ACKERMAN Bork s Grand Inquisition

8/2/2019 ACKERMAN Bork s Grand Inquisition

1/22

The Yale Law Journal Company, Inc.

Review: Robert Bork's Grand InquisitionAuthor(s): Bruce AckermanSource: The Yale Law Journal, Vol. 99, No. 6 (Apr., 1990), pp. 1419-1439Published by: The Yale Law Journal Company, Inc.Stable URL: http://www.jstor.org/stable/796742 .

Accessed: 29/09/2011 23:15

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of

content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

The Yale Law Journal Company, Inc. is collaborating with JSTOR to digitize, preserve and extend access to

The Yale Law Journal.

http://www.jstor.org
http://www.jstor.org/action/showPublisher?publisherCode=yljhttp://www.jstor.org/stable/796742?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/stable/796742?origin=JSTOR-pdfhttp://www.jstor.org/action/showPublisher?publisherCode=ylj


2/22


3/22

1420 The Yale Law Journal [Vol. 99: 1419make sense of the legally relevant sources,recognizingthat the messagesthey receivemay proveinconsistentwith their personalor politicalmoral-ity. One mark of a greatjudge is the way she confronts his tension:Whenshe finds that the law does not conformto her Utopian vision, does sherecognizethat politicsis one thing, law quite another?Or does she seek todissolve the tension by treating the law as if it were an indeterminatevessel for her political and moral ideals? Bork is also right to suggestthatmuch trendy "theory" runs rough-shodover these distinctions.And yet, judging from Bork's performance,the time isn't ripe for aGreat Crusade.Bork has succumbedto his own temptation. Proclaiminghis fidelity to history,his constitutionalvision is radicallyahistorical.Pro-nouncing an anathemaon value relativism,his jurisprudencebrings skep-ticism to new heights. Insistingon the sharpest possible line between lawand politics,his bitter concluding section transformsa legal treatise into aRed-baiting3politicaltract.Temptingreveals that Bork's ordealhas trans-formedhim into a human type that I, at least, had previouslyencounteredonly in Dostoyevsky novels. Mutatis mutandis, he is America's GrandInquisitor-grimly excommunicatingheretics in the name of a Cause hehas inwardly betrayed.4The Inquisition proceedson three fronts. The first Part exposes thehereticalopinionsof the Supreme Court, tracing the judicial diseaseto itshistorical roots. The second Part confronts and confutesthe leading here-tics of the modernacademy. The final Part turns to Washington, D.C.,and refights the confirmationbattle.It would have been better for all concerned f the last Part had not beenpublished.It is remarkablyopaque about the human side of Bork'sstrug-gle for confirmation, unless there be hidden meaning in his decision torepublish verbatim copies of the letters he and President Reagan ex-changed upon Bork's resignation rom the Court of Appeals."Its brief-likerefutationof the more extreme chargeslevelled by his critics only serves tosave them from oblivionby republishingthem in a bookthat has becomeabest seller. Last and worst, Bork turns this Part into a political tract bylashing out at his opponents without restraint, going so far as to suggestthat they are crypto-Marxists unwilling to come clean in public by ac-

3. I regret the use of such a harsh word, but I can find no other that accurately describes apassage like this one:The new left is probably unprogrammaticbecause it is frustratedby its inability to articulateits natural policy preferences.The new left adopts Marxist critiques of American society be-cause Marxism offers the most fully developed and prestigious adversarial system ready tohand. Yet the new left cannot afford to put forwarda Marxist program. . . The result isthat those who dislike this societyhave only a policy of severe criticism without an alternativeprogram they can articulate.P. 341.4. F. DOSTOYEVSKY, THE BROTHERS KARAMAZOv 255-74 (C. Garnett trans. 1st ed. 1937).5. Pp. 317-20.


4/22

1990] The Grand Inquisitor 1421knowledgingthe nature of their true beliefs.6How could Bork sink to thislevel, after condemninghis opponents for the unprecedented"ferocity"7 ftheirjudicial politics?The less said, the better, about this egregious lapse.In the first two-thirdsof the book, Borkdoes succeed n rising above thefray. His first Part makes it clear that heresy is no monopolyof the War-ren Court. Bork traces it back to 17988 and convincingly establishesthatthere has never been a period in our history when judges have failed tosuccumb to the temptation he denounces. His second Part is similarlybroad based in its critiqueof the modern academy.Not only liberals likeLaurence Tribe' but conservatives ike Richard Epstein10are denouncedfor their heretical views. Indeed, the historical depth and intellectualbreadthof the "temptation"Bork seeks to extirpate might well daunt aless determinedcritic. If the judicial expression of heresy extends back-ward before Marbury v. Madison, and unites such disparate sorts asTribe and Epstein, perhaps it is a mistake to think of it as a "heresy."Why isn't it better to view such an historicallyentrenchedand politicallydiverse theme as part of the main line of American constitutionaldevelopment?

But Bork is prepared to take on all comers: From John Marshall" toWilliam Rehnquist,"2 he heretics are legion. Each victim must be calledto the dock. Each can be condemnedonly after a representative ample ofhis or her error is considered. The overall impression is one of furiousdispatch, as one hapless heretic or heresy is led from the dock, to be re-placed by anotherdestined to meet the same fate a few pages later.13Inthese brief encounters, Bork has more or less interesting things tosay-though it must be tough for his best-seller readershipto guess whyhe is wasting his time with such cartooncharacters.

I. ORTHODOXYMy aim, in any event,will not be to passjudgmenton Bork'streatmentof individualhereticsand heresies. I will focus on an issue that is easilyobscuredin the swirl of particular inquisitions. This is Bork's view oforthodoxy,which is surprisinglyunderdeveloped.Bork is so interestedin

correctingerror that he cannot find room for the systematicdevelopmentof the truth. As we shall see, crucial steps in his affirmativeargument aredeveloped-insofar as they are developedat all-as part of one or another6. See supra note 3.7. P. 338.8. This is the date of Justice Chase's famous opinion in Calder v. Bull, 3 U.S. (3 Dall.) 386(1798). For Bork'sdiscussionof the case, see pp. 19-20.9. Pp. 199-206.10. Pp. 229-30.11. Pp. 25-27.12. P. 240.13. My turn comes at pp. 214-16.


