ROBERT'S RULES OF ORDER: A Conversation with Robert Bork

Wednesday, July 16, 2003

There are often said to be two competing schools for interpreting the meaning of the Constitution. On one side are those who believe that the meaning of the Constitution must evolve over time as society itself changes. On the other side are those who insist that the original intent of the framers of the Constitution—what they wrote and what their intent was in writing it—is all that matters. Robert Bork is firmly in the latter school. We asked him to explicate his understanding of the U.S. Constitution, using recent Supreme Court decisions as case studies.

Recorded on Wednesday, July 16, 2003

Peter Robinson: Today on Uncommon Knowledge, Bork on the Court.

Announcer: Funding for this program is provided by the John M. Olin Foundation.

[Music]

Peter Robinson: Welcome to Uncommon Knowledge. I'm Peter Robinson. Our show today: how an originalist understands the Constitution of the United States--a conversation with Robert Bork.

It is often said that there are fundamentally two competing schools for interpreting the United States' Constitution. One school believes that the meaning of the document must be allowed to evolve over time. The other school insists, by contrast, that the only correct way of interpreting the Constitution is according to the original intent of the Framers themselves. Robert Bork, as you'll see, is a champion of the second school.

Robert Bork has taught law at Yale University, served as Solicitor General of the United States and served as a United States Court of Appeals Judge. He was nominated for but not confirmed for the United States Supreme Court. Judge Bork is now a fellow at the American Enterprise Institute.

Title: What Would Jefferson Do?

Peter Robinson: Law Professor Jeffrey Renz: "The Constitution was written in the eighteenth century when blacks and whites were slaves and indentured servants and women were chattel. The first ten amendments were written when information moved only as quickly as the fastest horse on land or the fastest boat in the water." Even if they wished to interpret the Constitution according to original intent or understanding, Renz argues, judges today must have quite a lot of flexibility in doing so. Back to quotation, "That's the rub. Original understanding is not a firm or precise approach." Judge Bork?

Judge Bork: I don't know what the first part of that has to do with the second. Of course, nothing about interpreting the Constitution can be precise. We're dealing with words, we're dealing with principles, and you have to discuss how far the principle reaches, how far it doesn't reach. It's not a mathematical exercise. It's a question of judgment.

Peter Robinson: All right. Go ahead.

Judge Bork: The problems he raises are not problems at all. That is, nothing in there could not be solved by legislation. Constitution doesn't require slavery. Constitution doesn't require that women not have the vote. That was up to the states. So to say that the Constitution is somehow out of date is quite wrong.

Peter Robinson: All right. Couple of problems, putative problems with original understanding. And the first couple of these all fall under the category of we live in a different world. New technology. Fourth Amendment prohibits unreasonable searches and seizures but the Court has used the amendment to place strict limits on electronic surveillance, which, of course, the Framers had no way of foreseeing. Just for this little layman, explain how original understanding gets you from the document to limits on electronic surveillance. What is…

Judge Bork: That's precisely an example I use in my book as a proper use of the Constitution. The reason they had a Fourth Amendment about limiting unreasonable searches and seizures was that they had government intruding upon your privacy in your home or your office and they didn't want that done. When the government no longer had a constable clomping in in heavy boots but managed to get electronic devices, the principle is the same. The government is intruding upon your home or your office. It's a form of a search. There's no problem with that. Just as the First Amendment--they didn't know about electronic communications but they have extended the First Amendment to electronic communications because it is speech. Now I don't think they've extended it far enough but they have come a long way.

Peter Robinson: So there's absolutely no problem. This is not hard work. The new technology doesn't present as many difficult problems?

Judge Bork: No, no, the problem arises when the Court invents a new principle that's not in the Constitution. The application of existing principles, well people can disagree about it but at least we know what we're talking about.

Peter Robinson: Okay--changes in social attitudes. Help explain to me in another instance how you get from the document to the modern world. The Framers lived in a world in which many condoned slavery and although those who drafted the Fourteenth Amendment lived in a world that had just abolished slavery, they took segregation for granted. And yet you have written approvingly of Brown v. the Board of Education of Topeka, Kansas, 1954 case that strikes down segregated schools, proclaiming that separate schools for blacks are inherently unequal, a notion that presumably would have surprised those who wrote the Fourteenth Amendment. No? So how do you work that one out?

Judge Bork: It would have surprised them and it surprises me today to say that they're inherently unequal. What they were unequal about was they weren't treated equally by the government. But let's go back for a second.

