economic discussions of the efficient level of crime or the economics of the baby shortage. The depth of outrage at suggestions like this makes it likely that, as a popular national platform for conservative legal reform, law and economics has even less chance than bimetallism. Behind the scenes, of course, it is likely to be more and more important.

As for the libertarian ideal most brilliantly stated by Professor Epstein, it is certainly true that property exercises a peculiar fascination over the affections of mankind. Nevertheless, it is hard to imagine a political or legal movement built around the idea that the New Deal is unconstitutional, or that the Takings clause is the center of the constitution. An unalloyed philosophy of judicial restraint is likely to have the same fate -- particularly when it is preached to conservative judges revelling in their new found powers. When it comes to social conservatism, this may be a reflection of my own biases, but I have found that a lot of Americans and not merely the members of Mr. Bork's knowledge class, have a yen for sexual freedom and "the delusion of women's rights." The author who used that phrase and then suggested abolishing divorce, described his creed in the following way; "when a Southerner calls himself a conservative, he is usually thinking of a way of life, of a social and moral order for which the people of the 1860's went to war."⁽¹⁵⁾ Correct me if I am wrong, but wasn't the name of that social and moral order, "Slavery"? While I can believe much of American politics, I cannot believe that slavery, or baby-selling, or even the abolition of the New Deal (shortly followed by the Supreme Court) would form the basis of an extraordinarily popular conservative legal movement. And that is where Mr. Bork comes in.

Mr. Bork's book is tailor-made for popular appeal. It is weighty enough to convince those who are not familiar with the material he discusses and shallow enough to be capable of quick summary in a talk show or newspaper article. As I will show in the next section, the arguments against his ideas are overwhelming, but they are sometimes complicated or require actual historical knowledge to substantiate them. For these reasons they are unlikely to prosper in the orgy of narcissism, cliche and half-truth which masquerades as public debate on the nation's airwaves. But any detailed, scholarly or merely honest analysis of Mr. Bork's ideas reveals a jurisprudence of dogma and sound-bites and a version of history which bears the same relationship to the Framer's ideas that Busch Gardens bears to Europe.

In one view, perhaps the dominant view, Mr. Bork's most recent book is an alternately defensive and opportunistic response to the confirmation hearings. The story goes something like this. "Mr. Bork is a thoughtful legal scholar and must surely recognise the problems in his ideas. He himself used to criticise originalism, before it became flavour of the month at the Justice Department. Yet consider the alternatives open to him. He can acknowledge that his theory of constitutional interpretation is both incoherent and unworkable and thus retrospectively legitimate the painful criticism to which he was subject during the hearings. Alternatively, he can turn his back on scholarship and real history, becoming instead a revered video pundit of the right, complete with scars got in honourable battle and a theory that can be explained between commercial breaks. Who can be surprised when he chooses the latter course? Who can be surprised to find that his theory fails to confront the objections raised to it? Who can be surprised that his book consists instead of a process of denial -- denial of philosophical problems, historical problems, logical problems, and finally, denial of personal inconsistency?"

Yet there is another way of viewing this book. Perhaps The Tempting of America should not be seen as merely a defensive and disingenuous product of the confirmation hearings. Instead, it is the culmination of a prominent conservative's intellectual odyssey, the end of a trek through each of the prevalent schools of conservative legal thought. In the next section I will suggest that Mr. Bork has measured each of the ideas he has held by its ability to offer a coherent conservative vision of how a society is to be run if values are not subject to rational discussion. If this is true, then the fact that he ends up with the theory of original understanding is particularly fascinating. Surely this theory is the weakest of them all? Let us turn to Mr. Bork's odyssey and then ask the question, what does originalism offer that these ideas do not?

Is Bork a Borkean?

Mr. Bork has had a colourful career. Before becoming a judge, he was a practicing lawyer, a law professor at Yale and then a Solicitor General of the United States. His term in the latter office "included some duties not listed in [the] job description, among them writing briefs against Vice President Spiro Agnew... and the firing of Special Prosecutor Archibald Cox in what was known as the Saturday night massacre." (p. 272) Certain members of the knowledge class suggested during Mr. Bork's confirmation hearings that the latter act did not reflect well upon him. He feels, however, that "[t]hese are stories that may be left for another time" (Id.). I will bow to his wishes, turning instead to the changes in his intellectual position over the last twenty five years.

Mr. Bork's intellectual history is a fascinating odyssey, an odyssey in which one can see all of the major theories of twentieth century conservative legal thought. One can see them, because at one time or another, Mr. Bork has held them all -- and always passionately. In this sense, he is a conservative Everyman, holding each of the conservative ideologies in succession. My aim is not to criticise Mr. Bork for changing his position. Consistency is the hobgoblin of small minds, after all. Nor is the point simply that Mr. Bork's tendency to describe each of his views as inevitable tends to deflate the credibility of his most recent such declarations. Instead, I think that Mr. Bork personal odyssey presents the development of conservative legal thought in microcosm. As we will see, this makes his current position all the more interesting.

In 1963, when conservatives were worried that Congress might force white folks to open their hotels and restaurants to black folks, Mr. Bork was a libertarian with a high regard for individual freedom of association. He had this to say about the Interstate Accommodations Act:

The legislature would inform a substantial body of the citizenry that in order to carry on the trades in which they are established they must deal with and serve persons with whom they do not wish to associate.... The fact that the coerced scale of preferences is said to be rooted in a moral order does not alter the impact upon freedom. In a society that purports to value freedom as an end in itself, the simple argument from morality to law can be a dangerous non sequitur.... The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.⁽¹⁶⁾

Five years later, when he wrote "Why I am For Nixon," and "The Supreme Court Needs A New Philosophy,"⁽¹⁷⁾ Mr. Bork's judicial philosophy was largely cast in the form of a critique of the Warren Court, whose result-oriented jurisprudence had tempted judges with a knowledge they were forbidden to possess. The latter article is particularly interesting. In it, Mr. Bork argued that "[t]he Warren Court... challenges us to think again whether there is or can be any substance to the distinction between law and politics."⁽¹⁸⁾ The article goes in search of some theoretical basis for that distinction. He concluded that it is "naive" to take the position which he now espouses and insist simply that the Court "give the Constitution its `true meaning.' The possibility implied by those comforting phrases does not exist."⁽¹⁹⁾ In a passage which will surely surprise some of his more recent readers, he even quoted Robert Penn Warren for the truth of the legal realist view of law.

Every thoughtful working lawyer has shared the insight expressed by Willy Stark, the Huey Long-like politician in All the King's Men and a legal realist if ever there was one. "The law, he said `is like a single-bed blanket on a double bed and three folks in the bed and a cold night. There ain't ever enough blanket to cover the case, no matter how much pulling and hauling..' The question, then, is not whether courts should make law, but how and from what materials.⁽²⁰⁾

Answering his own question Mr. Bork tried, and rejected a number of alternative "materials." Relying on the traditional materials, "the text of the Constitution, history and precedent[,]" will not solve the realist dilemma. "[S]ometimes they dictate results. But more often these sources suggest that the Court must enter a field and yet do not answer the important questions found there." Probably the most striking passage is the one quoted at the beginning of this article, in which he specifically rejects the originalist position. "History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court."⁽²¹⁾ He concluded that Willy Stark and the Yale legal realists were "dead right about the inadequacy of the traditional sources of law."⁽²²⁾

The new philosophy Mr. Bork offered was an interesting hybrid. It can best be described as a kind of process theory which combined a Bickel-like argument for judicial restraint with a Wechslerian argument for judicial activism when necessary to safeguard deductively generated "natural rights". Mr. Bork stitched these disparate elements together with his normal conviction and self-assurance.

Where the Constitution does not thrust it into a field, a restrained Supreme Court would deal with the processes by which the policies of representative institutions are made and applied, rather than with the substance of the policies. Intervention coupled with refusal to pass on substance does not entail a contradiction.... In his book The Least Dangerous Branch, Professor Alexander Bickel of Yale has analyzed the rich and subtle repertory of judicial techniques available to educate, to frame, and expose issues for other branches of government, to require them to face up to hard choices and their consequences. Restraint entails not so much a reduced as a different role for the Court, one better suited to democratic society than the role now played by the Warren Court.⁽²³⁾

The traditional conservative's preference for judicial restraint is subject to the Madisonian imperative that the court intervene in order to protect minorities from majorities.

