The closing of the conservative mind.

THE CLOSING OF THE CONSERVATIVE MIND

IT IS DIFFICULT to remember when conservatives have been so nearly unanimous in according a book something approaching a neoscriptural status, as they have been with respect to Judge Robert H. Bork's The Tempting of America: The Political Seduction of the Law. The December 8, 1989, NATIONAL REVIEW featured as its main cover article, "The Case against Political Judging," together with a second smaller excerpt, entitled "Why Do the Liberals Rage?" One can summarize the two articles together by saying that the liberals rage because Judge Bork says that judges should, when ruling as judges, stick to the law--including the law of the Constitution. He thinks--or so he says--that judges should not substitute their opinions of what the law of the Constitution ought to be. It is emphatically their job--whether they like the results or not--to say what the law is.

The liberals assert, however that there is nothing but ambiguity and uncertainty in many key phrases of the Constitution (e.g., "general welfare," "due process," or "equal protection"). No one really knows what they "originally" meant, and even if one did know, one could find little guidance in applying them in present-day circumstances. They insist, therefore, that there is no alternative but to say what the Constitution ought to mean, here and now, rather than what it might have meant, when it was framed and ratified. The favorite liberal posture is to call for a "living Constitution," freed from the "dead hand" of the past, adapting itself to new circumstances through the "creative" interpretations by judges sensitive to the needs of society.

In point of fact, Judge Bork replies, these judges, by discovering judicial remedies for what different interest groups claim to be "injuries," but which are really problems of society at large, are usurping powers proper to the political branches of government, and subverting the right of the people to be governed by their elected representatives.

Judge Bork has indeed presented his case against liberal jurisprudence cogently and passionately. He has convinced his conservative followers--and up to a point he has convinced me--that it is unanswerable. He has, moreover, convinced his followers that the campaign of vicious misrepresentation against him--especially during the fight over his nomination to the Supreme Court--is owing mainly if not solely to the fact that his opponents cannot meet him on the ground of the argument. That argument, in a nutshell, is that judicial activism is usurpation, denying to the political processes of democracy their rightful role in governance. His disciples believe--quite rightly--that the American public, by and large, still thinks that the function of judges is to interpret the law, not invent it. His critics on the Left supported their war against him by appealing to highly organized and highly motivated interest groups--especially advocates of group rights (especially those of race, color, and sex) which are not recognized by the Constitution--as opposed to the rights of individuals, which are. These critics blinded the public to the nature of their attack, by declaring Judge Bork to be "out of the mainstream." His votaries are confident that the public would have been mightily indignant at his critics had they known the real character of the attack upon him.

That Judge Bork was treated ill by his critics on the Left may certainly be granted. But the March 8, 1988, NATIONAL REVIEW carried an article by the present writer entitled "Judge Bork's Mistake." In it I accepted everything Judge Bork had said about the necessity and desirability of a constitutional jurisprudence of "original intent." But I denied that what Bork had called "original intent" was "original intent." I referred my readers to a monograph I had published in the University of Puget Sound Law Review, Spring 1987, entitled, "What Were the 'Original Intentions' of the Framers of the Constitution of the United States?" where I argued that a genuine jurisprudence of "original intent" with respect to the Constitution would have to recognize the principles of the Declaration of Independence as the principles of the Constitution.

A Necessary Distinction

THE CONSTITUTION, as every beginning student knows, is a bundle of compromises. There is no way, from the text of the Constitution alone, that one can distinguish those provisions which are consistent with its principles, and which implement those principles, (e.g., the provisions for the election of Congress and President), from those that are compromises with those same principles (e.g., the security given to property in human chattels).

This distinction between the principles of the Constitution and its compromises is one Judge Bork has studiously ignored. His critics have exploited the fact to persuade the general public--not without reason--that Judge Bork really has no principles. That judges should be neutral interpreters of the law is one thing: but to say that the law itself is essentially neutral--that is is mere process without purpose--is another. Judge Bork's position can be well summarized by saying that he rejects, root and branch, the following resolutions of the Republican Party Platform of 1860, upon which Abraham Lincoln was elected President of the United States:

Resolved, that the maintenance of the principles promulgated in the Declaration of Independence and embodied in the Federal Constitution, "That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed," is essential to the preservation of our Republican institution.