5/22

1422 The Yale Law Journal [Vol. 99: 1419counterpunch. Yet it is plain that none of his particular critiques canstand on ground any higher than his affirmative vision of constitutionallaw.A. Bork and History

Bork'sdifficultiesbegin at the very first step in his argument.Accordingto him, courts are to do no more, but no less, than effectuate the will ofthe Framers-as revealed by reading the constitutionaltext against thebackground provided by "debatesat the conventions, public discussion,newspaper articles, dictionariesin use at the time, and the like."' Theproblem arises when one reflects on the formidable research projectthatBork has assignedhimself. As anyone acquaintedwith the Founding andReconstructionwill attest, Americansaccompanied heir efforts at consti-tution-writing with an enormousoutpouringof public debate.While it isnot impossible to gain a sense of the action and the actors,it does demanda good deal of hard work, requiring years, not days, of disciplinedreadingand reflection.And it is at this point that we are in for a surprise.Despitehis confidentpronouncements bout the intentionsof the Framers,there isabsolutelyno evidence that Robert Bork has done any of the hard workthat would entitle his judgmentsto respect.For starters,this bookfails to cite, much less discuss,the contributionofany seminal twentieth-century nterpretationof the Founding or Recon-struction.'"Bork'signoranceof the secondary iteratureis ecumenical-hefails to cite historians who might support him just as he fails to confrontthose who make his confident udgments seem problematic.'6Perhapsthis

14. P. 144.15. Thus, Bork can speak confidentlyabout the Foundingwithout mentioning (in roughlychron-ological order of their first major contribution):Charles Beard, Forrest MacDonald, Carolyn Rob-bins, Hannah Arendt, Edmund Morgan, BernardBailyn, Gordon Wood, John Pocock,or Joyce Ap-pleby. He talks about "Madisonian"thought without mentioning Douglass Adair, Martin Diamond,or Morton White. He does note Gary Wills' book, Inventing America, dealing with the Declarationof Independence, pp. 235, 397 n.41, but fails to note the existence of Wills' Explaining America,which is more relevant to Bork'spurpose since it deals with Federalist thought.Similarly, he discusses the Civil War Amendmentswithout mentioning the work of Michael LesBenedict, William Brock, David Donald, Eric Foner, Eric McKitrick, Kenneth Stampp, C. VanWoodward,or even William Dunning.The only majorhistorians cited are Eugene Genovese, p. 380 n.21, Robert Fogel and Stanley En-german, p. 380 n.21, and Richard Hofstadter, p. 397 n.4, but not for research into the originalunderstanding hat prevailedat the time of the Founding or Reconstruction.Amongmore conventional egal historians, Bork's pickings are very slim: Charles Fairman is usedonce in dealing with Reconstruction.P. 381 n.40. For the rest, the referencesdeal with Bork'sinter-pretationof particularcases: Don Fehrenbacher s cited once, p. 381 n.31; David Currie, three times.Pp. 380 n.18, 381 nn.26 & 38. LeonardLevy is also cited once, p. 395 n.131, but as a legal theorist,ratherthan legal historian;Raoul Bergeris cited once in support of Bork's exhortation that the Court"Go and sin no more." P. 389 n.39.Bork does rely heavilyon Russell Caplan'shistorical research nto the originsof the Ninth Amend-ment. See pp. 183-85. I shall discuss his treatmentof this problem at length. See infra text accompa-nying notes 37-47.16. Thus, while Bork does mention Raoul Berger with approval twice, see pp. 223, 389 n.39, henever actually uses Berger's voluminouswork, despite the fact that it is congenial to Bork's general


6/22

1990] The Grand Inquisitor 1423ignorancemight be forgiventhe heroic autodidact,who immerseshimselfin the original sourceswithout distortinghis vision by consultingconven-tional authorities.But Robert Bork is no Hugo Black, communingwiththe Founders during long nights at the Library of Congress. His rarereferencesto the original sources are restrictedto old chestnutsserved upby the academictheoristshe condemnsfor their ahistoricalmethods. Hegives no indication, for example, that he has ponderedthe differencesbe-tween James Madison's performanceat the Virginia Ratifying Conven-tion and James Wilson's at Pennsylvania's;or that he has thoughtfullyconsidered he relationshipof Charles Sumner'sSenate speechesto North-ern opinion during the ratificationof the FourteenthAmendment.Indeed,he manages to write a 400-page book in praise of the Framers withouteverfinding it necessaryto cite the standardeditionof Madison's Conven-tion Notes"7or a single page fromthe CongressionalGlobecontainingthedebates of the ReconstructionCongresses.The historical vacuum at the core of Bork's orthodoxymay seem sur-prising, since the man spent much of his life as a professorat Yale andhad the time to engage in the disciplinedhistoricalreflectionthat his or-thodoxy demands. The mystery dissolves when one recalls that Bork'sprincipalacademic specialty was antitrust,not constitutional aw. He didnot win national leadershipin this field by dint of historicalresearch,butby championingthe Chicago Schoolof Economics'notablyahistoricalandtheory-ladenapproach to antitrust. Few readers of Bork's major book,The Antitrust Paradox,'8 would guess that its author would next try toviews.

17. On the only occasionsthat Bork makes use of Madison's Notes, he cites them in the followingway: "P. Bator, P. Mishkin, D. Meltzer & D. Shapiro, Hart and Wechsler'sThe Federal Courtsand the Federal System7 (3d ed. 1988) quoting 1 Farrand, The Recordsof the Federal Convention21 (May 29) (1911)." P. 388 n.18. Bork's next two footnotesalso quote remarksmade by Framers atthe Conventionat second-hand,citing to the same page seven of Hart and Wechsler. Perhaps Borkwas merely saving a bit of time here; perhapshe was allowing Hart and Wechsler to do his researchfor him. In any event, at no other point does he find it necessary to cite the standard edition ofMadison's Notes, edited by Max Farrand,even indirectly.18. R. BORK, THE ANTITRUST PARADOX:A POLICY AT WAR WITH ITSELF (1978). Paradoxaddresses the historical intentionsof the Framers of the Sherman Act at 19-21, 61-66. This brieftreatmentsummarizesan earlier study, Bork,Legislative Intent and the Policy of theSherman Act, 9J. L. & ECON. 7 (1966), that is notable for its anachronistic reatmentof the congressionaldebates.Rather than tryingto relatethe Sherman Act to the politicalmovementsand regnantideas of the latenineteenthcentury,Bork comes to the materialswith the concernsof the twentieth-centuryChicagoeconomist,aiming to persuade us that "Congress intended the courts to implement . . . only thatvalue we would today call consumer welfare."Id. at 7. By saying this, Bork would have us under-standthat the innumerablecongressionalexpressionsof "concern or farmers, laborers,or small busi-nessmen," d. at 26, were strictlysubordinate o the Framers' fundamentalconcernfor consumers.Itis but a short step from this finding to the happy conclusion that the Framers would have beenadmirers of the ChicagoSchool's approach to antitrustif they had been fortunateenough to witnessthe great progressof macroeconomic nalysis that has occurredsince the passageof the Act.Unfortunately,Bork's readingof the legislativehistoryhas not stood the test of scholarly scrutiny.See Hovenkamp,Antitrust's ProtectedClasses, 88 MICH. L. REV. 1, 22 (1989) ("Not a single state-ment in the legislative historycomes close to statingthe conclusionsthat Borkdrew."); Lande, WealthTransfersas the Original and Primary Concern of Antitrust: The EfficiencyInterpretationChal-lenged, 34 HASTINGS L.J. 67, 150 (1982). Hovenkamp'sarticle includes a useful appendix summa-