A desire for some legitimate form of judicial activism is inherent in a tradition that runs strong in our culture, a tradition that can be called "Madisonian." We continue to believe that there are some things no majority should be allowed to do to us, no matter how democratically it may decide to do them... [T]here are some aspects of life a majority should not control... coercion in such matters is tyranny, a violation of the individual's natural rights.... Clearly, the definition of natural rights cannot be left to either the majority or the minority.... This requires the Court to have, and demonstrate the validity of, a theory of natural rights.⁽²⁴⁾

The theory of natural rights turns out to be more "conventional" than "natural." "Working in the method familiar to lawyers trained in the common law, the judge can construct principles that explain existing constitutional rights and extrapolate from them to define new natural rights."⁽²⁵⁾ Having rejected as "naive" a search for the historically defined lines the elder Mr. Bork will find so easily, the younger Mr. Bork offers more intangible, `intersubjective' constraints on this process. "In proceeding to derive new rights, the courts must be controlled by the methods and disciplines that lawyers call craftsmanship.... Only in this way, so far as I can see, can we begin to meet the plea made by Professor Herbert Wechsler of Columbia for `neutral principles' of constitutional law."⁽²⁶⁾

If readers are a little surprised by this realist, activist Bork, who begins his analysis from the necessity of courts making law, they will also be surprised by the "neutral" set of natural rights he managed to "derive." In 1968, it was obvious to Mr. Bork that the First Amendment, correctly interpreted, protected not only political but non-political speech.⁽²⁷⁾ The implications went much further, however.

[N]on-political speech too, of course, is entitled to some degree of constitutional protection. Brandeis cited other values of speech that are not unique to the political variety. For both speaker and hearer, speech may be a source of enjoyment, of self-fulfillment, of personal development. It is often mundane or vulgar or self-serving, but it may be exalted, inspired by the highest motives. It may affect attitudes that ultimately impinge on the political process. All this has implications that, though generally overlooked, seem inescapable. For in these respects nonpolitical speech does not differ from nonverbal behavior, whether it customarily bears the label "sexual," "economic," "artistic," or some other. One could argue, then, that all human behavior should be entitled to the same level of constitutional consideration, the same judicial scrutiny of governmental regulation, that is currently afforded to nonpolitical speech.⁽²⁸⁾

After generalising First Amendment protection to all human behavior, Mr. Bork modestly offered a way to draw a line between the wishes of the majority and the rights of the minority.

[M]oral disapproval alone cannot be accepted as a sufficient rationale for any coercion... The Court can draw a line, applicable to many more situations that the "right of privacy" enunciated in Griswold, by ruling that the majority may prohibit morally or aesthetically offensive nonpolitical behavior where the public must observe it, but cannot reach conduct out of sight on such a rationale. Both majority and minority may feel some pain at their respective limitations, but the line does preserve an enclave of freedom while minimizing the pain felt by the majority.⁽²⁹⁾

There is a certain poignancy in this confident display of Mr. Bork's libertarian persona, akin to the emotions produced when one sees photographs of some doomed individual, still full of vigour, unaware of the fate that awaits him. By 1990, Mr. Bork will believe that a majority must legislate morality if it is not to "dissolve social bonds." In 1968, however, the doomed libertarianism could hardly have been more vigorously championed. At that moment, a constitutional order created by Mr. Bork would probably most closely have resembled Professor Epstein's world, where "all regulations, all taxes, and all modifications of liability rules are takings of private property prima facie compensable by the state"⁽³⁰⁾ and where the acceptable reasons for state intervention in individual behaviour are few indeed. This position is merely the logical conclusion of the ideas he had held in 1963 when he called the prohibition of racial exclusion in public lodging an idea which embodied a "principle of unsurpassed ugliness"⁽³¹⁾ because of it interfered with individual liberty. It is hardly surprising, then that five years later, he thought it "inescapable" that all human behavior should be granted constitutional protection of the same kind as non-political speech. The quotation above is perhaps the clearest example of the direction of his thought. Notice how he is careful to carve out a sphere of private action free from public moral regulation. The majority can interfere on moral grounds only in what it can see, and even there, we have lower level First Amendment protection. It is interesting to ponder the implications. Bowers v. Hardwick would certainly be overruled under this philosophy, and there would be an overwhelmingly strong argument in support of Roe v. Wade.⁽³²⁾

But after this five year period of holding to the same line, Mr. Bork's peripatetic intellectual convictions were straining at the leash. By 1971, the libertarian side of Mr. Bork's ideas had gone into decline and reliance on Wechsler's theory of "neutral principles" had correspondingly increased. The change was anything but subtle, although each position he held he described as unavoidable. Three years earlier he had believed it inescapable that the First Amendment covered all human behaviour -- whether sexual, economic or artistic. Yet in his 1971 Indiana Law Journal article, he could not see how to avoid the conclusion that the First Amendment only covered political speech, narrowly defined.⁽³³⁾ The libertarian side appeared to have disappeared altogether. Mr. Bork confessed nobly to his change of heart, at least insofar as it implied a reversal of his position over Griswold v. Connecticut. In 1968, together with other commentators, he had thought that case "a salutary demonstration of the Court's ability to protect fundamental human values." In fact, he offered a principle that went even further. By 1971 he felt it was an "unprincipled decision," both its derivation and its definition being "utterly specious."⁽³⁴⁾ The only "extenuation" he could offer for his change of heart was that "at the time I thought, quite erroneously, that new basic rights could be derived logically by finding and extrapolating a more general principle of individual autonomy underlying the particular guarantees of the Bill of Rights."⁽³⁵⁾

As Mr. Bork's libertarian sentiments were gradually disposed of in the name of "neutral principles," his ideas about interpretation were undergoing a similar metamorphosis. In 1968 Mr. Bork had thought it "naive" to imagine we could solve our problems merely by appointing judges determined to give the constitution its "true meaning." "The possibility implied by these comforting phrases does not exist..."⁽³⁶⁾ In fact he had specifically pointed out that an originalist historical search told us "too little about the specifics." At that time, he gave as an example the difficulty of determining the level of generality of the Fourteenth Amendment. "History shows us that the equal-protection clause (ratified a few years after the Civil War) grew out of a concern about racial equality, but in crucial respects the record leaves us unsure what was meant by equality and how far beyond race the guarantee was intended to reach."⁽³⁷⁾ Does it mandate "black equality," "racial equality" or some wider vision? In 1971, history had become considerably clearer. Mr. Bork could say "[O]ne thing the Court does know: [the fourteenth amendment] was intended to enforce a core ideal of black equality against governmental discrimination."⁽³⁸⁾ As the years passed the record was to become clearer still.

In 1980 Paul Brest made the same criticism Bork himself had made against original understanding in his 1968 article; it leaves open the level of generality of the constitutional provision, and therefore the judge must choose a level of abstraction. When Mr. Bork responds to this article in 1990, the minor methodological problems which had caused him to see indeterminacy in texts, precedents and historical records are obviously a thing of the past. "The role of a judge committed to the philosophy of original understanding is not to `choose a level of abstraction.' Rather it is to find the meaning of a text -- a process which includes finding its degree of generality, which is part of its meaning." (p.149) The methodological confidence is accompanied by some interesting substantive convictions. Women and gays will have to make do with a lower level scrutiny as to whether any discrimination is "reasonable." In the latter case, at least, it almost always will be. "Social treatment of homosexuals is based upon moral concerns and it would be difficult to say that the various moral balances struck are unreasonable."(p. 150) I fear I am stressing the obvious, but this is a far cry from the libertarian who wanted to broaden the protection offered by Griswold to all human behaviour.

As Mr. Bork's libertarianism waned and his theory of interpretation changed, an associated shift in his moral epistemology was taking place. Two sentences from his famous Indiana Law Journal article manage to sum it up. "Unless we can distinguish forms of gratification, the only course for a principled court is to let the majority have its way in both cases... There is no principled way to decide that one man's gratifications are more deserving of respect than another's or that one form of gratification is more worthy than another."⁽³⁹⁾ In a footnote he elaborates. "The impossibility is related to that of making interpersonal comparisons of utilities[,]"⁽⁴⁰⁾ and quotes two economics textbooks to prove the point. The conclusion that economists draw from this premise is that matters of value must be left to the market. Mr. Bork draws the conclusion that they must be left to the majority. In the Indiana article, they must be left to the majority unless trumped by an overriding neutral principle can be derived from the Constitution using the Wechslerian tools of generalisation and abstraction.⁽⁴¹⁾ In The Tempting of America the formulation is the same, but the content has changed; questions of value must be left to the majority unless the original understanding produces a principle which trumps them. Mr. Bork now has the form of his basic argument, a form that can be filled with his method of the moment.

So far, Mr. Bork has held most of the available conservative legal theories I discussed at the beginning of this essay. He has been a libertarian, a proponent of traditional judicial restraint, a believer in judicial activism to enforce natural rights, and a subscriber to Wechsler's theory of neutral principles. The only schools of thought missing from the list are the economic analysis of law, social conservatism, and the philosophy of original intent. With Mr. Bork one never has to wait long. In fact, the changes were already in the works.