Judge Bork's book begins with a discussion of the 1798 case of Calder v. Bull, in which Justice Samuel Chase, in a concurring opinion, had appealed to "the great first principles of the social compact" (which meant the principles of the Declaration of Independence), as possible grounds for judicial limitation of legislative power. According to Bork, here was the first time that a Justice of the Supreme Court would "cast covetous glances at the apple that would eventually cause the fall."

But what Chase had to say about the "social compact" was not different from what James Madison said on countless occasions. It was not different from what Chief Justice Marshall would say in 1819, in the case of Ogden v. Saunders. Commenting upon Article I, Section 10, of the Constitution, which declares that no state shall "pass any law impairing the obligation of contracts," Marshall said:

These words seems to us to import that the obligation is intrinsic, that it is created by the contract itself, not that it is dependent on the laws made to enforce it. When we advert to the course of reading generally pursued by American statesmen in early life, we must suppose that the Framers of our Constitution were intimately acquainted with the writings of those wise and learned men, whose treatises on the law of nature and nations have guided public opinion on the subjects of obligation and contract. If we turn to those treatises, we find them to concur in the declaration taht contracts possess an original intrinsic obligation, derived from the acts of free agents and not given by government.

Later in the same opinion, Marshall spoke of how the excesses of the state legislatures, before the adoption of the Constitution, had caused "mischief . . . so great [and] so alarming, as not only to impair commercial intercourse . . . but to sap the morals of the people and destroy the sanctity of the private faith." A major purpose of the Constitution, said Marshall, was "to guard against the continuance of [this] evil." It would do this by imposing "restraints on state legislation." And Marshall left no room for doubt that it was a proper function of the Court to impose such restraints.

It cannot be emphasized too strongly, not only that Marshall (unlike Bork) believed in "an original intrinsic obligation . . . not given by government" as the ground of some of the most important provisions of the Constitution, but that he believed that this belief informed the understanding of the framers and of the public opinion that ratified their work. A jurisprudence of original intent would then of necessity have been--in decisive respects--a jurisprudence of natural law or natural right. Judge Bork is of course perfectly free to reject natural law and natural right--as he does do--but he cannot consistently call his rejection of original intent, original intent. He cannot have it both ways.

The Old Bork

JUDGE BORK did not always think about original intent as he does now. In "The Supreme Court Needs a New Philosophy," published in Fortune of December 1968, he wrote:

A desire for some legitimate form of judicial activism is inherent in a tradition that runs strong and deep in our culture, a tradition that can be called "Madisonian." We continue to believe there are some things no majority should be allowed to do to us, no matter how democtratically it may decide to do them. A Madisonian system assumes that in wide areas of life a legislative majority is entitled to rule for no better reason than that it is a majority. But it also assumes there are some aspects of life a majority should not control, that 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. In the popular understanding upon which the power of the Supreme Court rests, it is precisely the function of the Court to resolve this dilemma by giving content to the concept of natural rights in case-by-case interpretation of the Constitution.

Bork's notion of a "Madisonian system" here is less than perfect since, according to Madison, there is never an area of life in which "a legislative majority is entitled to rule for no better reason than that it is a majority." No aphorism is more characteristically Madisonian than that "all power in just and free government is derived from compact." And, as Madison wrote in his famous essay on "Sovereignty," a majority may do only those things "that could be rightfully done by the unanimous concurrence of the members." The word "rightfully," underscored by Madison himself, emphasizes the fact that a natural moral law underlies and undergirds all the constitutionalism of original intent. According to Madison, in the same essay, "the reserved rights of individuals (of conscience, for example) in becoming parties to the original compact [are] beyond the reach of sovereignty, wherever vested or however viewed." This means--in flat opposition to the Bork of today--that the free exercise of religion is a constitutional right, whether or not it is written into the Constitution. In the "Madisonian system" (as in that of John Marshall) the understanding of the nature of "the original compact" is the key to all constitutional interpretation.