7/22

1424 The Yale Law Journal [Vol. 99: 1419make a name for himself by championingthe use of historical methodsagainst the seductions of abstracttheory.19Indeed, one question left un-resolved in Tempting is the extent to which Bork himself is aware of thetensionbetweenthe ostentatiously heoreticalmethodsof Paradox and theputativelyhistorical concernsof Tempting.20In any event, this is not the aspect of his Yale experience that Borkbringsto the centerhere. He emphasizesinstead his friendshipwith Alex-ander Bickel and their collaborationon a joint seminar in advancedcon-stitutional law during his time at Yale. As a student in this seminar in1967, I too rememberthe collaborators'obvious respect and affectionforone another. It was one of the things that made the seminar so special.Another thing was the polar positions taken by Bickel and Bork in theclassroom.Against Bickel'sprudentialisthistoricism,Bork counteredwithan aggressivelyahistoricaladvocacyof Lochner v. New York,claiming inone memorablesessionthat it was "indistinguishable"'"rom (the recentlydecided) Griswold v. Connecticut and praising both decisions. In 1967,Bork was the paradigm of the heresy that he now seeks to eradicate. Iremembermy surprise on learning, a few years later, of Bork'sconversionto a more Bickellianappreciationof history. But it is one thing to praisehistory; another to do it. By the time of his conversion,Bork's career wasmoving beyond New Haven to Washington, D.C. This book contains noevidencethat he has found the time, in his last two eventfuldecades,to dothe serious historical work his orthodoxy requires.22Since leaving therizing all congressionalefforts to definethe aims of the ShermanAct, therebypermittingthe readertomake a preliminary assessment of the interpretiveissues at stake between Bork and his critics.Hovenkamp,supra, at 41-48.Bork'shistoricaltreatmentof the enactmentof the Clayton and Robertson-PatmanActs in Paradoxis even more superficial.See R. BORK,supra, at 47-48. In contrast, he treats the earlyjudicial deci-sions with a good deal more sympathy. His aim, however, is once again anachronistic: o establishsome kind of historicalpedigree for a Chicago critique of the doctrinalheresies committedby morecontemporaryudges. See id. at 22-47, 73-79.If we abstract rom the very differentcontents of Paradox and Tempting,then, a certainsimilarityin methodappears: A poorly developed,and anachronistically onceived,historical accountis used tosupporta frontal assault on judicial doctrine in the name of Bork's highly contentiousview of thenatureof economic and political life.

19. In contrast to its anachronistictreatment of the original intentions of the Framers of theShermanAct, see R. BORK,supra note 18, at 19-21, 61-66, Paradox devotesthree chapterselaborat-ing and defendingthe relevance of the Chicago version of neoclassical price theory, id. at 90-133,beforedevotingthe rest of the book to a scathingcritique of all judicial doctrinesthat departfrom theChicagoorthodoxy.20. Bork'spassingremarkson antitrust in Tempting suggestthat, in this area at least, he remainsa true believer in the powers of abstracttheory to master legal reality. See p. 255.21. A view he still holds. See pp. 99, 224-25.22. Indeed,Bork'spreface to The AntitrustParadox suggeststhat he devoted much of his scarceacademic time and energy in the 1970's to completing "at long last" this major scholarly projectin1978. See R. BORK,supra note 18, at ix-xi. This understandableand admirabledetermination o dothe work necessaryto complete The Antitrust Paradox makes the failure to do the necessaryworkhere more understandable-since, after 1978, Bork was even more deeply involved in public affairsthan before.


8/22

1990] The Grand Inquisitor 1425bench, he has cast off the constraints of the judge without acceptingthedisciplinesof the scholar.B. Clause-BoundInterpretation

Bork'sfailure as an historiangets him into trouble as soon as he startsdevelopinghis affirmativecreed. While he holds many historically ques-tionable beliefs about the Founding Federalists and the ReconstructionRepublicans,one stands out above all others. Botk believes that the Fram-ers of the Bill of Rights and the Civil War Amendments had fixed andrelativelyconcreteobjectives n mind. These are to be understoodby look-ing at each clause they left us as if it were a free-standingartifact. Inreadingthe establishmentclause, we are to look at evidenceof what con-cretethings the Framers meant to accomplishby enactingthat clause;andso on, down the list of clauses, taking our time with the most importantones like due processand equal protection.Once she has filled each clause with its concretehistorical content, ajudge can then proceed with the businessof judicial review. Her job, sim-ply put, is to measure the challenged statute against each of the histori-cally defined clauses: If it violates any of the Framers' particularobjec-tives in enacting any particular clause, then it is unconstitutional;if,however, she cannotpoint to a particularclause, she must let the legisla-tive judgment stand and resist the "temptation" o impose her subjectivewill on the body politic.In taking this "clause-bound"view of constitutional interpretation,Bork is careful to avoid easy caricature as a latter-day partisan ofmechanical urisprudence.In particular,he recognizesthat there is muchroom for reasonedjudgment and good-faith disagreement n determiningwhether a modernstatute falls within the proscribedzones of Framer in-tention.23He draws his line between orthodoxyand heresy at the pointwhere the judge moves beyond the original understandingof one or an-other particularclause.So much for a summarystatementof the Borkianorthodoxy. In assess-ing its distinctivecharacter,consider how it diverges from the interpretivepath most lawyers follow in dealingwith all othercomplex texts. No goodtax lawyer, for example, would ever think of reading the Internal Reve-nue Code one clause at a time, in the manner Bork recommends.While,of course, the text of each particular clause is always important,a goodlawyer cannot fix its meaning without construingit in the light of princi-ples that make sense of the larger Code of which it is a part. In attempt-ing this familiar kind of holistic interpretation, he readertries to under-standthe text as somethingmore than an odd assortmentof particularized

23. See pp. 162-63, 167-69, 218.


9/22

1426 The Yale Law Journal [Vol. 99: 1419commands.She tries to organize the rules in terms of principlesthat givethe rules an intelligible order, working from particularclauses to moregeneral principlesuntil she reaches reflectiveequilibrium.It is this holistic exercise that Bork would have us rejectin construingthe Constitution-at least when it comes to interpretingthe natureof ourfundamentalrights. I addthis caveatbecause Borkdoes not have a similaranimus againstholism when it comesto other aspectsof the Constitution.For example, he has never had any trouble treating the "separationofpowers"as a fundamentalprincipleeven though there is no separationofpowers clause in our basic text. Though the principlesdefining the sepa-ration of powers can only be found amongstthe "penumbras"and "ema-nations" of Articles One, Two, and Three, Bork seems untroubledby theneed for holistic interpretation n finding solid constitutionalground forhis very extreme understandingof this structuralprinciple." He drawsthe line, however,when it comesto rights. Thus, Justice Douglas' famouseffort, in Griswold,to establish a constitutionalprinciple of privacy by aholisticreadingof the Bill of Rights is, for Bork, the very pons asinorumof judicial heresy.2"Similarly,holisticreadingsproposedby John Ely andmyself are displayedamongstthe academic heresies of our time.26In re-pudiating such heresies,Bork makes it clear that he is not quibblingwithone or another effort at holistic interpretation.He wants to rejectthe veryidea of moving beyond "clause-bound" nterpretivism n a holistic man-ner.27 n interpreting he nature of our constitutional reedoms,we shouldbe emulatingthe interpretivepracticeof the worst kind of tax lawyer:onewho zeroes in on "the applicable" subsectionwithout reflecting on thepurposesof the sentences,paragraphs,and larger textual structureswithinwhich it is imbedded.