During this entire period, Mr. Bork had been hard at work at on the articles later published as The Antitrust Paradox, which was finally finished in 1978. The shibboleths of his argument looked reasonably familiar.

Within the limited frame for observation provided by antitrust, therefore, it is worth noting that the general movement has been away from legislative decision by Congress and toward political choice by courts, away from the idea of competition and toward the older idea of protected status for each producer, away from concern with general welfare and toward concern for interest groups, and away from the ideal of liberty toward the idea of enforced equality.⁽⁴²⁾

Mr. Bork believed these trends to be "ultimately incompatible with the preservation of a liberal capitalist social order."⁽⁴³⁾ His prescription was a fascinating one. At first it appears that Mr. Bork is proposing a form of originalism. We should move away from "political choice by courts" and back to "legislative decision by Congress." Should the antitrust statutes be enforced according to the original intent of Congress? It quickly becomes clear that Mr. Bork has some doubts. "Antitrust" he tells us, "is a subcategory of ideology."⁽⁴⁴⁾ "[Its] basic premises are mutually incompatible, and because some of them are incorrect, the law has been producing increasingly bizarre results... The law must either undergo a difficult process of reform, based upon a correct understanding of fundamental legal and economic concepts, or resume its descent to the status of an internal tariff against domestic competition and free trade."⁽⁴⁵⁾

At this point one might wonder where this "correct understanding" was going to come from. A later Mr. Bork would surely say that unless it represented Congress's actual intentions, no matter how mistaken, it would merely be the substitution of another impermissible judicial opinion in place of that of the legislature. The current Mr. Bork would say that subjective intentions were irrelevant, all that matters was the way the statutes were understood at the time. Mr. Bork circa 1968 could have believed that it was possible to "derive" a new antitrust policy "logically by finding and extrapolating a more general principle" underlying the "particular guarantees" of the antitrust statutes, but Mr. Bork circa 1971 had already pronounced that method "erroneous[]."⁽⁴⁶⁾

In the event, the answer is something of a mixture. Much of the basic argument in The Antitrust Paradox is historical, but it is an interesting kind of history. As, indeed, it has to be. Most historians would agree that the antitrust rules were established with, among other goals, the aim of preventing the concentration of economic power in American society. Those who wrote and passed the statutes seemed to have the strange notion that enormous concentrations of economic power were, in and of themselves, subversive of the American republic. But this is exactly the kind of egalitarian claptrap Mr. Bork will not tolerate. Consequently, he feels free to step in and correct the errors of Congress and the courts, to supplement their feeble attempts to say what they mean with the modern wisdom of economic analysis.⁽⁴⁷⁾

In a passage which reads strangely coming from the author of The Tempting of America he argues that the current principles of antitrust were never confirmed empirically, but admits that they do have history on their side. "What is true is that our ideas are old; they carry whatever credentials time alone can confer. The years 1890 to 1914 witnessed the origin of every major theory that drives and directs the evolution of antitrust to this day."⁽⁴⁸⁾ Mr. Bork does not wholly reject the intentions of the Framers. "The concept of legislative intent may be artificial, but it is also indispensable. Besides the construct is not wholly arbitrary." ⁽⁴⁹⁾ But he does not want the actual, raw confused goals that those who passed the statutes either had, or were understood at the time to have had. What he wants is a legislative intent purified and refined in the fires of modern views about economy and society. "A legislature may never address the issue of ultimate policy goals and yet write a law whose various categories and distinctions can be explained only by a particular policy. That policy may then quite legitimately be said to have been intended by the legislature, even though not a single member articulated it to himself.⁽⁵⁰⁾ From these interesting premises, his "not wholly arbitrary" vision of legislative intent and a modern lawyer's vision of microeconomics Mr. Bork can tell that while the antitrust statutes had many goals, they "have only one legitimate goal, and that goal can be derived as rigorously as any theorem in economics."⁽⁵¹⁾ The goal is "consumer welfare."

It is fascinating to compare Mr. Bork's feelings about the degree to which it is permissible to supplement the original intention or understanding of the antitrust statutes, as opposed to that of the Constitution. He speaks dismissively of the "primitive state of the law's economic doctrines"⁽⁵²⁾ and moves quickly to deploy the weapons of modern economic analysis. Yet when contemporary legal scholars do the same thing to the Constitution, bringing to higher levels of generality principles which only have "whatever credentials time alone can confer" or which are thought to be morally reprehensible, Mr. Bork considers it the worst kind of sacrilege.

It is no answer to say that antitrust law is merely statute law. Mr. Bork explicitly argues that original understanding applies across the board as a legal philosophy. Another possible response would be to argue that the original understanding can be supplemented by developments in a supposedly value-free field such as economics, but not from a change in moral attitudes. Even if we accepted the dubious epistemological premise, this would get Mr. Bork no further. Displaying a meticulous reverence for historical sources, my colleague Jim May has shown the impossibility of this position.⁽⁵³⁾ In fact, the authors of the antitrust statutes had a perfectly coherent economic theory which simply favoured different values than the one we have at the moment. The statutes and early cases did not merely rest on "open-ended subjective populism" but instead on the classical economics propounded by the likes of Wayland and Bowen, and eagerly absorbed by a generation of legislators and judges.⁽⁵⁴⁾ This vision gave rise to "analyses that, while faithful to one generation's economic vision, could be found not only faulty, but practically unintelligible by a later generation of antitrust analysts influenced by a very different vision of the nature of economic reality."⁽⁵⁵⁾

If one puts a multi-goal antitrust policy to the test of an economic theory which postulates "consumer welfare" as the highest good, it will obviously fail. But what happens if, as the philosophy of original understanding requires, we test it according to the economic system which would have been held at the time? According to classical economic theory, with its concern for the distortion of "natural processes" its belief that political morality and economics are indissolubly connected, the antitrust policy of which Mr. Bork is so scornful does rather better. Even if original understanding did not force us to look to the contemporary economic wisdom at the time the antitrust statutes were written, Mr. Bork has no way of proving to us that his economics serves preferable values. Why is consumer welfare better than economic decentralisation? "There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ."⁽⁵⁶⁾ Mr. Bork is caught once again, and in nets of his own devising.

Mr.Bork's Flight from Value:

We have now reached a point where it is possible to find the Ariadne's thread which will lead us through the maze of Mr. Bork's ideas. To some, the revelation that Mr. Bork has espoused so many different legal theories, and done so with such vigour, would suggest that he is merely a conservative ideologist-for-hire, producing whatever legal theory is needed in order to win the political debates of the moment. Though I deeply disagree with Mr. Bork about almost everything, I think this would be an unfair reading. Instead,I think that Mr. Bork's long march through the halls of conservative legal theory should be seen as a sincere, almost anguished, attempt to deal with a single dilemma -- a dilemma pointed out by the sentence quote in the paragraph above. If there is no way of deciding matters of legal interpretation except "by reference to some system of moral or ethical values that has no objective or intrisic validity of its own," then what had happened to the rule of law itself, or to the line between law and politics?

In my view, this is the most important recurring theme in Mr. Bork's writing. (Although, as I will argue later, The Tempting of America may mark a partial break with the rest of the canon.) In Civil Rights--A Challenge, that concern led him to believe that Congress had no business to overpower the arbitrary value judgements of racist hotel keepers with an arbitrary value judgement of their own. If value judgements are truly arbitrary, the law should carve out spheres of liberty in which people can decide for themselves. In The Supreme Court Needs a New Philosophy, his concern was expressed in terms of a commitment to "process" rather than substantive (and arbitrary) value choice, at least in those areas the political process functioned well. In those areas where it did not function well, Mr. Bork advocated the a chastened and craftsmanlike derivation of new "natural rights" underlying the liberties which must be protected from majorities. Again, those liberties must be protected precisely so that a minority could exercise its own arbitrary values in private, free from the heavy-handed (and arbitrary) value judgements of the majority. In his Neutral Principles article, that concern manifested itself as a commitment to protect only those rights for which a Wechslerian "neutral principle" could be generated, and to let the majority have express its unreviewable value judgements everywhere. In The Antitrust Paradox that concern leads him, as it has led a good many conservatives recently, to reject the contentious and ideologically loaded choices he saw in the law and to embrace instead the scientific certainties apparently offered by microeconomic analysis.