However imperfect Bork's understanding of "the Madisonian system" in 1968, we venture to say that, had he enunciated it at his hearings, he would almost certainly have been confirmed as a justice of the Supreme Court. I am the more persuaded of this because in the same article he wrote:

Legitimate [judicial] activism requires, first of all, a warrant for the Court to move beyond the limited range of substantive rights that can be derived from traditional sources of constitutional law. The case for locating this warrant in the long-ignored Ninth amendment was persuasively argued by Justice Arthur J. Goldberg in a concurring opinion in Griswold v. Connecticut.

In Judge Bork's new book, there is a chapter entitled "The Madisonian Dilemma and the Need for Constitutional Theory." What had been called the "Madisonian system" in 1968 is now called the "Madisonian Dilemma." And the "concept of natural rights" disappears altogether from his discussion. In short, the "system" became a "dilemma" when natural rights--that is to say, genuine original intent--disappeared. The dilemma however is Bork's, not Madison's.

The New Bork

THE BORK OF 1990 no longer recognizes the possibility of a "legitimate form of judicial activism." All judicial activism is now seen as the fruit of original sin. The principal vehicle for such activism, according to Bork, has been "the concept of 'substantive due process.'" And, says Bork, substantive due process was introduced into constitutional jurisprudence by Chief Justice Taney, in his opinion for the Court in the case of Dred Scott (1857). Bork's accusation that Taney gratuitously invented the doctrine of substantive due process is the linchpin of the entire argument of his book.

Dred Scott sued for his freedom in the slave state o Missouri, where he had returned after having been taken by his master to live in the Minnesota Territory, in which slavery had been prohibited by the Missouri Compromise of 1820. Scott claimed his freedom on the grounds that he had been taken by his master to reside (he was not a runaway), and had resided, in a federal territory. But Taney's opinion declared that the 1820 legislation had been unconstitutional because Congress had no lawful power to deprive a slaveowner of his property. To do so, would violate the Fifth Amendment's prohibition against depriving a person of his property "without due process of law."

According to Bork, however, "The definition of what is, or is not property would seem, at least as an original matter, a question for legislatures. How then [Bork asks] can there be a constitutional right to own slaves where a statute forbids it?" According to Bork, Taney's "transformation of the due process clause [of the Fifth Amendment]"

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

Bork says that "Taney was determined to prove that the right of property in slaves was guaranteed by the Constitution." He quotes Taney saying that no one would presume that Congress could make any law in a territory--for example, establishing a religion--that it is forbidden to make by the First Amendment. "All well and good," Bork comments, adding, however, that "there is no similar constitutional provision that can be read with any semblance of plausibility to confer a right to own slaves."

Bork repeats this even more emphatically when he asks, "How did Taney know that slave ownership was a constitutional right? Such a right is nowhere to be found in the Constitution. He knew it because he was passionately convinced that it must be in the Constitution." [Emphasis is

Bork's.] Well, the answer is that, although the Constitution does not "confer" a right to own slaves, it assuredly recognizes such a right. Moreover, it recognizes that right as arising from the action not of judges but o legislatures. Here is the text of Article IV, Section 2, paragraph 3. "No person held to service of labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." This is the fugitive slave clause. The original Constitution never uses the words "slave" or "slavery," preferring euphemisms in their place. Article I speaks of "adding to the whole number of free persons . . . three-fifths of all other persons." Can it be doubted that the "other persons" are unfree, that is, slaves? Or that their slavery is regarded by the Constitution as lawful? But the Constitution, in Article IV, not only recognizes the lawfulness of the right to own slaves--a lawfulness arising from the actions of the legislatures of the slave states--but it pledges the full power of the Federal Government to making that right secure. The phrase "shall be delivered up" is categorical, and implies an obligation on Congress to pass enabling legislation, if such should be necessary. So far as I know, no one, in two hundred years, has ever made the fantastic assertion that Bork makes, that the right to slave ownership "is nowhere to be found in the [original] Constitution." In short, it was not Taney who read the right to slave ownership into the Constitution; it is Judge Bork who has read it out of the Constitution.