Peter Robinson: Right.

Judge Bork: The framers of the Fourteenth Amendment knew that they had segregated public schools. It was a very small public school system but they knew they had segregation so that they wrote a requirement of equality in assuming that separate but equal was equal.

Peter Robinson: Right.

Judge Bork: We then know over a period of 50 or so years that it's never equal. You know that empirically. You keep litigating cases about segregated college and segregated high schools, segregated drinking fountains, on and on and on, golf courses. You keep litigating. Finally you realize that there's never going to be equality under segregation. At that point, you have to choose between what the Framers wrote, which was equal protection of the laws and what they assumed that equality could be achieved with segregation. You have to choose between those. I think it's proper to choose what they wrote and the basic principle of equality rather than their assumption that segregation was consistent with equality.

Peter Robinson: Let me ask how an originalist approaches aspects of the Constitution that are unclear or ambiguous.

Title: Weapons of Much Deduction

Peter Robinson: Second Amendment, a well regulated militia being necessary to the security of a free state, "the right of the people to keep and bear arms shall not be abridged." Now on this very program, we've had historians come on and say, that clearly was intended to give individuals the right to own arms. And we've also had historians come on and say, no, no, no, we've done the research, looked at the documents, the Framers intended only to permit states to raise militias of their own, quite a separate matter from whether individuals have the right to bear arms. Now I, as a layman, can't choose between these historical views. There's at least, in good faith, you've got bright people suggesting there's historical ambiguity. What do you do with that?

Judge Bork: A judge sits down and decides which is the more persuasive evidence. The reason that people are called judges is because it requires a judgment. They're not mathematicians. They can't take a premise and work out inexorably to a result. Scalia and I were on the same court. We both were originalists, believed in the original understanding. Occasionally we would disagree strongly about what that meant. Now that was only in one percent of the cases we sat together on but nevertheless.

Peter Robinson: But still, reasonable people, both attempting very hard to be faithful to the original understanding, can indeed disagree.

Judge Bork: Can disagree. But the important thing is that they stay within the same framework. That is, one thing we could always agree on was that you can't make up new principles and say that they're in the Constitution. We could disagree about the application of existing principles.

Peter Robinson: Okay. And so one of the tools in your toolbox as a judge in original understanding then is historical research?

Judge Bork: Oh sure.

Peter Robinson: That becomes tremendously important. And it would be the case that if new research began to emerge, that over a decade or so suggested that the Framers did want individuals to bear arms or did not…

Judge Bork: Yeah.

Peter Robinson: … the judge would presumably revise his opinions accordingly. You're constantly seeking the best understanding you can get of their understanding. That's the whole method.

Judge Bork: That's the whole method. Unfortunately, we have right now an example of a case where research has just devastated the Supreme Court's historic assumptions. And that's in the religion clause--this is the First Amendment, this business about strict separation of church and state.

Peter Robinson: Right.

Judge Bork: That is nowhere to be found in the history of the First Amendment. In fact, it's quite clear--there's a book by Philip Hamburger called, Separation of Church and State, which is a wonderful book and it's quite clear that the idea of strict separation between church and state was anathema to all religious groups and others at the time. They didn't want the church controlling the state. They didn't want the state controlling religion. But the idea that you, you know, today you can't have…

Peter Robinson: You couldn't put, "So help me God," in an oath or put…

Judge Bork: Yeah.

Peter Robinson: …"In God We Trust" on a coin. That's ridiculous.

Judge Bork: Yeah. Or praying before a football game that nobody gets hurt. That's, you know, an outrage, they say. Now we have the historical evidence the Court is quite wrong. The Court is dead wrong. The question is whether the Court will ever turn around and give way to that historical evidence. I doubt that as long as the present membership of the Court is there that they will.

Peter Robinson: You have just laid out original understanding as a guide that can--it's accessible to us. You can use the historical tools. You can go back, take your best shot at understanding what they understood…

Judge Bork: What the debate said, what the newspaper articles of the time said. The question is, what reasonable men would have understood those words to mean.

Peter Robinson: Right.

Judge Bork: Not a secret intention in the back of somebody's skull at the convention, law is a public act. And the question is what the public would have understood.

Peter Robinson: Let me get Judge Bork's opinion on the Supreme Court's recent decision overturning the Texas Homosexual Sodomy Law and on the decisions that led up to it.

