David Tenner
2010-04-09 17:58:41 UTC
Robert Bork has always been a conservative, at least since Aaron Director--
founder of the University of Chicago law-and-economics school, and brother-
in-law of Milton Friedman--converted him from his youthful New Dealism.
However, he has not always been the same *kind* of conservative. On economic
issues, his views have changed little over the years. But on other issues,
his conservatism of the 1960's was of a much more libertarian variety than
that he embraced later.
Bork had already enunciated his libertarian philsophy in a 1963 article for
the *New Republic* opposing the public-accomodations section of the civil
rights bill. However, probably the definitive statement of his 1960's
libertarianism was his December 1968 article for *Fortune,* "The Supreme
Court Needs A New Philosophy." In this article, Bork, while critical of what
he regarded as the Warren Court's result-oriented jurisprudence, made it
clear that at that time he did not consider what would later be called
"originalism" a viable alternative:
"[I]t is naive to suppose that the [Supreme] Court's present difficulties
could be cured by appointing Justices determined to give the Constitution its
'true meaning,' to work at 'finding the law' instead of reforming society.
The possibility implied by these comforting phrases does not exist....
History can be of considerable help, but it tells us much too little about
the specific intentions of the men who framed, adopted and ratified the great
clauses. The record is incomplete, the men involved often had vague or even
conflicting intentions, and no one foresaw, or could have foreseen, the
disputes that changing social conditions and outlooks would bring before the
Court."
Bork tried to derive his "new philosophy" for the Court from Herbert
Wechsler's doctrine of "neutral principles." For example in 1968, Bork took
it for granted that the First Amendment protected non-political as well as
political speech. The protection of political speech could be justified as
necesary to maintain the democratic process. But why protect non-political
speech? True, such speech fulfilled important functions for both speaker and
audience but so did many other (non-speech) sorts of behavior. Thus,
"neutral principles" required that the protection of non-political speech be
given broader implications:
"[N]on-political speech too, of course, is entitled to some degree of
constitutional protection. Brandeis cited other values of speech that are not
unique to the political variety. For both speaker and hearer, speech may be a
source of enjoyment, of self-fulfillment, of personal development. It is
often mundane or vulgar or self-serving, but it may be exalted, inspired by
the highest motives. It may affect attitudes that ultimately impinge on the
political process. All this has implications that, though generally
overlooked, seem inescapable. For in these respects nonpolitical speech does
not differ from nonverbal behavior, whether it customarily bears the label
'sexual,' 'economic,' 'artistic,' or some other. One could argue, then, that
all human behavior should be entitled to the same level of constitutional
consideration, the same judicial scrutiny of governmental regulation, that is
currently afforded to nonpolitical speech."
Bork proposed the following test:
"[M]oral disapproval alone cannot be accepted as a sufficient rationale for
any coercion... The Court can draw a line, applicable to many more situations
that the 'right of privacy' enunciated in *Griswold*, by ruling that the
majority may prohibit morally or aesthetically offensive nonpolitical
behavior where the public must observe it, but cannot reach conduct out of
sight on such a rationale. Both majority and minority may feel some pain at
their respective limitations, but the line does preserve an enclave of
freedom while minimizing the pain felt by the majority."
Thus, not only did the Bork of 1968 approve *Griwsold v. Connecticut* (at
least the result, if not the majority's reasoning) but he enunciated a test
which would clearly have opposed *Bowers v. Hardwick* and supported *Lawrence
v. Texas.* Moreover, there is at least a strong argument that the Bork of
1968 would support *Roe v. Wade* as well as *Griswold v. Connecticut.*
Bork's libertarian phase, however, was short-lived. In his well-known
"Neutral Principles and some First Amendment Problems," 47 Indiana Law
Journal 1 (1971) he turned his 1968 reasoning on its head--arguing that since
non-political speech was (in terms of the values it served) logically
indistinguishable from many forms of non-speech activity subject to
government regulation, the only solution compatible with "neutral
principles" was... to deny non-political speech any First Amendment
protection! And as an observer noted, "By 1990, Mr. Bork will believe that a
majority *must* legislate morality if it is not to 'dissolve social
bonds.'...Mr. Bork confessed nobly to his change of heart, at least insofar
as it implied a reversal of his position over *Griswold v. Connecticut*. In
1968, together with other commentators, he had thought that case 'a salutary
demonstration of the Court's ability to protect fundamental human values.' In
fact, he offered a principle that went even further. By 1971 he felt it was
an 'unprincipled decision,' both its derivation and its definition being
'utterly specious.'(34) The only 'extenuation' he could offer for his change
of heart was that 'at the time I thought, quite erroneously, that new basic
rights could be derived logically by finding and extrapolating a more general
principle of individual autonomy underlying the particular guarantees of the
Bill of Rights.'" http://www.law.duke.edu/boylesite/bork.htm
My question is, What if Bork had retained his libertarian philosophy of the
1960's instead of embracing social conservatism in politics and originalism
in jurisprudence? There is little point asking whether it would have been
easier or harder for Bork to be confirmed by the Senate in that event,
because he would never have been nominated to the Court by Reagan in the
first place. That is not to say that Bork would not have had any role in
Republican administrations. Socially conservative Republican presidents
would undoubtedly have no problem with this *Bork as, for example, head of
the Antitrust Dvision of the Department of Justice. But that would be about
the limit of his influence in their administrations...
founder of the University of Chicago law-and-economics school, and brother-
in-law of Milton Friedman--converted him from his youthful New Dealism.