24. See, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 799 (D.C. Cir. 1984) (Bork, J.,concurring),where Bork is "guidedchiefly by separationof powersprinciples, which caution courtstoavoid potentialinterferencewith the political branches'conductof foreign relations."In deferring tothe political branches, Bork does not point to narrow text or particular history in the manner of aclause-boundinterpretivist; nstead, the opinion presents a holistic understandingof separation ofpowers that explores its relationshipto the political question doctrine (another odd favorite for aclause-bound extualist).Id. at 801-06. Whatever one may think of Bork's conclusionin this case, itdemonstrates his willingness to engage in the kind of holistic reasoning that he condemns in thedefinitionof fundamentalrights. It is possiblethat, as an appellatejudge, Bork felt himself boundbySupremeCourtopinions that express a holistic understandingof the separationof powers. Certainly,he skillfully uses these cases to supporthis holistic arguments.The general tone of the opinion, how-ever, does not suggesta grudging acceptance,but an eager embrace,of the holistic approachto separa-tion of powers and political questionsexpressed in the leading Supreme Court opinions. I have beenunable to find any text, however, where Bork seriously reflectson the tension between his generaliz-ing interpretationof governmentpowers and his narrowing interpretationof individualfreedoms.Seegenerally Nomination of Robert H. Bork to Be AssociateJustice of the Supreme Court of the UnitedStates, 1987: Hearings Before the Senate Comm.on the Judiciary, 100th Cong., 1st. Sess., pt. 3, at1313-41 (1987) (statement of Cass R. Sunstein, Professor of Law, University of Chicago LawSchool).25. Pp. 95-100. 1 defend Griswold as a legitimate act of holistic interpretationin Ackerman,ConstitutionalPolitics/Constitutional Law, 99 YALE L.J. 453, 536-44 (1989).26. Pp. 194-99, 214-16.27. See pp. 178-85.


10/22

1990] The Grand Inquisitor 1427Bad tax law makes even worse constitutional aw. For obvious reasons,the Code tries to be precise and detailed.Holism is requiredprincipallyto

avoid losing sight of the forest as one seeks to clear a path through thestatutoryunderbrush. In contrast, both the Bill of Rights and the CivilWar Amendmentscontain sub-sectionswhich cannot be interpretedat allwithout reflecting on the fundamentalprinciples expressed by the largerconstitutionalwhole. In writing the Fourteenth Amendment,the Recon-struction Republicans demanded the constitutional protectionof "privi-'leges or immunities of citizens of the United States" without giving anyfurther content to this formula. No matter how long one stares as thissub-section, it will remain meaningless. How, then, to give meaning tothis clause if we are forbidden,on pain of heresy, to engage in a holisticinterpretationof the implications of the general themes established else-where in the text? The Founding Federalists prove no more cooperativewhen recruitedinto Bork's crusade. In drafting the Ninth Amendment,they explicitly warned that "the enumeration in the Constitution,of cer-tain rights, shall not be construedto deny or disparage others retainedbythe people." Given such explicit textual instruction, Bork's orthodoxythreatens to dissolve in internal contradiction:The Framers seem to beexplicitlyrepudiating he very orthodoxythat Bork would imposeon us inthe name of the Framers.In taking aim at the internal contradictionat the heart of Bork'sortho-doxy, I am by no means making a new contributionto the subject.AsBorkis well aware, John Ely remindedus of the problemten years ago inhis book, Democracyand- Distrust.28How, then, does Bork cope withEly's challenge?

II. THE TRUTH ABOUT THE FRAMERSOn one level, Borkresponds n an admirablyforthrightway. He identi-fies Ely's problem as the principalintellectualstumbling blockon the pathto orthodoxy.2"He does not try to trivialize the problem by relying on thefact thatjudges have failed to give much content to the Ninth Amendment

and the privilegesor immunities clause. Since Bork spends much of hisbookdenouncing udges fromMarshall to Rehnquist for ignoringthe "ob-vious" meaning of many other clauses, he does not hide behind the judi-cial peripheralization of the texts that most seriously embarrass his"clause-bound"orthodoxy. Instead, he rightly concludes that "we mustexamine Ely's evidencewith some care. 30 In the pages that follow, Bork28. J. ELY, DEMOCRACY AND DISTRUST 11-41 (1980).29. Indeed,with characteristicunderstatement,he describes t as "theonly kindof claim . . . thatmakes any possible sense." P. 179.30. P. 179.


11/22

1428 The Yale Law Journal [Vol. 99: 1419confronts Ely's evidence and seeks to establishthat the Framers intendedus to be clause-bound, after all. How "care[fulI"a job has he done?A. The Privileges or ImmunitiesClause

Begin with Bork's treatmentof the FourteenthAmendment'sprivilegesor immunities clause. He recognizes that leading Republicans explicitlyand repeatedlyrelied on Corfieldv. Coryell'sdefinitionof "privilegesandimmunities''31 to give content to their proposed constitutional formula.Here is the famous definitionprovidedby Justice Washingtonin the case:We feel no hesitation in confining these expressions to those privi-leges and immunities which are, in their nature, fundamen-tal . . . They may, however, be all comprehended under the fol-lowing general heads: Protection by the government; he enjoymentof life and liberty, with the right to acquire and possess propertyofevery kind, and to pursue and obtain happiness andsafety . . . . The right of a citizen of one state to pass through, orto residein any otherstate, for purposesof trade,agriculture,profes-sional pursuits, or otherwise; to claim the benefit of the writ ofhabeas corpus;to institute and maintain actions of any kind in thecourtsof the state; to take, hold and dispose of property,either realor personal;and an exemption from higher taxes or impositionsthanare paid by the other citizens of the state; may be mentioned as someof the particular privileges and immunities of citizens, which areclearly embraced by the general description of privilegesdeemed tobe fundamental:to which may be added, the elective franchise, asregulated and established by the laws or constitution of the state inwhich it is to be exercised. These, and many others which might bementioned, [emphasis added] are, strictly speaking, privileges andimmunities, and the enjoymentof them by the citizens of each state,in every other state, was manifestly calculated (to use the expressionsof the preamble of the correspondingprovision in the old articles ofconfederation)"the better to secure and perpetuate mutual friend-ship and intercourseamong the people of the different states of theUnion."32

Given his stated principles, one would expect Bork to pause on thistext. As he repeatedly nsists, it is not his job to second-guess he Framers.If they said that Justice Washington had the right idea about the meaningof "privilegesand immunities," this should serve as an important sourcefor Bork's own reflections. Unfortunately, Bork does not even reprint31. 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,230). Washington is giving substanceto the "privi-leges and immunities" clause in section two of Article Four of the original Constitution.The Four-

teenth Amendmentspeaks in terms of "privileges or immunities"(emphasis added). I do not thinkanything importantturns on this change in the connective.32. Corfield,6 F. Cas. at 551-52.