Title: It's the Penumbra, Stupid

Peter Robinson: The Lawrence decision is quite recent, this so-called Texas Sodomy Law in which the Court overturned it. I'd like to get to Lawrence and discuss several of the precedents for Lawrence. Simply go through what the Court has done in this matter and have you give me a laymen's education on what the Court did wrong, should have done, did right. We begin with the house that William O. Douglas built, the house of privacy. Now 1965, Griswold v. Connecticut, the Supreme Court strikes down a Connecticut statute outlawing the use of contraceptives. Justice William O. Douglas writes for the majority, "The foregoing cases," he's just cited some cases, "suggest that specific guarantees in the Bill of Rights have penumbras formed by emanations," you're smiling already, "from those guarantees that help give them life and substance. The right of association contained in the penumbra of the First Amendment is one. The Third Amendment in its prohibition against the quartering of soldiers in any house in time of peace without the consent of the owner is another facet of that privacy. The present case concerns a relationship," here he's talking about the marital relationship, "lying within the zone of privacy, created by several fundamental constitutional guarantees." Now he's using language that we find risible, the penumbra and the emanations and the zone of privacy. But a moment ago, you yourself, referred to the prohibition on search and seizure as suggesting that the Founders had some understanding, some principle of privacy at work. So is this…

Judge Bork: Yeah.

Peter Robinson: Go ahead.

Judge Bork: They had a specific principle of privacy at work in the Fourth Amendment. It was privacy in your home and in your office from search by the government. That is not just a broad ranging right of privacy you can apply anywhere. Now, Douglas made up a right of privacy that's attached to nothing. And the interesting thing was he attached it--he said it's inherent that--it's crucial to the marriage relationship. Okay. Next thing they do is take it and apply it outside the marriage relationship.

Peter Robinson: Right.

Judge Bork: …and to any kind of sex. Then they take it to and they apply it to abortion, which is not exactly a private transaction.

Peter Robinson: We'll come to these cases in a moment.

Judge Bork: Okay well and then they come to homosexual sodomy. Now that's hardly marriage your relationship. The right of privacy is a free floating right that the Court can do with as it wishes.

Peter Robinson: Can I ask…

Judge Bork: There's no contours.

Peter Robinson: ...when this comes out, if this case is decided in 1965, if I remember your career correctly, you were teaching at Yale at the time. Did you spot that this was trouble right away?

Judge Bork: Oh yeah.

Peter Robinson: That is to say…

Judge Bork: Well no wait, I take it back. I once tended to believe you could make something like that. And…

Peter Robinson: You could create a privacy right of some kind?

Judge Bork: Well, not privacy. It really is an autonomy right. I mean if you take the Bill of Rights, every one of them is about a personal freedom. So if you want to generalize that, you have a right of general freedom, general autonomy. Well, of course, you can't have that, that's anarchy. So I for a long time, spent time in a course I taught trying to devise reasoning about when the government was entitled to coerce and when it was not. Totally ridiculous effort on my part because I was, in effect, saying what Douglas said and what others have said since, that the Framers really weren't as bright as we are. And they had these specific episodes of privacy or rights that they wanted to protect. And we now can stand back and see that they had a larger concept that they should have seen that explains all of these things. And we can apply that larger concept.

Peter Robinson: Next, how the concept of a right to privacy led to the legalization of abortion.

Title: In the Zone (of Privacy)

Peter Robinson: 1973, Roe v. Wade. Writing for the majority, Justice Harry Blackmun, "The right of privacy," it's now not a zone of privacy but a right of privacy, "whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action as we feel it is or as the District Court," which had reviewed the case before it went to the Supreme Court, "determined in the Ninth Amendment's reservation of rights to the people is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. We therefore conclude that the right of personal privacy includes the abortion decision." You have written that that majority opinion was 51 pages but contained not a line of legal reasoning.

Judge Bork: Reasoning. That's right. What you get in there is a history of abortion in the Egyptian days. You get history of abortion under English common law. You learn about the attitudes of the American Medical Association towards abortion. You learn all these things. All of a sudden, he says there is a right of privacy and it's broad enough to cover abortion and that's it.

Peter Robinson: And that's it. It's simply asserted in the most brazen possible way.

Judge Bork: Yeah.

Peter Robinson: All right. Seven Justices of the Supreme Court, seven out of nine signed onto that decision.

Judge Bork: That's right. You don't surprise me.

Peter Robinson: But the point is, you argue your point of view as if this activism were somehow errant and obviously errant.

Judge Bork: No, no. No, no.

Peter Robinson: No?