However, he has not always been the same *kind* of conservative. On economic
issues, his views have changed little over the years. But on other issues,
his conservatism of the 1960's was of a much more libertarian variety than
that he embraced later.
Bork had already enunciated his libertarian philsophy in a 1963 article for
the *New Republic* opposing the public-accomodations section of the civil
rights bill. However, probably the definitive statement of his 1960's
libertarianism was his December 1968 article for *Fortune,* "The Supreme
Court Needs A New Philosophy." In this article, Bork, while critical of what
he regarded as the Warren Court's result-oriented jurisprudence, made it
clear that at that time he did not consider what would later be called
"originalism" a viable alternative:
"[I]t is naive to suppose that the [Supreme] Court's present difficulties
could be cured by appointing Justices determined to give the Constitution its
'true meaning,' to work at 'finding the law' instead of reforming society.
The possibility implied by these comforting phrases does not exist....
History can be of considerable help, but it tells us much too little about
the specific intentions of the men who framed, adopted and ratified the great
clauses. The record is incomplete, the men involved often had vague or even
conflicting intentions, and no one foresaw, or could have foreseen, the
disputes that changing social conditions and outlooks would bring before the
Court."
Bork tried to derive his "new philosophy" for the Court from Herbert
Wechsler's doctrine of "neutral principles." For example in 1968, Bork took
it for granted that the First Amendment protected non-political as well as
political speech. The protection of political speech could be justified as
necesary to maintain the democratic process. But why protect non-political
speech? True, such speech fulfilled important functions for both speaker and
audience but so did many other (non-speech) sorts of behavior. Thus,
"neutral principles" required that the protection of non-political speech be
given broader implications:
"[N]on-political speech too, of course, is entitled to some degree of
constitutional protection. Brandeis cited other values of speech that are not
unique to the political variety. For both speaker and hearer, speech may be a
source of enjoyment, of self-fulfillment, of personal development. It is
often mundane or vulgar or self-serving, but it may be exalted, inspired by
the highest motives. It may affect attitudes that ultimately impinge on the
political process. All this has implications that, though generally
overlooked, seem inescapable. For in these respects nonpolitical speech does
not differ from nonverbal behavior, whether it customarily bears the label
'sexual,' 'economic,' 'artistic,' or some other. One could argue, then, that
all human behavior should be entitled to the same level of constitutional
consideration, the same judicial scrutiny of governmental regulation, that is
currently afforded to nonpolitical speech."
Bork proposed the following test:
"[M]oral disapproval alone cannot be accepted as a sufficient rationale for
any coercion... The Court can draw a line, applicable to many more situations
that the 'right of privacy' enunciated in *Griswold*, by ruling that the
majority may prohibit morally or aesthetically offensive nonpolitical
behavior where the public must observe it, but cannot reach conduct out of
sight on such a rationale. Both majority and minority may feel some pain at
their respective limitations, but the line does preserve an enclave of
freedom while minimizing the pain felt by the majority."
Thus, not only did the Bork of 1968 approve *Griwsold v. Connecticut* (at
least the result, if not the majority's reasoning) but he enunciated a test
which would clearly have opposed *Bowers v. Hardwick* and supported *Lawrence
v. Texas.* Moreover, there is at least a strong argument that the Bork of
1968 would support *Roe v. Wade* as well as *Griswold v. Connecticut.*
Bork's libertarian phase, however, was short-lived. In his well-known
"Neutral Principles and some First Amendment Problems," 47 Indiana Law
Journal 1 (1971) he turned his 1968 reasoning on its head--arguing that since
non-political speech was (in terms of the values it served) logically
indistinguishable from many forms of non-speech activity subject to
government regulation, the only solution compatible with "neutral
principles" was... to deny non-political speech any First Amendment
protection! And as an observer noted, "By 1990, Mr. Bork will believe that a
majority *must* legislate morality if it is not to 'dissolve social
bonds.'...Mr. Bork confessed nobly to his change of heart, at least insofar
as it implied a reversal of his position over *Griswold v. Connecticut*. In
1968, together with other commentators, he had thought that case 'a salutary
demonstration of the Court's ability to protect fundamental human values.' In
fact, he offered a principle that went even further. By 1971 he felt it was
an 'unprincipled decision,' both its derivation and its definition being
'utterly specious.'(34) The only 'extenuation' he could offer for his change
of heart was that 'at the time I thought, quite erroneously, that new basic
rights could be derived logically by finding and extrapolating a more general
principle of individual autonomy underlying the particular guarantees of the
Bill of Rights.'" http://www.law.duke.edu/boylesite/bork.htm
My question is, What if Bork had retained his libertarian philosophy of the
1960's instead of embracing social conservatism in politics and originalism
in jurisprudence? There is little point asking whether it would have been
easier or harder for Bork to be confirmed by the Senate in that event,
because he would never have been nominated to the Court by Reagan in the
first place. That is not to say that Bork would not have had any role in
Republican administrations. Socially conservative Republican presidents
would undoubtedly have no problem with this *Bork as, for example, head of
the Antitrust Dvision of the Department of Justice. But that would be about
the limit of his influence in their administrations...
--
David Tenner
***@ameritech.net
David Tenner
***@ameritech.net