To this end, Mr. Bork tells us that the microeconomic theory we need is not to be confused with the contradictory set of theories actually produced by economists. That belief is an understandable mistake of the lay mind. "The layman is likely to think that economic theory is what any economist theorizes, but of course it is not. If it were we should have to believe that there are dozens or hundreds of mutually incompatible versions of economic theory, each as good as any other."⁽⁵⁷⁾ And that could not be tolerated, because the point of this whole process was to introduce a scientific and unchanging criterion, a goal of antitrust that "can be derived as rigorously as any theorem in economics." It wouldn't do to suggest that economics, itself, might embody unexplained value choices, or be subject to internal professional dispute. Consequently, "the judge, legislator or lawyer cannot simply take the word of an economist in dealing with antitrust, for the economists will certainly disagree."⁽⁵⁸⁾ When he decides that history offers a better surcease from constitutional value judgements than does economics, Mr. Bork will implicitly take a similarly dismissive view of the kind of history that historians produce.

Here then, is the heart of Mr. Bork's intellectual mission -- to offer a convincing conservative answer to the central question of liberal society. How can we run a society if value judgements are subjective and relative? Each of his theories seems to offer the hope of answering this question but eventually collapses, driving him to the next, "inescapable" set of ideas. When he was a libertarian, he believed that we could simply leave value judgements to individuals, but then he became obsessed with the difficulty of drawing the lines inside which individuals could exercise their arbitrary values. In his moments of traditional judicial restraint, he believes that those choices can be left to the political process, if they are first properly framed by a court steeped in the wisdom of Alexander Bickel. Yet part of him doubts that the line between those issues that the court must solve itself and those that it can leave to another institution can be drawn quite so neatly. When he comes under the sway of Herbert Wechsler's theory of neutral principles, he accepts that courts may actually decide hard questions so long as they do so under a principle which is "neutral" as to visions of the good. When he writes The Antitrust Paradox he believes that the value judgements expressed by the legislature can be purified by the scientific wisdom on economic analysis, and thus can provide legislative goals as rigorously derived as any theorem of economics. His final turn (at least for the moment) has been to turn to originalism, the theory he once scorned as naive. Originalism "solves" the problem of value in constitutional theory by claiming that it only applies the Framer's value judgements, and those value judgements are not values at all, but historical facts. Since liberal epistemology accepts that we can have a rational discussion about facts, we have solved the problem of value for constitutional theory. Or have we?

The better known variant of originalism, and the one that Mr. Bork first adopted and held as recently as 1986, was the philosophy of original intent.⁽⁵⁹⁾ The Constitution means what the Framers (or perhaps the Framers and ratifiers) meant it to. This is also the most influential version -- the judicial philosophy championed by recent Attornies General. But if the philosophy of original intent is the most popular version, it is also the easiest to blow out of the water. Listing the arguments against it is the kind of arduous, lengthy and repetitive task which Victorians believed suitable for the rehabilitation of convicts. I undertake it here in the hope of acquiring virtue.

• First, the idea that the intention of the original author must govern the meaning of the text is simply not true as either a practical or a philosophical matter. Actually, in both law and life we use lots of different interpretive criteria to establish what something "means."
  
  
• Second, even if original intent was the preferred method, there is strong historical evidence that the intention of the Framers was that their intentions should not bind future generations. Original intent tells us to obey the Framers and the Framers said, "our intention shouldn't govern."
  
  
• Third, even if original intent wasn't philosophically and historically bankrupt, the records we do have of the Framer's original intent indicate that it is either contradictory or indeterminate. Sometimes both. Since the proponents of original intent argue that we must embrace their method or else admit that the Constitution could mean anything, it is bizarre to find that his method itself is no more than a judicial Rohrsach blot.
  
  
• Fourth, in those few areas where original intent is clear, it is sometimes morally outrageous. Any protagonist of original intent must confront the question of whether or not, as a moral matter, we can responsibly allow the intentions of men, some of whom believed ardently in slavery and almost all of whom believed in the innate inferiority of women, to govern current constitutional interpretation.
  
  
• Fifth, to adopt original intent as the supreme method of constitutional interpretation flies in the face of most of the Supreme Court's jurisprudence, the vast majority of scholarly writing, the opinions of most constitutional historians and, probably the majority of the American people. It also raises impossible questions of transition from our current constitutional arrangements. As Mr. Bork once put it, "[t]his Nation has grown up in ways that do not comport with the intentions of the people who wrote the Constitution -- the commerce clause is one example -- and it is simply too late to go back and tear that up. I cite to you the legal tender cases. These are extreme examples admittedly. Scholarship suggests that the Framers intended to prohibit paper money. Any judge who thought today he would go back to the original intent really ought to be accompanied by a guardian rather than be sitting on a bench."⁽⁶⁰⁾
  
  

To sum up, original intent is a philosophically incoherent method which appears to contradict the Framers own intentions. It is sometimes morally objectionable, sometimes indeterminate, flies in the face of precedent and scholarship and raises insuperable problems of practical implementation.

The Move To Original Understanding:

With this range of defects it is hardly surprising that Mr. Bork chose to shift his ground somewhat. In The Tempting of America he argues that the understanding of the public at the time the Constitution was ratified, rather than the intent of its original authors, should determine its meaning. There is obviously a price to pay for making this change. The best thing about the intent of the framers was that it appealed to the unreflective idea that a document must always mean exactly what its authors meant it to -- no more and no less. The practitioners of original intent can claim with superficial plausibility that their method is the one "natural" way to read the text. They can even claim that we often (though not always) read other legal documents this way -- trying to determine what Congress, or the judge, or the administrator meant by this word or that phrase. Original understanding has less unreflective appeal. Precisely because it is a more sophisticated notion of interpretation, it sacrifices the idea that this is the only credible way to read a text (what about what the words mean out of context, or what the author meant?) the appeal to everyday practice and perhaps even the claim that this is the way we read other legal documents.

This problem is a particularly acute one for Mr. Bork. Throughout The Tempting Of America he explicitly connects his struggles to those going on within other disciplines. As well he might. Most disciplines seem to have rejected the idea that the text can only be read to mean what the author intended. Literary critics and historians have added other methods of reading. How would the text have been understood by its audience at the moment that it was written? How would an audience today understand it? Can the text be illuminated by evidence of the author's subconscious desires or conflicts? How does the text read if we take it as an a-contextual attempt at philosophical argument?

These other methods are referred to collectively (and a little pretentiously) as "the reader's revolution against the author." They represent everything that Mr. Bork finds most reprehensible in today's scholarship. He quotes approvingly a letter from intellectual historian, Gertrude Himmelfarb attacking this impermissible openness to other methods of interpretation. "Any methodology becomes permissible (except of course, the traditional one), and any reading of the texts becomes legitimate (except, of course, that of the author)." (p. 137) If Mr. Bork was still claiming that constitution meant what its authors intended, this would be all well and good. But the trouble with Mr. Bork's revamped and sophisticated version of originalism is that it can no longer appeal to the romantic idea that the imperial will of the author must govern the text. "The search is not for a subjective intention." (p. 144) Instead, he has handed over interpretive competence to the historically located readers of the constitution. For reasons we can only speculate about, he has shifted ultimate interpretive authority from the Framers of the Constitution to the "public of that time." Mr. Bork has joined the reader's revolution.

As I pointed out before, this switch is a costly one for Mr. Bork. To the initial cost of having been seen to adopt the very same methodology so often criticised by conservatives in other academic disciplines, one also has to add the cost of having been seen to change from one dogmatically asserted position to another. Mr. Bork obviously feels this one particularly strongly because he denies having done it. Though he described himself during the hearings as "a judge with an original intent philosophy"⁽⁶¹⁾ and argued in print that "original intent is the only legitimate basis for constitutional decision-making",⁽⁶²⁾ he says in The Tempting of America that "[n]o even moderately sophisticated originalist" believes the Constitution should be governed by "the subjective intent of the Framers." (p.218) He suggests that no-one could ever have held such a belief, because it would necessarily mean that the secretly held beliefs of the Framers could change the meaning of the document. Thus all (moderately sophisticated) originalists must have believed in original understanding all along. This seems like a red herring. There are many varieties of intentionalism and many varieties of "reader-controlled" interpretation. But allowing the intention of the author to control interpretation is fairly obviously not the same thing as allowing the understanding of the reader to control. Expanding the definition of intentionalism does not turn it into the philosophy of original understanding. The `intention of the Framers and ratifiers' is not the same as `the understanding of the American people at the time.' Mr. Bork seems to find it hard to admit the change.