Judge Bork: It's going on all the time. It's a mistake. It's a perversion of the judge's function but it is the dominant view on the Court today.

Peter Robinson: They've all signed onto it?

Judge Bork: Not all.

Peter Robinson: Not all. 1992 now, Planned Parenthood of Southeastern Pennsylvania v. Casey, because medical science had made it clear that fetuses were in fact viable, that is that they could live outside the womb during the second trimester of the pregnancy, in Roe the Court had set up this scheme of where there's a first trimester, second trimester, third trimester. The Court in the Casey case throws out the framework of Roe, the three-trimester framework of Roe but it refuses to overturn Roe citing the doctrine of, you'll have to help me with the pronunciation…

Judge Bork: Stare decisis, precedent.

Peter Robinson: Stare decisis…

Judge Bork: Right.

Peter Robinson: And that is the need to insure the stability of the law by deferring to precedent. That was reasonable, wasn't it? Isn't that something that a conservative…

Judge Bork: No, no. It wasn't reasonable there because they did, in fact, change Roe. They didn't adhere to Roe.

Peter Robinson: They did heave a lot of it out?

Judge Bork: Yeah. And changed it. And secondly, in constitutional law, precedent is less important than anywhere else because if it's a statute or a common law decision, the Congress can say we don't like what you've done and change the law. If the Court makes a bad mistake about the Constitution, nobody can cure it except the Court. And that's why precedent is less important in constitutional law than it is elsewhere.

Peter Robinson: So at any moment in American history, the nine Justices of the Supreme Court have to be especially alert to the possibility that their predecessors erred. They have to be especially alive to the possibility that they might need to overturn a previous decision?

Judge Bork: That's right.

Peter Robinson: That's right.

Judge Bork: As Scalia points out in the Lawrence v. Texas case--in Casey they talk a great deal about how we can't overturn this because of precedent and when they come to Lawrence which is the homosexual sodomy case, they do overturn the precedent, only of seventeen years standing in Bowers v. Hardwick, which says you can have a homosexual sodomy law. So every reason they gave not to overturn Roe, they gave in the opposite direction to overturn the Texas Sodomy Law.

Peter Robinson: Now onto the Lawrence decision itself.

Title: The Lone Star Statement

Peter Robinson: June 2003, two gay men say that the State of Texas deprived them of privacy rights and equal protection when they were arrested in 1998 for having sex in a Houston home. The Texas statute under which they were arrested, the so-called Sodomy Law, banned homosexual sodomy but not heterosexual sodomy and the Court overturns the Texas statute. Writing for the majority, Justice Anthony Kennedy, who if you do a Google search for him, you'll see him described over and over again as centrist or conservative and he's appointed by Ronald Reagan. "Had those who drew and ratified the due process clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific," this is in protecting the right to homosexual conduct. "They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper, in fact, serve only to oppress." Are you impressed?

Judge Bork: Wonderful rhetoric.

Peter Robinson: And where's the error?

Judge Bork: Where's the meat? Where's the beef? The Constitution has nothing in it that would prevent a state from allowing homosexual sodomy, from allowing abortion or from disallowing homosexual sodomy and disallowing abortion. Those are topics simply not addressed by the Constitution. The Constitution assumes that most of our laws will be made by the moral choice of the American people acting through their legislatures. The Constitution isn't the only law that exists. It's only a framework for how we go about things and a list of specific things legislatures must not do. Beyond that, it's up to the legislature. We used to say that the Supreme Court's capacity to set aside the democratic will would be kept in check by informed professional criticism and by public reactions. The fact is there is very little informed professional criticism. Most of the profession, I think, being on their side of the culture war, likes this kind of thing. Certainly the law school professors do. And the public doesn't react much. The public is kind of passive when these things happen.

Peter Robinson: So, what is to be done?

Judge Bork: Well that's a good question and one I have no answer to. At one point, I proposed that a Constitutional amendment to allow both houses of Congress acting together to overrule Constitutional decisions by the Court. I gave that up because not only is it never going to be passed, the amendment, never enacted, never adopted, but Canada has such a clause in their Constitution.

Peter Robinson: That the legislature can, in effect, supercede…

Judge Bork: That's right.

Peter Robinson: …Court decisions?

Judge Bork: It's a way of putting a democratic check upon a runaway Court. But it is almost never used in Canada. When they try to use it, there's a media scream about you're interfering with judicial independence. Of course, that's precisely why the thing is in the Canadian Constitution.

Peter Robinson: Judicial independence is nothing to be cherished.