12/22

1990] The Grand Inquisitor 1429Washington'stext for the reader'sinspection. Instead, he condemns it inabsentia:

It is true that RepresentativeBingham and Senator Howard, whointroducedthe fourteenthamendmentin their respectiveHouses ofCongress,referred o Corfield . Coryell, singularlyconfusedopin-ion in 1823 by a single Justice of the SupremeCourt setting out hisideas of what the original privilegesand immunitiesclause of articleIV of the Constitutionmeant. Most people have always thoughtthatthe article IV clause simply prevented a state from discriminatingagainstout-of-staters n favor of their own citizens,but Corfieldistsrightsalreadysecuredby the Constitutionagainstadversefederal ac-tion and goes on to suggest a numberof others.Bingham and Howard meant these additional rights. That the ra-tifiers did is far less clear. But even the full list of rights set out byone Justice in Corfield s something far different from a judicialpower to createunmentionedrights by an unspecified method. Cer-tainly there is no evidence that the ratifying conventions intendedany such power in judges, and it is their intent, not the drafters', hatcounts. Nor is it easy to imagine that Northern states, victorious n aCivil War that led to the fourteenthamendment, should have de-cided to turn over to federal courts not only the protectionof therights of freed slaves but an unlimitedpower to frustrate the will ofthe Northern states themselves.33The passage makes a hash of Bork's protestations of originalism.Rather than tryingto understandWashington'sdefinition,he calls it "sin-gularlyconfused."Then, he belittles it by calling it a "list of rights set out

by one Justice in Corfield"-before concedingthat leading Framers, likeBinghamand Howard, explicitly adoptedWashington'smeaning as theirown. Perhaps to allay his originalist conscience, Bork then reassures usthat Washington's ist is "somethingfar different from a judicial power tocreateunmentionedrights."What to make, then, of Washington'sexplicitreminderthat "manyother[]"rights "might be mentioned" n additiontothose enumerated n his exceptionallybroad-ranging ist? Insteadof mis-representing Corfield,shouldn't a dispassionate originalist provide hisreaderswith the text so that they could puzzle over its troublingimplica-tions together?Not that Bork succumbs to temptationall that easily. After concedingthat Bingham and Howard did clarify their intentionsby citing Washing-ton's dictum, he tries to impugn these Framersby refusing to "imagine"that these leading Republicans were representativeof larger currentsofNorthern public opinion. Bork chooses his words carefully here: "imag-ine" specifies his precise relationship to nineteenth-century historical

33. P. 181.


13/22

1430 The Yale Law Journal [Vol. 99: 1419sources. He does not mention, let alone grapple with, important booksthat attempt to place the views of Bingham and Howard in the main-streamof Republican constitutionalthought then currentthroughouttheNorth.34To make matters worse, Bork concludes his argument, in thepassage immediately following the one I have quoted, by denying thatthere is a "shredof evidence"5 that the Republicanmajorityintendedtouse the courts to enforce their understandingof privileges and immuni-ties-without even citing a classicmonographdealingwith evidenceof theReconstruction Republicans' complex love-hate relationship to thecourts."6B. The Ninth Amendment

Perhaps we should be grateful, then, that Bork tries to decipher theNinth Amendment without an independent examination of extrinsicsources.Stickingto the text, he reports that it "statessimply, if enigmati-cally, that '[t]he enumerationin the Constitution,of certain rights, shallnot be construedto deny or disparage others retained by the people.'"87The puzzle here is why Bork should find the text "enigmatic." Itseems, almostpreternaturally,o be writtenwith him in mind. What Borkis up to is precisely o use "the enumeration n the Constitution,of certainrights"to "disparage" he idea that there are other constitutionalrights offundamentalimportance.I especially admire the Framers' choice of theword "disparage." can think of no better word to describeBork'sgeneraltone. Nonetheless, Bork finds the text enigmatic and yearns for greaterclarity:Nothing could be clearer,however, than that, whateverpurposetheninth amendmentwas intended to serve, the creation of a mandate toinventconstitutionalrights was not one of them. The language of theamendment tself contradicts hat notion. It states that the enumera-tion of somerights shall not be construed o deny or disparageothersretainedby the people. Surely, if a mandate to judges had been in-tended, matters could have been put more clearly. James Madison,who wrote the amendments,and who wrote with absolute clarityelsewhere,had he meant to put a freehand power concerning rightsin the handsof judges, could easily have drafted an amendmentthatsaid something ike "The courts shall determinewhat rights,in addi-tion to those enumeratedhere, are retainedby the people,"or "Thecourts shall create new rights as required by the principles of the

34. The best place to start, I think, is M. CURTIS, No STATE SHALL ABRIDGE:THE FOUR-TEENTHAMENDMENTAND THE BILL OF RIGHTS (1986). Important aspects of the larger context ofRepublican constitutional thought are provided by W. NELSON, THE FOURTEENTHAMENDMENT(1988), and J. TENBROEK,EQUAL UNDER LAW (rev. ed. 1965).35. P. 181.

36. S. KUTLER, JUDICIAL POWER AND RECONSTRUCTION POLITICS (1968).37. P. 183 (quoting U.S. CONST. mend. IX).


14/22

1990] The Grand Inquisitor 1431republicanform of government,"or "The American people, believ-ing in a law of nature and a law of nature's God, delegate to theircourts the task of determiningwhat rights, other than those enumer-ated here, are retainedby the people."Madison wrote none of thosethings, and the conventionsratified none of them.36It is, of course, an old lawyer's trick to create uncertaintyby writinghypothetical texts that, in the writer's mind, do a better job than theFramers'. Bork, however, does not seem to recognizethat what the Fram-ers wrote is stronger,not weaker, than the texts he considers as replace-

ments. His hypothetical "clarifications"would narrowly address thecourts and explain to them that they should not "disparage"unenumer-ated rights.In contrast, he Ninth Amendmentspeaksto all interpretersofthe Constitution,presidentsno less than courts,citizensno less than legis-lators,and expresslycautionsall of them against committingthe interpre-tive blunder that Bork would impose in the name of the Framers.Bork is quite right to note that the Ninth Amendment does not ex-presslyauthorize courtsto invalidatestatutes.But, then again, nobodyhas

ever suggestedthat the Ninth Amendmentprovidedan independenttex-tual support for judicial review. If any are to be found, they are to befound elsewhere. While Borknever does identifythe particularclausethatexplicitly authorizesjudicial review, it is quite unfair to fasten this defi-ciencyon the Framersof the Ninth Amendment.It is he, not the Framers,who has never faced up to the implicationsof the fact that the Constitu-tion containsno judicial review clause that remotelypasses Bork'sexplic-itness test.3 Despite this fact, Bork endorses udicial review-so long as itoccurson his terms, not those of the Framers of the Ninth Amendment.Finding its commandpeculiarly"enigmatic,"he managesto write a wholebook on the theme that "the enumerationin the Constitution,of certainrights, shall )(t be construedto deny or disparage others retainedby thepeople."The seriousness with which the Founding generationtook these wordsmay be inferred from the fact that the Ninth is the only constitutionalamendment aimed at proscribingan interpretivetechnique;all the otherparts of the Bill of Rights are concernedwith substantiveor institutional

38. P. 183.39. Bork is critical of Marbury v. Madison, pp. 22-25, finding its redeeming feature only inMarshall's decision to place "the Court'spowerto declarelaws unconstitutionaldirectlyupon the factthat the United States has a written Constitution."P. 24. But, as Alexander Bickel explained longago, the mere existence of a written constitution does not entail judicial review. See A. BICKEL, THELEAST DANGEROUS BRANCH 3 (1962). Bork neither questions this piece of Bickellian wisdom norsupplies the more explicit textual argumentsthat he generally requires to satisfy his clause-boundconscience.Instead,he allows his doubts aboutthe foundationsof judicial review to surfaceselectively,as in his discussionof the Ninth Amendment,pp. 183-85, to discredituses of judicial review that donot meet with his approval.