The most interesting example of Mr. Bork's scholarly method is the point in The Tempting of America he takes sections from his 1986 article The Constitution, Original Intent, and Economic Rights⁽⁶³⁾ which, as one might suspect from the title, defends original intent, and uses those sections to defend original understanding. At first glance, it appears that he does this by finding the words "original intent" wherever they appear in the article, and simply replacing them by "original understanding." Chunks of text which had reproved Paul Brest with failing to understand that the original intent determines the meaning of the 14th Amendment, are edited, expanded upon, a new philosophy of interpretation inserted. With a quick change of key words they can become reproofs to Paul Brest for failing to understand that original understanding determines the meaning of the 14th Amendment.⁽⁶⁴⁾ Even the same counterarguments can be pressed into service. In 1986 for example, "[t]here is one objection to intentionalism that is particularly tiresome. Whenever I speak on the subject someone invariably asks: "But why should we be ruled by men long dead?"⁽⁶⁵⁾ In 1990, Mr. Bork finds that "[q]uite often, when I speak at a law school on the necessity of adhering to the original understanding, a student will ask, "But why should we be ruled by men who are long dead." (170) In the era of the word processor, this kind of "search and replace" jurisprudence has its attractions. Still, both the interpretive criteria and the identity of the `dead men' has changed, and Mr. Bork seems uneasy with that fact.⁽⁶⁶⁾

The closest Mr. Bork comes to admitting a prior attachment to intentionalism, is that point at which he confesses having previously "written of the understanding of the ratifiers of the Constitution" (144). Actually, he wrote of the intentions of the ratifiers, and a more characteristic statement from his earlier self would be "I wish to demonstrate that original intent is the only legitimate basis for constitutional decision-making."⁽⁶⁷⁾ This seems definite enough, but the new Mr. Bork does not like it. Having de-emphasised intention, and converted Framers to ratifiers, he then claims that he was merely using "a shorthand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean." (p.144) Of course, according to his new theory, what Mr. Bork meant by his "shorthand terms" is irrelevant, the important thing is what he would be understood to mean when he said "original intent." Perhaps he feels his new method should not apply here.⁽⁶⁸⁾

So Mr. Bork pays a high price for his move from original intent to original understanding. Is the game worth the candle? Does he succeed in escaping the devastating critiques of original intent which apparently prompted originalists to switch their ground in the first place? Sadly for him, the answer is no. In fact, a little reflection will reveal that the philosophy of original understanding is beset by exactly the same problems as the philosophy of original intent and has less intuitive appeal, to boot.

Problems with Original Understanding:

The first problem facing original intent was that it could not claim to be the only authoritative way to read a text. Obviously, shifting one's focus from author's intentions to reader's interpretations hardly supports the claim to have the uniquely correct method of interpretation. In fact, although Mr. Bork claims that original understanding is his watchword, there are several places in the text where he simply forgets and uses language more appropriate to original intent.⁽⁶⁹⁾ This makes it particularly hard to accept his claim that original understanding is so clearly the only way to interpret the constitution that it should be made a precondition of judicial confirmation.

The second problem facing original intent was that there is considerable evidence that the Framers themselves intended that their intent should not govern future interpretation. In an article cited by every work on original intent (except, notably, Mr. Bork's) and entitled The Original Understanding of Original Intent⁽⁷⁰⁾, Professor H. Jefferson Powell showed that the Framers had a completely different vision of interpretation, one governed more by the traditional hermeneutic methods of the common law than by the simple notion of original intent. If one had to pick a single motive which prompted originalists to switch their attentions from intent to understanding, it is probably the difficulty of dealing with this article. (Mr. Bork's method, which is simply never to mention it, is also remarkably effective.) Unfortunately, original understanding fares little better, as this quotation from Alexander Hamilton might indicate.

The Secretary of State will not deny, that whatever may have been the intention of the framers of a constitution. or of a law, that intention is to be sought for in the instrument itself, according to the usual & established rules of construction. Nothing is more common than for laws to express and effect, more or less than was intended. If then a power to erect a corporation, in any case, be deducible by fair inference from the whole or any part of the numerous provisions of the constitution of the United States, arguments drawn from extrinsic circumstances, regarding the intention of the convention, must be rejected.⁽⁷¹⁾

Laws can express or effect more than was intended, or for that matter, understood. In such a case, the true guide is the "usual and established rules of construction" -- which when Hamilton was writing, most assuredly did not mean Mr. Bork's theory of original understanding.⁽⁷²⁾

The third problem of original intent was that it is hailed as a corrective for indeterminacy, and yet remains as indeterminate as any of the theories with which it competes. Needless to say, when one switches from the indeterminate intentions of a group of authors to the indeterminate intentions of a (remarkably indeterminate) group of readers, the problem is hardly solved. Surprisingly, the implications of the choice between original understanding and original intent has received only occasional attention inside the originalist movement⁽⁷³⁾ and little attention outside.⁽⁷⁴⁾ Obviously, the historical methods used to work out the understanding of the public will differ from those used to work out the intention of the framers. Should we follow William Crosskey and develop a "dictionary of the eighteenth century word usages, and political and legal ideas, which are needed for a true understanding of the Constitution"?⁽⁷⁵⁾ Should we parse the Federalist Papers, the hermeneutic conventions of 18th century common lawyers, or the propaganda pamphlets and broadsheets which the average voter might have considered? Even if we could agree that understanding and not intent should govern, how do we decide whose understanding is relevant? The delegates to the Conventions? The ratifiers? The people who elected the ratifiers? An average member of the legal profession? Of the public? Should we include the disenfranchised, or is this to be an entirely white and male original understanding? Even if we could agree on the correct group the evidence we have of opinions within such groups indicates that their "understanding" diverged markedly depending on class, political affiliation, professional status and geographical location.⁽⁷⁶⁾ Strike three against original understanding.

The fourth problem of original intent was that -- in a fair proportion of those few cases where we have any idea what it might have been -- it is morally objectionable. This problem is made no better when we turn to original understanding. Franchised American society was overwhelmingly a privileged white male group. The opinions of a majority of that group would strike us to day as sexist, racist, class-biased and heavily elitist. Do we want their understanding to govern?

The fifth and final problem with original intent was that it flew in the face of years of two hundred years of Supreme Court jurisprudence, was contradicted by the majority of scholarly opinion and wasn't -- if Mr. Bork's confirmation hearings were anything to go by -- supported by a majority of the population. Again, original understanding fares no better. As with original intent, what we have here is a philosophically flawed, historically contraindicated method of interpretation which is often practically indeterminate, sometimes morally objectionable and generally at odds with past practice and scholarship.

How does Mr. Bork deal with these, apparently serious, problems? In particular, how does he deal with the very real historical challenges to both the validity, workability and moral acceptability of his method? The answer to that question is rather hard to answer because there is almost no history in this book. Mr. Bork quotes a few passages from letters or cases, but never engages in the very practice of historical exegesis of the constitution which he would require of judges. The only sustained historical work in the book is a history of Supreme Court cases which Mr. Bork thinks are particularly good or particularly bad. Since he is advocating an historically based method, it is worth looking at the calibre of the one piece of history he actually offers us.

No one, we presume, supposes that any change in public opinion or feeling.... should induce the court to give to the words of the Constitution a more liberal construction... than they were intended to bear when the instrument was framed or adopted. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended: but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.

Mr. Bork's History

This quote is not taken from Mr. Bork's book, though it expresses his sentiments admirably. Nor is it taken from a speech given by a Reagan or Bush appointee to the Justice Department, though it bears all the hallmarks of such a document. The quotation comes, in fact, from a Supreme Court Case. Here is a neat and thoroughly authoritative judicial statement of the philosophy of original understanding. As such, one might imagine that it finds great favour with Mr. Bork, Mr. Meese et al. Nothing could be further from the truth. This quotation comes from Dred Scott v. Sandford,⁽⁷⁷⁾ probably the most infamous case ever decided by the Supreme Court and the one most universally reviled by generations of law professors; reviled even by Mr. Meese and Mr. Bork.

The quotation is no isolated example. A large portion of Taney's 241 page opinion is given over to the original understanding of the Constitution on the matter of slavery. Taney not only searches for the original understanding of the Constitution, he uses it to interpret the Declaration of Independence. Could the slaveowners who wrote and ratified that document really have intended that "all men" mean all men? Using original understanding as his guide Taney is able to decode the meaning of these apparently general words.

The language of the Declaration of Independence is equally elusive. The general words.. would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.⁽⁷⁸⁾

Some of the Founders of the Republic were slaveowners. So were many of the citizens. Since they cannot be presumed (by Taney or Bork) to be hypocrites, and since their understanding of the document -- not the meaning that the words have come to acquire -- is dispositive, there can be no doubt on the matter. Slaves have no share of the rights claimed by the Declaration of Independence.

Given these methodological premises, how can we doubt that Dred Scott will lose? Changing sentiment, moral outrage; all of these are irrelevant. Perhaps it is worth recalling the words quoted above, in their unelided version this time.

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed or adopted.⁽⁷⁹⁾

Justice Taney, like Mr. Bork, knows that his conception of the judicial role is the correct one. Justice Taney, like Mr. Bork, has in his hands a timeless document.