Judge Bork: Well, to be cherished…

Peter Robinson: Not always to be cherished.

Judge Bork: …to a point.

Peter Robinson: Last topic: The impact of politics on the judicial process.

Title: The Heat Is On

Peter Robinson: 1937, frustrated by a Supreme Court that's overturning New Deal legislation, Franklin Roosevelt steps forward with his so-called Court-packing scheme. He's going to add new seats and put Justices on the Court that'll enact his legislation. And as political pressure builds, the Court begins reversing itself and approving New Deal legislations, marvelous witticism that the Court's reversal was "the stitch in time that saved nine."

Judge Bork: "Switch."

Peter Robinson: "Switch". "The switch in time that saved nine." Exactly. So the question here is, is what we're seeing today simply the latest iteration of something that has been going on since the beginning and that we just have to live with, which is that Justices bow to political pressure ultimately and that what's going on right now is that they're bowing to political pressure from one particular informed and literate sector of American society?

Judge Bork: I don't think it's political pressure. I think it's a class that they identify with and whose approval they very much want. That is, who makes the reputation of a Supreme Court Justice? People in law schools who write articles, journalists, and so forth and so on. And they begin to play to that audience. I don't think it's political pressure. In order to overcome that, you'd have to have--well even Roosevelt who, at the time had just won a landslide victory over Landon and he was as powerful as he ever was going to be…

Peter Robinson: …as any President ever was in the entire 20th century I think.

Judge Bork: Yeah, even when he pulled the Court-packing plan back it blew up. He tried to pack the Court with new Justices to change the results.

Peter Robinson: And even his Congress wouldn't go along with that?

Judge Bork: That's right. Uh, so…

Peter Robinson: So deeply rooted is deference to the Court in American society.

Judge Bork: The cry about you're interfering with our constitutional rights is always a powerful form of rhetoric even when it's not true.

Peter Robinson: Close with a couple of predictions. Let me set this up by quoting Justice Scalia's dissent in the Lawrence case. "The Court today pretends that we need not fear judicial imposition of homosexual marriage." Kennedy had said in a majority opinion that in effect, sodomy…

Judge Bork: All he said was it's not involved here.

Peter Robinson: Right, okay. As has recently occurred in Canada, back to Scalia, "Do not believe it," says Scalia. "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions." A decade from now, will the Supreme Court have mandated homosexual marriage?

Judge Bork: I think it's less than a decade. Could happen in two ways. One is Massachusetts is about to announce a constitutional right under their constitution to homosexual marriage. At that point, people will come to Massachusetts, get married, go back to their home states. There is the full faith in credit clause, which says the other state, must give credit to the Massachusetts--there will be a fight about the constitutionality and an attempt to stop that. The other route--and that may spread across the country by state court action and by full faith and credit clause. The other route is direct appeal to the Supreme Court of the United States, which I think, is ready to give a right to homosexual marriage, at least will be ready in a few years. The only way to stop this is--there is a proposed constitutional amendment saying that marriage is something between a man and a woman. And you--and no statute or constitutional claim may be interpreted to say same sex marriages is a marriage. Now it doesn't try to stop civil unions. If legislatures want to approve civil unions, it's up to them. I would oppose that but it's up to them. But marriage itself is too important I think to be sacrificed in the way that homosexual marriage would do. Now it must be said that heterosexuals have already done enormous damage to the marriage with their laws about no-fault divorce and that kind of thing so that the whole blame for the damage to the current situation of marriage and the family is certainly not to fall on homosexuals. But this would be a decisive step I think.

Peter Robinson: Unless there's an amendment to the Constitution, the Court will indeed mandate homosexual marriage?

Judge Bork: I think so.

Peter Robinson: Do you then support such an amendment?

Judge Bork: Yeah.

Peter Robinson: You do? And do you think that such amendment is likely to pass?

Judge Bork: It's iffy. The fact is that the opposition to homosexual marriage is eroding in the public. There's still a majority doesn't like it, thinks it's bad. But percentages are not as high as they used to be. And that is, in part, because of a brilliant campaign homosexual activists have waged to convince us that homosexuality is just like heterosexuality, just a question of taste, question of preference and no difference. I think that's not true but it's having its effect and it may be that the public will not be sufficiently alarmed to adopt a constitutional amendment.

Peter Robinson: So it's iffy?

Judge Bork: Yeah.

Peter Robinson: Judge Robert Bork, thank you very much.

Judge Bork: Thank you.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge. Thanks for joining us.