15/22

1432 The Yale Law Journal [Vol. 99: 1419matters.40Of all the disputes in constitutional aw, this seems a poor oneto choose for purposes of drawing the line between orthodoxy and her-esy-especially when the Grand Inquisitor himself admits that the text is"enigmatic."Why should he issue an interdictagainst the benightedsoulswho find holy writ clear enough in its warning against the "disparage-ment" of unenumeratedrights?Sensing some weakness perhaps, Bork is not content to propoundtheSphinx-like riddle he has made of the Ninth Amendment. He next pro-videsthe definitivesolution to his textual predicament-without, however,doing any original research,or even attemptingto canvassthe substantialsecondary iterature.41 Apparently, an essay by Russell Caplan42 owersover the field-though, truth to say, it is rather equivocallydescribed:

One suggestion,advancedby Russell Caplan and supportedby somehistoricalevidence, is that the people retainedcertain rights becausethey were guaranteedby the variousstate constitutions,statutes,andcommonlaw. [emphasis added] Thus, the enumeration of certainrights in the federal Constitutionwas not to be taken to mean thatthe rights promisedby the state constitutions and laws were to bedenied or disparaged.This meaning is not only grammaticallycorrect, it also fits theplacementof the ninth amendment ust before the tenth and after theeight substantiveguarantees of rights.43Bork'sendorsementof Caplan's hypothesis as "grammaticallycorrect"is curious. The Amendmentspeaks in negativeterms:Do not "disparage"unenumeratedrights. It is silent about what to do next: Any affirmativemethod that seeks to elaborate the content of unenumerated rights is"grammaticallyconsistent" with its command. Even more curious isBork'snote of triumphwhen he recognizes that the Amendment protectsrightsguaranteedby the "common aw." For this concedeswhat Borkhastried so hard to deny: The Ninth Amendmentproscribesthe disparage-ment of judge-made rights.Bork thinks he has removedthe sting only becausehe unquestioninglyacceptsanother,and far more controversial,aspectof Caplan'sargument.

40. The EleventhAmendmentalso takes the form of an interpretivecanon ratherthan a substan-tive command,but here the Framers'concernwith canons of interpretation s obviouslysecondarytothe protectionof a particularinstitutionalvalue: federalism.41. Some of these contributionswere certainlyhard to overlook.How could Bork have failed tonoticeCharlesBlack'sHolmes Lectures on the subject at the HarvardLaw School? C. BLACK, DECI-SIONACCORDINGTO LAW (1981). I do not agree with some of the premises that inform Black's on-going confrontationwith the Ninth Amendment.See, e.g., Black,FurtherReflectionson the Constitu-tionalJustice of Livelihood, 86 COLUM.L. REV. 1103 (1986). Nonetheless, I think an encounter withhis work is absolutely vital for reachinga judgmentworth having. Disagreeingwith CharlesBlack isan education in itself.42. Caplan, The Historyand Meaning of the Ninth Amendment, 69 VA. L. REV. 223 (1983).43. P. 184 (footnoteomitted).


16/22

1990] The Grand Inquisitor 1433On Caplan's view, the Ninth Amendmentdoes not require interpreters oconstrue the Constitution as protecting unenumerated"rights of the peo-ple." Instead, it merely remits the protectionof these rights to the stategovernments,which could modify or alter them at will. While Bork fol-lows Caplan here, he does make the very point that should give himpause: "the placement of the ninth amendment ust before the tenth." Ifwe follow Bork's suggestion,and read the two amendmentstogether,wewill find that Caplan's readinghas reduced the Ninth Amendment nto apointlessly redundant repetition of the Tenth. After all, the TenthAmendmentalready contains abundant reassurance o the states that theymay use their reservedpowers to protector revise any individual rightsthat have not otherwise been guaranteed by the Federal Constitution:"The powers not delegatedto the United States by the Constitution,norprohibitedby it to the States, are reservedto the States respectively,or tothe people."" Given this reassuranceof continuing state power in Ten,surely Nine means to do more than make the same point one more time.If anything, reading Nine and Ten together only raises further suspi-cions about the Caplan-Bork reading. Notice that Ten is not strictly a"states rights" provision,but carefully distinguishesbetween the powers"reservedto the States" and those "reserved. . . to the people." Thus,Ten hardly suggests that the unenumeratedrights "of the people" recog-nized by Nine can be manipulated at will by the states-any more thanthat they can be "disparaged"by the National Government." Caplan andBork, however,turn a blind eye to the textual emphasison the protectionof unenumeratedrights in both the Ninth and the Tenth Amendments.Instead, they are willing to distort the meaning of the Tenth if this willallow them to render the Ninth a dead letter.

44. U.S. CONST. mend. X.45. While Caplan briefly notes the redundancyproblem,see Caplan, supra note 42, at 263-64,he does not solve it. He claims that the Ninth "preservesrights existing under state laws already'onthe books'in 1791 plus those rightswhich the states would thereafter see fit to enact. The Tenth, bycontrast, permits the states, by virtue of the powers delegatedto them by the people, to continue toexercise their allocated functions."Id. (footnotesomitted).Quite frankly, I have troubleunderstandingwhy Caplan believes his commentarysaves the NinthAmendmentfrom redundancy.The best I can do is to read Caplan as suggesting that the TenthAmendment ooks only to the future, while the Ninth Amendmentlooks to the past and guaranteesindividual"rights existing under state laws already'on the books.'" But if this is what Caplan has inmind, it seems very unpersuasive.The Tenth Amendmentdoes not, as Caplan suggests, affirmatively"allocate"functionsto the states;it "reserves"powers to the states that they already possessedandhad not given up. Thus, there was no need for the Ninth Amendmentto reassure the states that the"laws alreadyon the books" were not to be casually impugned.For the Tenth's reservationon"ac-complishedthis purpose.It is even less clear why Caplan supposesthat the Tenth Amendmentwas inadequatefor reassur-ing the states that they were free to act in the future to protect "those rights which [they] wouldthereaftersee fit to enact."Caplan'sbelief that Nine was necessaryfor this purpose only emphasizeshow profoundlyhe has misconstruedTen's recognitionof the reservationon"of lawmaking power tothe states. In any other context, I am sure that Robert Bork would never endorse a position thatsupposes,as Caplan's does, that the Tenth Amendmentaffirmatively granted the states lawmakingpower, rather than explicitly recognizingthat the states possessed reservedpowers that preexistedtheFederal Constitution.


