Robert Bork: "The Soul of the Law"

Wall Street Journal ^ | Jan 20, 2003 | Robert Bork

[The Raven]

Liberalism -- the modern, not the classical variety -- dominates the strategic heights of our culture: the universities, media, churches, Hollywood, and the foundations. Liberalism's most powerful position, arguably, is its dominance in the law.

Judges on both national and international tribunals have generally aligned themselves with "elite" classes that despise conservatism and its culture, and are thus well to the left of the general public. The result is not only the steady decline of self-government and national sovereignty but also the pushing of culture to the left. Today's liberalism celebrates the liberation of the individual, but that liberation is only from the traditional culture of the community, and from the laws that reinforce it. The individual is not often liberated from the demands of authoritarian liberalism, sometimes referred to, though inadequately, as "political correctness."

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[RLK]

The day when Bork was denied a seat on the supreme court marked a great loss for this nation.

[aardvark1]

Bump!!!

[conservatism_IS_compassion]

Warren Burger waited too long to retire, which allowed the Democrats to gain the majority in the Senate and put them in the position to change a good man's name into a synonym for "smear."

[PGalt]

Thanks for your post. Bork's analysis is brilliant.

[Pukka Puck]

"Legal conservatism, like conservatism generally, emphasizes the virtues of prudence and practical wisdom, believing that patient scrutiny will often reveal wisdom in existing laws, customs, and institutions. Evolutionary change that gradually eliminates what is bad while preserving what is good is to be preferred to root-and-branch reforms. In the law, proposals for significant change should be examined under a presumption of error. Viscount Falkland's formulation -- "When it is not necessary to change, it is necessary not to change" -- though perhaps excessively bold, as aphorisms tend to be, pretty much sums the matter up."

Really good stuff. Thanks for posting this.

[Red Jones]

it is a very sad thing that our civilization does not want people like Bork who are brilliant and imbued with excellence. We did not get to be a great civilization by preferring mediocrity over excellence.

Bork had a long career. I read that he never had a single ruling over-ruled on appeal. He had a reputation for being able to influence other judges. It was his excellence that kept him off of the Supreme Court.

[kms61]

Bork was done wrong by the Democrats, no question. That said, his views on the First Amendment trouble me. I'm frankly not sure if he would have been such a wise choice.

JMHO, and probably a minority view on this forum.

[Red Jones]

yeah, I'm sure it's a minority view here; but I take it you have some principaled disagreement with Bork on free speech. So, does bork want to allow government to limit porn on the internet? Is that it?

[kms61]

Let me put it this way...I have serious qualms about someone being on the Supreme Court who thinks the First Amendment should only apply to political speech.

If that's an inaccurate interpretation of Bork's position, I'm willing to stand corrected, but that's my reading of it.

[cricket]

"Four members of an equally divided Supreme Court cited "the views of the international community in determining whether [the death penalty for juvenile murderers] is cruel and unusual" under our Eighth Amendment. One justice in a case involving allowable delays of execution found "useful" decisions of the Supreme Court of Zimbabwe! Foreign courts cite each other's constitutional rulings and urge U.S. courts to do more of the same. None of the judges involved feel themselves bound entirely by the texts and histories of their own constitutions. The tendency, therefore, is to develop a universal "constitutional" law which, as in America, is a product of the opinions of an international intellectual "elite." This homogenized law is capable of erasing the actual provisions of our own Constitution."

The most frightening paragraph!

Bork is such a fine thinker; wish he would make more Media appearances and take on some of these Libs where they live.

[KC Burke]

Bork wants see reviewing Justices decide such matters based upon the words as understood by those that wrote, and those that adopted them. He then wants to see the slooow process of adopted and legitiment law come into play.

Reliance upon metaphysical rationality in analyzing law is not in his understanding, or in mine.

[Carry_Okie]

Universalist abstractions cannot cope with concrete realities, including those of human nature. Attempts to make them do so beget reckless changes and authoritarian solutions.

I would like Dr. Bork to try to support that contention.

I would argue that seeking those universal principles and attempting ever more precise descriptions thereof is the precise goal of good legislation, just as it is with scientific models of physical laws. Jurists too often forget the power of the market to resolve competing risks and uncertainties when its architecture is aptly so configured. Theirs is the task of maintaining a context, not remanding orders. The principle in the construction and fallout of the latter is the continuing insular judicial infatuation with precedent confounded with the power to issue orders.

I wish that jurists had understood the principles of feed-forward and autocatalysis as the driving force in the law of unintended consequences before they had so willingly accepted the English system. It was never voted upon. It was never adopted Constitutionally. It was assumed.

And so here we are, encumbered with the same chains of multiple tyrannies (which the Declaration cited as just cause for revolution) without having recognized their systemic cause.

[Gorjus]

Bork was done wrong by the Democrats, no question. That said, his views on the First Amendment trouble me. I'm frankly not sure if he would have been such a wise choice.

I think Bork would have been a 'wise choice' by the standard of those available today, but he had at least two major flaws that certainly made him less than perfect.

During his confirmation hearings, he said that the considered the 10th Amendment essentially moot. That is very disturbing, and certainly not consistent with his claims to be bound by the Constitution.

But I disagree also with his originalist intent philosopy.

. . . to discern its principles as they were originally understood by the men who made the Constitution law.

The Constitution doesn't belong to James Madison. It belongs to 'We, the People'. The words need to be interpreted in light of how the people would read them, in common English usage, except in cases where an absolutely compelling case can be made that the language has changed from the original usage - not that the intent of the people has changed, but that the language itself has changed.

(For example, if it had said, "In order to provide for a cheerful society, only gay men will be allowed to vote," I think a compelling case could be made that the word 'gay' had changed meaning in ordinary usage.)

It does not help the case for the importance of the Constitution to appeal to some long-dead person's opinion in lieu of some current person's opinion. The words themselves matter, and as interpreted by the people at large through the way we use the words. Yet if someone reads a simple statement like, 'the right . . . shall not be infringed' and is told that what is means is what someone - living, dead, or yet unborn - decides that it means instead of what 'We, the People' decide that it means, then the whole document becomes only another elitist power grab.

The 10th Amendment is a good touchstone for that - among others - and someone who believes those clear words don't mean anything (as Bork declared) is flawed at best as a Supreme Court Justice.

Of course, Ginsburg believes the whole Constitution doesn't mean anything and I'd rather have Bork than her any day.

[Marianne]

BTTT

[Taliesan]

The words themselves matter, and as interpreted by the people at large through the way we use the words.

That's what you have now. Congratulations.

[yendu bwam]

bttt

[Carry_Okie]

Good reply on principle, but I would take issue upon interpretation.

During his confirmation hearings, he said that the considered the 10th Amendment essentially moot. That is very disturbing, and certainly not consistent with his claims to be bound by the Constitution.

You might be confusing an observation with a preference. This doesn't say that Dr. Bork preferrs this outcome, but that he acknowledges its reality.

This is more than a philosophical distinction when one considers the diametric conflict in principle between the 10th Amendment principle of federalism and the 14th Amendment powers to confer federal citizenship and "provide" equal protection as of course determined by the national government, particularly the courts. The former essentially reversed the entire principle of how the people conferred limited powers to the national government and stating instead that the national government issues their citizenship by which their acquire their rights. The latter removed any vestige of reserved states' rights under the 10th Amendment by imbuing the federal government with the responsibility to make everything "equal."

It may be this reality to which Dr. Bork refers.