It is not only the same in words, but the same in meaning and it delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter from the path of duty.⁽⁸⁰⁾

Does Dred Scott discredit the philosophy of original understanding? Obviously, it is disconcerting to find that one of the strongest defenses of your philosophy in the most reviled case in the history of the United States Supreme Court. It is more than disconcerting to find that original understanding seems to write slaves out of the Constitution and the Declaration of Independence. Still, one might argue that even a good method can produce bad results. Is that Mr. Bork's response? Not exactly.

Mr. Bork does feature Dred Scott in his capsule, post-lapsarian, history of the United States Supreme Court. He also agrees that the case is a bad one -- "[s]peaking only of the constitutional legitimacy of the decision, and not of its morality, this case remained unchallenged as the worst in our history until the twentieth century provided rivals for that title" (p. 28) So how does Mr. Bork deal with this taint on the escutcheon of original understanding? Well, by ignoring it, mostly.

The case takes up 241 pages in the Reports. There is no need to examine all of its dubious arguments; it was quite evident not only that Scott was to remain a slave but that Taney intended to read into the Constitution the legality of slavery forever" (p. 30).

Having decided that there is "no need to examine" Taney's "dubious arguments" (many of which were appeals to original understanding), Mr. Bork concludes that the real evil in Taney's opinion is that it introduces the concept of substantive due process, a "concept that has been used countless times since by judges who want to write their personal beliefs into a document that, most inconveniently, does not contain those beliefs" (p.31). With this breathtakingly simple move, Mr. Bork himself is able to ignore all the inconvenient parts of Taney's opinion, instead to concentrate solely on Taney's "introduction" of substantive due process. Of course, substantive due process is, in Mr. Bork's mind, one of the most appalling features of contemporary liberal jurisprudence -- exactly the kind of thing you can expect from judges not bound by the original understanding of the constitution. The message is clear. This is "the worst constitutional decision of the nineteenth century" (p.28) and it is the ancestor of contemporary liberal constitutional interpretation. Can the fruit fall far from the tree?

As if this were not enough, Mr. Bork then turns round and concludes that the judicial hero of Dred Scott, Justice Benjamin Curtis, author of the dissent, was actually the case's real proponent of originalism. He can do this only by using quotations which will not bear the meaning he assigns to them and by completely ignoring the elegant, passionate and explicit defense of original understanding contained in the majority opinion. From any scholar, this would be a disappointing performance. But Mr. Bork is not just any scholar. He is a scholar who claims that the historical record of the original understanding of the constitution provides a real check against judicial activism. Yet, with "history" like this, what could not be proved?

It would be tempting to argue that Mr. Bork's failure even to mention the originalist leanings of Dred Scott undermines the rest of his argument. Tempting but unfair. On the other hand, we cannot believe that he would think it irrelevant that this notorious pro-slavery opinion is grounded in original understanding. The problem must be dealt with. Let us therefore be charitable and presume that he did not have the opportunity to read the case before writing about it. How might he revise his notional history of the Supreme Court to take into account what Dred Scott actually says? First, he has to explain how we can put any trust in a method used in such a despicable case -- by no means an impossible thing to do. His response, I think, would either be that his method can be convincingly manipulated to reach bad results, or that it was correctly used but, in this case, produces results we find despicable because the Framers and ratifiers of the constitution really were racists. The former response tends to undermine his claim that reliance on original understanding really constrains judicial behaviour. The latter brings a second more fundamental problem in its wake.

The second and more fundamental problem that Mr. Bork must deal with, is the question of morality. Taney's opinion makes the entirely reasonable point that, since we cannot presume them to be hypocrites, "the conduct of the distinguished men who framed the Declaration of Independence" shows that document to guarantee only the rights of Caucasians. After all, if they had declared all men to be equal and then kept slaves "instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation." Taney also argues with some force that the historical record at the time of the writing of the Constitution shows that the "unfortunate" Negro race was thought of as almost a different species. These views, to say nothing of views about women or the working class, are clearly part of both the intention of the Framers and the understanding of franchised citizens at the time. Can we accept as an interpretive guide to the Constitution, the understanding of a group of men whose views were sometimes so abhorrent? It is of no use to say that there were also abolitionists and radical republicans at the Philadelphia Convention, among the ratifiers of the Constitution and scattered through the general voting population. Even if that could rescue Mr. Bork from moral objections, it would open him up to charges that there was no such thing as a single "original understanding."

Mr. Bork's response seems to be that the morally abhorrent views of the Framers have since been purged from the Constitution by amendment -- the 14th and 19th amendments in particular. This is a particularly weak argument, in a book not burdened unduly by strong ones. Imagine for a moment that Mr. Bork can identify some coherent group whose understanding of the constitution is clear and consistent and whose views ought to bind us. Does he think that the moral views of that group were not part of a system but rather a random collection of separate, independent elements? Can we pick through their beliefs like someone picking through a handful of toothpicks scattered on a table? Can we discard racism and misogyny, keeping the rest intact? If you believed that women, blacks and the working class to be inferior and fundamentally untrustworthy, your ideas about the necessary structure of society and the division of powers between the organs of government would obviously be different than those of someone who had more egalitarian and democratic assumptions. It is a strange world Mr. Bork lives in, if he thinks a person's deepest moral views have no connection to each other, no implications for their other ideas. But then again, Mr. Bork does live in a strange world. His unusual combination of authoritarian constitutional interpretation and moral skepticism probably does allow him to believe that moral values have no connection to each other.

The liberal response to the problem of eighteenth century bigotry is to say that we should not be faithful to the Framers' concrete intentions, or the understanding of those who ratified the Constitution, but instead to a generalized and coherent version of the moral system they articulated. When the authors of the Declaration of Independence say "all men," meaning and being understood to mean only men, and white men at that, we should abstract the universal principle from its rough and irrationally biased historical origins. Purified in the fires of Kantian moral theory it will give us the non-racial, sexually equal democracy we (in the insidious knowledge class) have always wanted. This answer will not save Mr. Bork's project. It is exactly what he fears most.⁽⁸¹⁾

Having traced out every possible avenue of escape for Mr. Bork, one can see why he finds "no need" to trace out Taney's "dubious arguments." Those arguments are his own, and they lead him where does not want to go.

Bork a Burkean?

At the beginning of this essay, I argued that it would be a mistake to dismiss Mr. Bork's work too easily. It is true that its philosophical and historical errors, confused argumentation and sloppy research⁽⁸²⁾ make it a particularly easy target for the reviewer's barbs. Nevertheless, to dismiss it with a facile (or even a contemptuously patronising) account of its manifold contradictions is to leave a number of important questions unanswered. If the arguments in this book are really so weak, why does one get the sense while reading it that it taps some deep wellspring of discontent with the discourse of liberal politics and academia? Put another way, if this book -- praised to the heavens by the conservative political pundits featured on the book jacket -- seems to liberals to be just so much dross and bluster, does this mean that one side is being deceitful, or that there is a fundamental breakdown of communication between the two sides?

My answer to these questions is that there is not one argument in Mr. Bork's book but two, although only one of them will be recognised as "an argument" under the current canons of political and academic discussion. The Tempting of America is, in fact, a schizophrenic work which, on the one hand, attempts falteringly to justify the theory of original understanding within the epistemological framework of liberal rationalism while, on the other, it presents a basic challenge to that entire framework. To be sure, the challenge is not a systematic one. To be sure, it is one that was made (and made better) two hundred years ago by Edmund Burke. To be sure, Mr. Bork turns and twists and contradicts himself. To be sure, he does not seem capable of separating the occasions when he is trying to satisfy the canons of liberal thought, from those occasions when he is challenging them. But there is a challenge here, for all that -- a challenge to such fundamental tenets of liberal rationalism as the idea that no one has a privileged insight into the moral universe, or that all social institutions should be held up to the test of reason, and those which fail should pass from the earth. In fact, there is a challenge to the possibility of comprehending the social world at all if we rely only on "the fallible and feeble contrivances of our reason." For the first time, it appears that Mr. Bork is beginning to challenge the centrality of the problem of value, the problem which has driven him through libertarianism to process theory and natural rights, from natural rights to neutral principles, from neutral principles to economic analysis, and from economic analysis to original intent. Each of these past methods promised to solve, or at least salve, the problem that, in a liberal society, values are presumed to be subjective and arbitrary and the state is supposed to embody no particular conception of the good. Mr. Bork's past ideas offered to provide the touchstone of a neutral method (economic analysis, neutral principles), while others claimed to have identified the right parties whose values should govern (libertarianism, process theory and original intent). All assume that the subjectivity of values is the problem to be solved and that reason is the tool to solve it. It is my claim that, at certain places in his most recent work, Mr. Bork moves away from both of those assumptions. To explain how he does so, I must first set the stage.