17/22

1434 The Yale Law Journal [Vol. 99: 1419But assume, for purposes of argument, that Caplan is correct:perhapsit was one of the purposesof the Ninth Amendment,as well as the Tenth,

to reassurecitizens that the fundamentalrights guaranteedthem by statelaw had not been modified by implication. Even then, Bork has not yetgottenwhere he wants to go. So far as he is concerned, t is not enoughtogrant the states unfettered control over fundamental,but unenumerated,rights. He insists, no less imperatively,on allowing the National Govern-ment a similarpower over individual freedom.It is, however,one thing tosay that the Ninth Amendmentaims to reassurethe states; quite another,to assert that this was its only objective.Whatever its impacton state law,an Amendment o the National Constitutionthat explicitly warns againstdisparagingng" undamentalrights speaks, first and foremost,to the dan-ger that the National Governmentmight use its formidable powers toendanger those freedoms.Since, as Bork explicitly recognizes, the Founders associatedthese fun-damental freedoms with the judge-made tradition of the common law,46the speed with which he dismisses the Ninth Amendment s breathtaking.Within a page of the passageI have quoted,we find him announcingthat,despite the commands of the Ninth and Fourteenth Amendments,"[iutmust be concludedthat clause-bound nterpretationof the Constitutionispossible."47

III. ENLIGHTENMENT?Why does Bork take such "care" to deny the alternative hypothesis:that the Founding Federalists and Reconstruction Republicans imposed

not one but two kinds of limitation on constitutional government?First,they enumerated certain fundamental rights. Second, their text explicitlywarns us that their list is partial and that we must complete it holistically,by elaborating the fundamental principles of individual liberty that theFounders and Reconstructers had sought to codify with only partialsuccess.It is possible, of course, that Bork has worn his erudition very lightlyindeed and that he has much more historical insight than appears in thiswork. If this be true, I urge him to write another book to correctfalseimpressions.Tempting suggests that he has fallen victim to the very dis-ease he seeks to diagnose: his ceaseless disparagingng"of unenumerated,but fundamental,rights has no deeper rootsthan his own personalphilos-ophy. According o him, once a judge movesbeyond the enumeratedrightslisted in the Constitution, "he is at once adrift on an uncertain sea ofmoral argument."" More radically: "The truth is that the judge who

46. See p. 184, quoted in text accompanyingnote 43.47. P. 18548. P. 252.


18/22

1990] The Grand Inquisitor 1435looks outside the historic Constitution [of enumeratedrights] always looksinside himself and nowhere else."49

While this is a possible view, it is odd to see it in a bookdenouncing hemoral relativism and subjectivism rampant amongst the heretics. Thereare many otherviews, including the one espousedby Bork's favorite mod-ern philosopher,Alasdair MacIntyre. Bork misreads MacIntyre in thefollowing passage:The state of affairs in moral theory is summedup, accurately so faras I can tell, by AlasdairMacIntyre.After canvassing the failure ofa succession of thinkers to justify particular systems of morality,MacIntyre says that if all that were involved was the failure of asuccessionof particulararguments,"it might appearthat the troublewas merely that Kierkegaard,Kant, Diderot, Hume, Smith and theirother contemporarieswere not adroit enough in constructing argu-ments, so that an appropriate strategywould be to wait until somemore powerfulmind applieditself to the problems.Andjust this hasbeen the strategyof the academicphilosophicalworld, even thoughmany professionalphilosophersmight be a little embarrassed o ad-mit it."Though the names of the players in the legal academicworld haverather less resonance than the names on McIntyre's [sic] list, thesituation is the same in the world of law school moral philosophy.Infact, that is one of the most entertaining aspectsof this doomeden-terprise.Each of the moral-constitutional heorists finds the theoriesof all the othersdeficient-and each is correct,all the others,as wellas his own, are deficient.60Actually,MacIntyreis makinga narrower and different claim than theone Borkimputes to him. MacIntyre does not believethat all philosophersfail; even less does he subscribeto Bork's view of moral argumentas "anuncertainsea" that can be charted only by each judge "look[ing]insidehimself and nowhere else." MacIntyre conceives the West as constitutedby a set of rival traditions-Classical, Christian, and that Johnny-come-lately springing out of the Enlightenment.Rather than looking inward,our task is to locate ourselves in one of these disparatetraditions. It is at

this stage in the argumentthat MacIntyre casts his scornful eye on theEnlightenment radition he associates with Kant, Diderot, Hume and therest. He believes that the Enlightenment,and only the Enlightenment,generatesthe moral chaos that Bork describes; t is preciselyfor this rea-son that he urges us to rejectthe Enlightenmentfor one of the sounderWestern traditions.It is not surprising to see MacIntyre making this move-unremitting49. P. 242.50. P. 254 (quoting A. MACINTYRE, AFTER VIRTUE 51 (2d ed. 1984)).


19/22

1436 The Yale Law Journal [Vol. 99: 1419hostility to the Liberal Enlightenmenthas been one of the few organizingthemes in a philosophical career that has seen him embrace humanistMarxism in the 1960's before turning more recently to Catholicism asmankind'sbest hope againstthe moral chaos of modernity.6" hings standdifferentlyfor Robert Bork, self-proclaimedDefender of the Faith of theFounding Fathers. Surely Madison, Washington, and the rest would besurprised to learn that their Grand Inquisitor joins MacIntyre in de-nouncing the Enlightenmentagainst those "heretics" in the law schoolswho aren't quite convinced.While Bork quotes extensivelyfrom MacIntyre'sAfter Virtue,he doesnot seem to have read the more recent WhoseJustice? Which Rational-ity?.62Here MacIntyre is even more explicit in recognizingthat Enlight-enment Liberalism has transformed tself into an ongoing tradition of po-litical discourse and practice. Moreover, since MacIntyre takes thedistinctionbetween orthodoxy and heresy with Borkian seriousness,it isinterestingto note how his view of the Enlightenment Cathedral differs:

[T]he contributionsof the greatest names in the foundation of liber-alism, Kant, Jefferson, and Mill, have been continuedby such dis-tinguishedcontemporariesas Hart, Rawls, Gewirth, Nozick, Dwor-kin, and Ackerman. The continuing inconclusivenessof the debatesto which they have contributed s of course also one more tributetothe necessary inconclusivenessof modern academicphilosophy.What has become clear, however, is that gradually less and lessimportancehas been attachedto arriving at substantive conclusionsand more and more to continuingthe debate for its own sake....[Increasingly] he mark of a liberal order is to refer its conflicts fortheir resolution,not to those [philosophical]debates, but to the ver-dicts of its legal system. The lawyers, not the philosophers,are theclergy of liberalism.63I do not take much comfort in appearing at the end of MacIntyre'sironiclist of "distinguished" pigones to a traditionhe considersbankrupt.But at least he is not surprised to discover that there are some legal aca-demics in Americawho haven'tgiven up the ghost of the Enlightenment.Bork, in contrast,thinks it would be healthier if the "semiskilled moralphilosophers"64 f the law schools "simply dropped this line of workaltogether."66

51. CompareA. MACINTYRE, MARXISM AND CHRISTIANITY 116 (1968) ("Marxist project re-mains the only one we have for reestablishinghope as a social virtue") with A. MACINTYRE, WHOSEJUSTICE? WHICH RATIONALITY? 403 (1988) (expressing hope in enriched Thomistic-Augustinianunderstandingof Christianity).52. A. MACINTYRE, WHOSE JUSTICE? WHICH RATIONALITY? (1988). At least Bork does notcite the book.53. Id. at 344.54. P. 254.55. P. 255.


