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Authors: Robert H. Bork
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defendant, the taxpayer, and the patentee would lose, as would a great deal of criminal law enforcement. Politics was a sure guide to outcomes; law was not.
The current Supreme Court is different. It is no longer devoted to economic equality. On subjects like antitrust and taxes, the meat and potatoes topics of the law, this Court is lawyerlike, highly skilled, and politically neutral. The Court no longer displays socialist tendencies in such areas. When a cultural or lifestyle issue is raised in a constitutional context, however, the approach changes: one bloc of four moves invariably to the cultural left and usually picks up at least a fifth vote, to drive the law in that direction. The victories for the jurisprudential conservatives tend to be narrow and defensive. They sometimes manage to keep the law from moving further left – for the time being – but do not restore the law as it was before liberal activism wrought its changes. What we call conservatism on the Court is usually a mere holding action; the liberals set the agenda and the conservatives resist, but rarely roll back prior liberal rulings or advance any agenda of their own. The result is a steady movement, occasionally delayed for the moment, of the Constitution to the cultural left.
The Illegitimacy of Judicial Activism
Judicial activism – the ordering of results not supported by any reasonable interpretation of the Constitution – may be rampant, but it is completely insupportable. Numerous attempts at justification have been made by academic lawyers and by left-wing activist groups such as the American Civil Liberties Union and, more recently, by heated statements from leaders of the American Bar Association. That swing should not be surprising. Some people will always rally around a center of power, particularly if it is the center most accessible to them and it produces the results they want. They are what the Canadian analysts F.L. Morton and Rainer Knopff refer to in their country as the “Court Party.”
The defenses of activism are, despite their pedigree, remarkably simplistic. Departures from the actual Constitution are justified on several grounds: we are so far removed from the framers that the words they used either cannot be understood or have little relevance to us today; there is no reason why the present generation should be governed by men long dead; and we have a “living Constitution” that must be kept abreast of our evolving morality. None of these justifications has any merit whatever.
If it were true that we cannot understand the meaning of the Constitution, the only conclusion that follows is that judges should not exercise any power of judicial review. There would then be no basis for any statement that a statute did not comport with the Constitution, which, according to this argument, is incomprehensible.The judge who nevertheless finds a statute invalid has no basis for that conclusion – unless his unsupported preferences are sufficient. Nobody takes the argument that far. In any event, it is not true that the Constitution has no meaning available to us. Aside from the words of the text, there are the records of the Philadelphia Convention, the state ratifying conventions, and the voluminous written exchanges between the Federalists who favored adoption and the anti-Federalists who opposed it.
As to the second contention, we are not governed by men long dead unless we desire to shrink or abandon the liberties they specified in the
Bill of Rights
. If we want additional liberties, that may be accomplished by constitutional amendment or by statute. Nothing in the Constitution prevents today’s citizens from enacting statutes that specify additional liberties. Most of our guaranteed freedoms are statutory rather than constitutional. One need think only of the statutes governing civil rights, nondiscrimination, labor relations, the rights of the disabled, and so on, to see that point.
The “living Constitution”
The current Supreme Court is different. It is no longer devoted to economic equality. On subjects like antitrust and taxes, the meat and potatoes topics of the law, this Court is lawyerlike, highly skilled, and politically neutral. The Court no longer displays socialist tendencies in such areas. When a cultural or lifestyle issue is raised in a constitutional context, however, the approach changes: one bloc of four moves invariably to the cultural left and usually picks up at least a fifth vote, to drive the law in that direction. The victories for the jurisprudential conservatives tend to be narrow and defensive. They sometimes manage to keep the law from moving further left – for the time being – but do not restore the law as it was before liberal activism wrought its changes. What we call conservatism on the Court is usually a mere holding action; the liberals set the agenda and the conservatives resist, but rarely roll back prior liberal rulings or advance any agenda of their own. The result is a steady movement, occasionally delayed for the moment, of the Constitution to the cultural left.
The Illegitimacy of Judicial Activism
Judicial activism – the ordering of results not supported by any reasonable interpretation of the Constitution – may be rampant, but it is completely insupportable. Numerous attempts at justification have been made by academic lawyers and by left-wing activist groups such as the American Civil Liberties Union and, more recently, by heated statements from leaders of the American Bar Association. That swing should not be surprising. Some people will always rally around a center of power, particularly if it is the center most accessible to them and it produces the results they want. They are what the Canadian analysts F.L. Morton and Rainer Knopff refer to in their country as the “Court Party.”
The defenses of activism are, despite their pedigree, remarkably simplistic. Departures from the actual Constitution are justified on several grounds: we are so far removed from the framers that the words they used either cannot be understood or have little relevance to us today; there is no reason why the present generation should be governed by men long dead; and we have a “living Constitution” that must be kept abreast of our evolving morality. None of these justifications has any merit whatever.
If it were true that we cannot understand the meaning of the Constitution, the only conclusion that follows is that judges should not exercise any power of judicial review. There would then be no basis for any statement that a statute did not comport with the Constitution, which, according to this argument, is incomprehensible.The judge who nevertheless finds a statute invalid has no basis for that conclusion – unless his unsupported preferences are sufficient. Nobody takes the argument that far. In any event, it is not true that the Constitution has no meaning available to us. Aside from the words of the text, there are the records of the Philadelphia Convention, the state ratifying conventions, and the voluminous written exchanges between the Federalists who favored adoption and the anti-Federalists who opposed it.
As to the second contention, we are not governed by men long dead unless we desire to shrink or abandon the liberties they specified in the
Bill of Rights
. If we want additional liberties, that may be accomplished by constitutional amendment or by statute. Nothing in the Constitution prevents today’s citizens from enacting statutes that specify additional liberties. Most of our guaranteed freedoms are statutory rather than constitutional. One need think only of the statutes governing civil rights, nondiscrimination, labor relations, the rights of the disabled, and so on, to see that point.
The “living Constitution”
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