So far in this article I have concentrated on those places where Mr. Bork has tried and failed to shoehorn his ideas into the analytical framework provided by liberal rationalism -- a set of claims about mind and society until recently so widely accepted that it was hard to remember that it was only as set of claims, and not "the way things are." In this section I will focus on the other strand of his ideas. In order to do so, I will compare Mr. Bork's ideas to those of those of the great 18th century conservative, Edmund Burke. One is a deep and trenchant thinker writing at the dawn of "the age of reason," the other is a popular conservative hero writing in what is supposed to be its twilight. The surprising similarities in their ideas may explain the attractiveness of Mr. Bork's work despite its analytical flaws. At the same time, it may illuminate the condition of late twentieth century conservative thought. To bring out this other side of Mr. Bork's work, it is necessary to return to those parts of his argument which will undoubtedly strike reviewers as unusually dogmatic and contradictory -- in particular, his attempt to have his philosophy of interpretation imposed as a prerequisite to confirmation, and his account of the legitimacy of "moral legislation."

As the reader may recall, Mr. Bork believes that it would be a contentious, political (and therefore a bad) decision to require that candidates for judicial confirmation adhere to some school of interpretive method. Other than his own, that is. We could not insist, for example, that candidates for the Supreme Court swear they would only look at the words of the constitution and take them at face value. Nor could we insist that judges swear that they would interpret the constitution's provisions in the light of changing moral sentiment, or economic efficiency, or technological progress, or democratic values. To impose any of these interpretive methods -- even the formalistic one which claims to look only at the words of the document -- would be "political." But it is not "political" (although clearly contentious) to insist that judges swear loyalty to the method of original intent as a precondition for their confirmation. It is not political because that method is right.

This argument, with its confident willingness to impose itself on those with different views, is a hard one to make if one believes in relativism and the idea that values are subjective. After all, one premise of the liberal state is that no-one has a privileged insight into the moral or philosophical universe⁽⁸³⁾. No-one can claim to have moral truth and then use this claim to rightness to get the state to enforce their views on others.⁽⁸⁴⁾ No-one except Mr. Bork, that is? To make this argument, within the canons of liberal rationalism, Mr. Bork contorts himself into the knots described in the first part of this essay. He claims that his (current) method of interpretation is not a method at all, but the only way to read a legal text properly. He claims that it is neutral in derivation and application, and not a set of value judgements, or if it is a set of value judgements that they belonged to the Framers and ratifiers. He claims that it is historically well-founded and then (rather confusingly) that even if it wasn't we would have to invent it. He claims.. well, he claims a lot of things and none of them are very convincing. In fact, they are so unconvincing that one sometimes wonders whether or not Mr. Bork really cares very much about whether or not we believe them. What would his argument look like if he rejected the premises of liberal rationalism and offered some other set of premises so that he no longer had to tie himself in knots proving the impossible? In that case, Mr. Bork's argument would not look like weak apologetics, but instead like an open attack on liberalism, both classical and modern, an attack on the fundamental premises held by both conservatives and liberals. As such it would deserve the extra respect and attention we should accord to all root and branch attacks on our most basic assumptions.

I hasten to say that it would be stretching a point to say that Mr. Bork does in fact make a frontal attack on the premises of liberalism. But for every time that he accepts those premises, there is another moment when he challenges them. His discussion of morals provides a particularly good example.

At first, Mr. Bork comes across as entirely conventional in his premises, if not his conclusions, about moral argument. Like the sexually active, egalitarian members of knowledge class, he spends a considerable amount of time talking like a social rationalist and a moral relativist. Scattered throughout The Tempting of America are discussions apparently based on the idea that moral values (but not interpretive methods) are subjective, relative and not subject to rational discussion. It is for exactly this reason that he believes that the some of the issues beloved of liberal constitutionalists should be decided by legislatures rather than courts. Courts have no business deciding questions of value, where one person's opinion is as good as another and thus the majority decision is the only valid one. This opinion appears time and time again. He says of the debate over the death penalty, for example, "[i]t does no good to dress the issue up as one of moral philosophy, because such philosophy does not give a clear answer. Arguments have been made both ways and none is conclusive." (p.214.)

Needless to say, Mr. Bork does not think much of contemporary academic forays into moral philosophy. With eminent fairness, he points out that "[i]f the greatest minds in our culture have not succeeded in devising a moral system to which all intellectually honest persons must subscribe, it seems doubtful, to say the least, that some law professor will make the breakthrough any time soon." (p. 255) Who can disagree? He announces that he has made a decision, already evidenced by his presentation of opposing arguments, to give up reading legal scholarship of this type. "There comes a time to stop visiting inventor's garages to see if someone really has created a perpetual motion machine." (p. 255) Who can suppress a pang of sympathy? Mr. Bork even agrees with Alisdair MacIntyre that "[t]here seems to be no rational way of securing moral agreement in our culture."⁽⁸⁵⁾ Again, these seem like the words of a moral relativist.

It is in his argument in favour of "legislated morality" that Bork's views become more complicated. He still seems to believe that moral decisions are not subject to proof or refutation and thus are unreviewable by the analytic techniques of judicial reason. Thus there is no alternative but to leave it to the democratic legislature and the majority view. This sounds like moral relativism to me. But Mr. Bork reserves the term "relativist" for those who disagree with him, particularly those who disagree with him about the propriety of "legislated morality." Liberals assume that if morals are subjective and relative, the state should not be allowed to legislate morality for its citizens. Mr. Bork draws rather different conclusions.

There being nothing in the Constitution prohibiting legislated morality, the only opposition to it rests upon a moral view. The Bowers dissent said as much when it stated as a "moral fact" that a person belongs to himself and not to others or to society. Moral relativism is, after all, one moral position. But the imposition of moral relativism upon legislatures by judges is not, strictly speaking, moral relativism in itself. It is more accurately described as the belief that the only valid and trustworthy morality is the judges'. p. 126.

The key to this argument is the way it deprives moral relativism of the universal status claimed for it. By reducing moral relativism to the status of just one particular moral system, rather than a universalistic claim about moral systems, Mr. Bork is able to turn the tables rather neatly. To say that we cannot legislate morality would be to impose a moral view -- moral relativism -- something which moral relativism itself should prohibit. Legislated morality cannot be reviewed, precisely because it is morality. The judge's opinion is of no more weight than anyone else's. Very well, then. How do we know when something is a moral issue? The answer to that question turns out to be a little more complicated.

Discussing the application of the 14th Amendment's guarantee of equal protection to laws which make distinctions on the basis of gender or sexual orientation, Mr. Bork makes two interesting pronouncements. The first is about gender. "The general language of the clause, however, continues to subject such cases to the test of whether statutory distinctions are reasonable. Sexual differences obviously make some distinctions reasonable while others have no apparent basis." (p. 150) Now, it might appear that to ban people of one sexual orientation from service in the military without any proof of any negative effects, was, in fact, unreasonable. It might appear very unreasonable to criminalise a particular sexual practice between consenting adults in their own home simply because some people don't like the idea of it. Mr. Bork does not find it so. "Society's treatment of sexual orientation is based upon moral perceptions, so that it would be difficult to say that the various moral balances struck are unreasonable." (p. 150, emphasis added).

Notice how the boundaries shift in this argument. Disparate treatment of women can only be allowed if the distinction is reasonably based on (presumably physical) sexual differences. Mere opinion or prejudice is not enough. Disparate treatment of gays, however, is "based on moral perceptions" and therefore "it would be difficult to say" that they were "unreasonable." He restates this theme in more uncompromising tones in his discussion of the Hardwick case. "[T]he suit was surely brought to seek a declaration that would equate the constitutionality, and hence the presumed morality, of homosexual and heterosexual conduct. Hardwick's suit, in a word, rested upon nothing in the Constitution and so was one more sortie in our cultural war." (p.117)

How does Mr. Bork know that discrimination against gays is a matter of (unreviewable and a-rational) morality while any discrimination against women is subject to the test of reason? The supporters of apartheid and those who believe that a woman's place is in the home, both argue that any other state of affairs is "unnatural" and "immoral." Does Mr. Bork have the master grid which identifies those issues that are legitimately moral decisions and those which are merely irrational prejudices? Some conservatives are attracted to this kind of neo-Platonism, but not Mr. Bork. The answer, I think, is that an issue is a "moral" one if it has been traditionally seen as one by the majority of people in the society. I can see no other distinction which will allow Mr. Bork to make discrimination against gays, but not women, a matter of "morality."⁽⁸⁶⁾

One point which could be made here is that Mr. Bork's constitutional philosophy is by no means as changeless and neutral as he would like to make out. He rails against liberals for modifying the constitution according to changing moral sentiments, yet he himself adopts a method of interpreting its provisions which will produce different results according to changing sentiments about which issues are moral ones. Mr. Bork appears to be just as blind to this contradiction as he was when he complained that the confirmation hearings applied a political litmus test of judicial method, and then advocated just such a test himself. But there are more interesting things here than merely another chance to point out the internal incoherence of Mr. Bork's argument.