20/22

1990] The Grand Inquisitor 1437Given the Constitution'shistoricroots in Enlightenmentthought, Borkis an odd Defender of the Faith to make this demand.A traditionlike the

Enlightenmentcannot survivewithout a continuingdebate over its basicpresuppositions.Do they still make sense? How to respondto the count-less efforts at critique from Hegel through Unger? We cannot expectLocke or Kant or Mill to answer these questions for us. They would bethe first to urge us to think for ourselves,using their ideas only when theyseem sensible.When Bork announces his "firmintention to give up read-ing this literature,"5 he is excommunicatinghimself from the very tradi-tion that seeks to keep the spirit of Madison alive in America's lawschools.Bork's inner estrangement romthe Enlightenmentalso lies at the heartof his assault on the Supreme Court. It prevents him from recognizingwhat is so obvious to Maclntyre: American law is one of the principalhistoricalachievementsof the Enlightenment. It is in Americancourts, ifanywhere, that one should expect people to take the Enlightenment'sproud hopes for individual freedomas something more than empty andabstractrhetoric. It is in these courts, if anywhere, that one might findlawyers andjudges who understand hemselvesas part of an ongoing tra-dition of constitutionalargumentaimed at realizingin practicethe kind ofindividualliberty the Enlightenmentonly dreamt about. Indeed, it is pre-cisely AlasdairMacIntyre'semphasison the constituting powers of tradi-tion that might have providedBork with an alternative to his grim viewthat a judge who movesbeyondthe enumeratedrightsmust "always look[]inside himself and nowhere else"57for inspiration. Perhaps the Justiceshave not been looking inward, but outward. Rather than searching intothe hidden recesses of their arbitrary subjectivities,perhaps they havebeen seekingto interpretthe ongoingconstitutionalmeaning of the Ameri-can traditionof individual liberty-as it was first expressed by the En-lightenment Founders and then transformedthrough the constitutionalpolitics of later generations of Americans.There is only one way to test this hypothesis. And that is to readjudi-cial opinions from Marshall to Rehnquist in a spirit very different fromthe Grand Inquisitor's.Rather than hunting for heresy,our aim must becharityin interpretation.58We must try to see how it might have seemedsensibleto judges in differenteras to view the principlesof constitutionalliberty expressed at the Founding and Reconstructionquite differentlyfrom the way we do today. The more deeply we can understandtheireffortsto make sense of the Constitution,the more deeply we will come tounderstandhow we might best continue its traditionsof liberty under to-

56. P. 255.57. P. 242.58. D. DAVIDSON, INQUIRIES INTO TRUTH AND INTERPRETATION 136-37, 152-53 (1984).


21/22

1438 The Yale Law Journal [Vol. 99: 1419day's conditions.In pursuing charityin interpretation,we might find thateven Taney has somethingto teach us in Dred Scott-if nothingelse thanthat we may well have needed a Civil War before the American Peoplecould begin to confrontthe evils of slavery.Though the languagesof con-stitutional liberty have shifted over time from property and contract toprivacy and equal opportunity,we should be trying to glimpse the deepercontinuities, as well as the obvious differences,in the judicial interpreta-tion of the meaning of the Founding and Reconstruction.59Only in thelast resort should we follow Bork and condemn as heretical recurringthemes that have emerged time after time over the centuries-long udicialeffort to make sense of the tradition-especially when that theme is indi-vidual freedom.

It is here, alas, where BorkapproachesDostoyevskyandimension:Likethe Grand Inquisitor,his quarrel is with the very idea that our traditionexpresses a deep and abiding faith in human freedom.In contrast to theDostoyevskyanoriginal, however, Bork does not try to reveal the inner-most depths of his quarrel with human freedom,the ultimate sourcesofhis grim determinationto cut up our constitutional text into such smallpieces that the Framers' larger commitment to individual liberty is ren-dered invisible.Despite his efforts at self-revelation n the final Part, Borkdoes not succeed in presentingmore than a portraitof the Inquisitoras heappears in public: "an old man, almost ninety, tall and erect, with awithered face and sunkeneyes, in which there is still a gleam of light."80The "gleam of light":let me emphasizethat I agree with Robert Borkon one big point. Reading and writingjudicial opinions is not like readingand writing political philosophy. If philosophy is any good at all, it isindividual, speculative, undogmatic. The Supreme Court, in contrast,speaksin the collectivename of the People; it interprets the People's pastachievementsand does not try to speculateabout the unknowable future;it announcesdogmaswhich may lead some to the electricchair, others tofreedom.

In assessing udicial performance, hen, it is a categorymistake to eval-uate Supreme Court opinions in terms of the philosophicalconclusionsreachedby Kant or Mill or the lesser lights of the Enlightenment. In-stead, we should be focusing our attention in the direction Bork pointsus-to the constitutional hought and practice of people like Madison andLincoln. It is Americans like these, not Kant or Mill, who gained theconstitutionalauthority, after years of political struggle, to speak in thename of We the People of the United States. While these successfulspokesmenfor the People were deeply influenced by European thought,

59. For a preliminary effort along these lines, see Ackerman, supra note 25, at 486-547.60. F. DOSTOYEVSKY,upra note 4, at 258.


22/22

1990] The Grand Inquisitor 1439their distinctivelanguage of constitutionalfreedom can only be learnedfrom them directly.

This is why Bork's failure to come to grips with the history of theFounding and Reconstruction s, in the end, a more serious failing thanhis philosophicalestrangementfrom the Enlightenment'scommitmenttoindividualfreedom-though doubtless they go hand in hand.IV. TEMPTATION

Once we allow Bork to read his personalphilosophyinto the Constitu-tion, Tempting becomestempting. If we cast our philosophicallot withBorkand MacIntyreagainstthe Enlightenment,we canjoin ranks in holywar against those benightedjudges who continue to believe that the En-lightenment tradition of American freedom representsa system of "or-deredliberty" capableof rationalinterpretation.After all, so long as Borkconvincesus to abandon this Enlightenmentproject, I suppose his nextstep makes a certaindespairingsense. If the Founding traditionfloats onan "uncertainsea" of moralisms,the very most we can retrievefrom theFramers is the odd assortmentof wilful commands hey happenedto havecodifiedin one or another textual formula. As for the rest, it's all poli-tics-best left to our elected politicians.Though he describes this approachas "Madisonian,"8l t does not re-semble anything Madison would find familiar. Madison did not believethat the Enlightenmentwas bankrupt.Madison did not believe that theFounding generationhad handed down a set of ipse dixits floating on asea of chaos. He believedthat the Constitutionmade sense in terms of aset of rational principlesof liberty that providedthe frameworkfor theinterpretationof its particularprovisions." Bork does not believethis, andtempts us to follow him.Will we?

61. Unfortunately, however, he elaborates the fundamental principles of Madisonianism in athree-page chapter,whose only citation is to a letter from Lord Acton quoted in a book by GertrudeHimmelfarb. Pp. 139-41. At no other point does Bork present a systematicreading of Madison'sthought, either as it appearsin the Federalist Papersor elsewhere in Madison'svoluminouscollectedworks.62. See M. WHITE, PHILOSOPHY, THE FEDERALIST AND THE CONSTITUTION 13-25, 175-92,208-28 (1987); G. WILLS, EXPLAINING AMERICA: THE FEDERALIST 95-248 (1981); Diamond, Eth-ics and Politics: The American Way, in THE MORAL FOUNDATIONS OF THE AMERICAN REPUBLIC75 (R. Horwitz 3d ed. 1976); Kahn,Reason and Will in the Originsof American Constitutionalism,98 YALE L.J. 449, 453-73 (1989). For my own interpretationof Madisonianthought,see Ackerman,

Date post:	06-Apr-2018
Category:	Documents
Upload:	fernando
View:	236 times
Download:	0 times

ACKERMAN Bork s Grand Inquisition

Documents