Right Method, Wrong Answer

IT IS CLEAR moreover--from Article IV--that Taney did not form his opinion in Dred Scott on the basis of the due-process clause of the Fifth Amendment alone. The substantive element also rested in part on Article I, Section 9, in which it is said that "The migration or importation of such persons as any of the states now existing shall think fit to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight." This clause is an exception made to the power granted to Congress in Section 8 "to regulate commerce with foreign nations," as well as that "to establish a uniform rule of naturalization." No one has ever doubted that, however ponderous the euphemism, Congress was prohibited thereby from interfering--for twenty years--with the buying of slaves on the west coast of Africa, where they could be obtained much more cheaply than in any of the states. Taney held--not unreasonably--that this concession to business profit was evidenced of a "right to traffic" in slave property as "an ordinary article of merchandise and property." If one puts together--as Taney did--the substantive and substantial consideration given by the Constitution in these several places to the profit and security of slave property and the slave trade, it was not unreasonable for him to conclude that it was unconstitutional to deprive a person of such valuable considerations merely because he took them with him into a United States territory. Or, to be more precise, it was not unreasonable for him to conclude as he did, if one draws one's inferences concerning the intent of the Constitution from the texas of the Constitution alone, in the manner commended by Judge Bork.

What then was wrong with Taney's opinion in Dred Scott? Let us recall that in all the places in the Constitution in which slaves are referred to euphemistically, they are called "persons." And we must recall that in the Fifth Amendment the Constitution says that "no person shall . . . be depricde of life, librarty, or propperty, without due process held up."

Now the persons held to service or labor in Article IV (like those imported under Article I, Section 9) were so held (or imported) not as person but as chattels. But a people is possessed of a rational will. Any a chattel is a piece of movable property without a rational will. Under the law of slavery slaves were alwways regarded as human persons for some purposes--e.g., by being held responsible for their actions under the criminal law--while at the same time they were regarded as chattels, mere extesions of their master's will, like a horse or a dog or an ox. Hence they could not make contracts, for which reason there was no legal marriage among them.

That the law of slavery at once regarded the slaves as persons and as chattels was what made slavery indeed a "peculiar institution." In the slave states themselves, the characters of a chattel always took precedence over the characters of the person. But what happened when he was taken to territory? Why would the positive law of slavery follow him? Looking within the four quarters of the text of the Constitution, Taney inferred that Negroes (whether free or slave) were regarded by the Framers as "beings of an inferior order . . . and so far inferior, that they had no rights which white men were bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit."

These are the decisive words in Taney's opinion--ignored by Bork. They justified Taney, in his own mind, in deciding that when the master took his slave into a territory, the master was the "person" who could not be lawfully deprived of his property. But Lincoln and the Republican Party, looking to the words, of the Declaration of Independence, said that the slave was equally a human person with the master. Under "the laws of nature and of nature's God" the right to liberty took precendence of the right to property. This was because underlying the positive law of property was the natural right--the natural liberty--of every human being to own himself.

The case of Dred Scott can only be understood if one realizes that in it the chatteldom of slavery and the personhood of the slave have come into uncompromising contradiction. That contradiction can be resolved only by recourse to the principles of natural right and natural law, as embodied in the Declaration of Independence. (This was also the ground of the right of contract, reference to by John Marshall.) For this purpose, Judge Borks cnception of "original intent" is perfectly useless. But if it is useless here, it is useless everywhere: for the reason that in this case the distinction between the compromises of the Constitution and the principles of the Constitution is brought into sharper focus than anywhere else. It is because the Civil War amendments (to which one might add the Nineteenth) have eliminated the most evident contradictions between the Constitution and its principles, that the question of what tose principles are, you become more obscure. Year the meaning of the fourteenth Amendment, and in particular the meaning of its "due process" and "equal protection" clauses, depend in the highest degree upon the correct understanding of where Taney went wrong in Dred Scott. And of that Judge Bork Appears not to have an inkling.

Mr. Joffa is Henry Salvatori Research Professor of Political Philosophy at claremont-McKenna College and Claremont Graduate School.