There is a worthwhile canon of academic debate, to which Mr. Bork apparently does not subscribe⁽⁸⁷⁾, that a critic should deal not only with the best argument that an opponent offers, but the best argument that could be offered. As have already seen, the arguments that Mr. Bork offers in this book are unlikely to prosper in any more critical environment than that offered by daytime television. But buried in this hodge-podge of contradictory moral and interpretive theories, lies a real argument -- one rooted in the apparently contradictory ideas about morality which I have just discussed. Mr. Bork does not make this argument -- although he uses fragments of it -- but perhaps he should.

I started this section pointing out that Mr. Bork often strays far from the two core premises of post-Enlightenment liberal thought about social institutions. The first premise is that social institutions should be held up to the test of reason, and those which cannot be rationally justified should perish. The second is that morals are subjective and relative and not subject to rational proof or disproof.⁽⁸⁸⁾ From the second premise, or sometimes from the conjunction of both premises, is deduced a corollary: since no one has a privileged insight into the moral universe, the state should be neutral among conceptions of the good. In his discussion of sex discrimination, homosexuality, moral legislation and correct judicial method Mr. Bork oscillates between criticising and relying on these liberal premises. He talks like a relativist one moment, and then like one who has The Truth. He criticises liberals for imposing their ideas of judicial method and then argues for the same result himself. He takes the liberal premises about relative values and draws from it the conclusion that the judges cannot force the state to be neutral among conceptions of the good -- because that would be the imposition of a particular conception of the good! He tells judges that they should wear their critical rationalist hats in reviewing laws which burden women, but their deferential relativist hats when they are reviewing laws burdening homosexuals.

I would say that it is in his fragmentary critiques⁽⁸⁹⁾ of rationalism and relativism that Mr. Bork is at his strongest and it is these that I propose to develop. In doing so, I feel I am attempting to be fair to the heritage of conservative thought of which Mr. Bork is an inconstant representative. I say this because there is a noble tradition of conservative attacks on rationalism, relativism and the other bulwarks of liberalism. Edmund Burke, perhaps the greatest of all conservative thinkers, mounted exactly such an attack. Burke's scattered topical writings resist summary, but his fundamental criticism was of the massive hubris involved in supposedly rational criticisms of social institutions. Scornful of the dogma that all values are relative, Burke argued that all worthwhile values come from the, often unreflective, acceptance of a particular society's traditions. The most telling theme of Burke's writings is his defense of this unreflective acceptance, which he defiantly called "prejudice," against the illusion of reason.

When faced with the reformer's belief in the possibility of rational reform of social institutions, Burke argued that the human ability to foresee was finite whereas the tests to which existing social institutions were subjected were infinite. Simply because an institution, (such as the practice of interpreting the Constitution according to our idea of the original understanding) can be subjected to devastating rational criticism, does not mean that we should abandon it. Whatever its ostensible justification or lack of it, it might now be fulfilling social functions of which we are entirely ignorant. Puffed up with ludicrous pride in the power of reason, we might fiddle with something vital to the structure of our society. Instead, we should put our trust in tradition and "nature." Or, as Burke would put it, "by calling in the aid of [nature's] unerring and powerful instincts, to fortify the fallible and feeble contrivances of our reason, we have derived several other, and those no small benefits from considering our liberties in the light of an inheritance." (Reflections p.121) Thus, traditions which seem contradictory, chaotic and irrational should be embraced and defended against the facile wisdom of those who "[b]y what they call reasoning without prejudice,.. leave not one stone upon another in the fabric of human society. They subvert all the authority which they hold as well as all that which they have destroyed."

This is fine strong stuff. Contemptuous of liberal nostrums on the power of reason, it puts its faith in tradition, prejudice and solid unvociferous opinion. Such a theory could, without contradiction, support the imposition of loyalty oaths to one kind of judicial interpretation -- provided only that it be proved to be traditional. Indeed, such a theory could support the imposition of (more overt) conservative oaths to defend the status quo, should that be necessary. Is Mr. Bork a Burkean? Should he be one?

At first sight, the answer to both questions is "no." After all, Mr. Bork claims to that his constitutional philosophy is objectively correct, that it is neutral in derivation and application and that it does not represent the imposition of a particular set of values onto the Constitutional document. This sounds like exactly the attempt to "reason without prejudice" about social institutions of which Burke was so contemptuous, the attempt that marks each of Mr. Bork's prior legal theories. Yet, as has already been shown, Mr. Bork's arguments for the objective correctness of the theory of original understanding are philosophically bankrupt, historically unfounded, personally inconsistent and practically indeterminate. He would gain much and lose little by jettisoning them. Are the other parts of his theory consonant with Burke's ideas?

Probably the single greatest structural similarity between the ideas of Burke and Mr. Bork, is that both of them resort to a kind of class analysis. Both see themselves as the defenders of a strong but inarticulate tradition against the depredations of an intellectual class drunk on its own wordy theories.⁽⁹⁰⁾ For Burke, it was the impulsive parvenu bourgeois class, with their fancy ideas about reform, their hostility to traditional values and hierarchies, their preference for egalitarianism and their dangerous rationalist societies. He set himself up against "the delusive plausibilities of moral politicians" and his sharpest barbs were always for what he saw as their mindless love of change for change's sake. "A spirit of innovation is generally the result of a selfish temper and confined views. People will not look forward to posterity, who never looked back to their ancestors." (Reflections p. 119.) Against the coming age of liberal rationalists with their reforms, their theories, and their talk of human rights, Burke argued for the spontaneous, organic and above all traditional process of government, a process which might not be explicable in terms of the new categories of the rationalists, but which was valuable nonetheless. "All your sophisters cannot produce any thing better adapted to preserve a rational and manly freedom than the course we have pursued, who have chosen our nature rather than our speculations, our breasts rather than our inventions, for the great conservatories and magazines of our rights and privileges." (Reflections p. 121).

Mr. Bork's villains are the intellectual or knowledge class, but the opinions that class possesses are exactly the pride-filled, questioning and rationalist ones that Burke criticised -- hardly surprising, when one realises that it was Burke's parvenu 18th century bourgeois who developed the ideology that Bork's knowledge class now expounds. Not only are the ideas of the knowledge class marked by the hubris of rational social reform, they are constantly in flux. Sounding a common note with Justice Taney, Mr. Bork decries the idea that changing sentiments could have any effect on constitutional law. "The assumptions and ideas of the intellectual class regularly mutate, which means, to the extent that constitutional law incorporates these assumptions, our fundamental law will shift with fashion." (p. 242) Burke made the same point about the social reformers of his day, even to the comparison with fashion.

The traditions which need to be defended against the knowledge class's delusive pride in the "fallible and feeble contrivances of reason" are not only traditions of governance, but the traditional set of ideas about how people ought to live. Like Burke, Mr. Bork is at his most emphatic when he extols these values. He argues specifically against the liberal vision of the morally neutral state. For him society must be able to legislate its moral values if it is not to "dissolve social bonds." (p. 249) He quotes approvingly Lord Devlin's dictum, "[w]hat makes a society is a community of ideas, not political ideas alone but also ideas about the way its members should govern their lives." (p. 249) Burke would have applauded. The liberal tradition sees civil society as an empty vessel which is filled with the particular values and subjective preferences of its citizens, but does nothing more than contain them. It is precisely this relativist attitude which gives the state its universal status as against any of the particular groups, parties or religions which it contains. To Burke, this idea of a neutral universal state was a delusion. There could be no state, no justice, no understanding even, outside of a particular tradition -- a tradition of governance, law, religion, culture and language. And the most important thing about traditions is that they are not "rational." Thus we should protect the social fabric of our society, from its great institutions of government, to its smallest traditions of personal moral and etiquette, from the rationalist assault.

I think it is important to stress that this reverential and protective attitude to the social mores of their times is more than just an instinctive conservatism, though it may well motivated by just such an instinct. Liberalism conceives of society as a container full of independent actors with different desires and values. Values and desires may change, just as different drinks can be put into the same glass, the society remains. Writing in the tradition of classical republicanism, Burke and Mr. Bork see each society as an expression of a particular set of traditional values and assumptions. To destroy those assumptions is to destroy the society. In fact, Mr. Bork views the possibility of change in social attitudes with such alarm that he seems to support the use of state force to prevent it. "A change in moral environment -- in social attitudes towards sex, marriage, duties towards children and the like -- may surely be felt to be as harmful as the possibility of physical violence