Excerpts from OvercomingLaw (1995)("What Am I? A Potted Plant?" and "Bork and Beethoven")
Republished with permissionofthe author.
From "What Am I? A Potted Plant?"
*****Politically, I feel more governedthan self-governing,and this is one reason why I think more warmly of limited governmentthanof popular government. In considering whether to shrink what are nowunderstoodto be constitutional safeguards to the slight dimensions implied by aliteralinterpretation of the Constitution, we should be careful to have arealistic,not an idealized, picture of the legislative and executive branches ofgovernment, which would be even more powerful than they are today ifthosesafeguards were reduced.
The framers of a constitution who wantto makeit a charter of liberties and not just a set of constitutive rules facea difficult choice. They can write specific provisions andtherebydoom their work to rapid obsolescence, or they can write generalprovisions,thereby allowing substantial discretion to the authoritativeinterpreters,who in our system are the judges. The U.S. Constitution is a mixture ofspecific and general provisions. Many of the specific provisions havestoodthe test of time well or have been amended without much fuss. This isespeciallytrue of the rules establishing the structure and procedures ofCongress.Most of the specific provisions creating rights, however, have faredpoorly.Some have proved irksomely anachronistic-for example, the rightconferredby the Seventh Amendment to a jury trial in federal in all cases at lawif the stakes exceed $20. Others have become dangerously anachronistic,such as the right to bear arms. Some have turned topsy-turvy, such astheprovision for indictment by grand jury. The grand jury has become aninstrumentof prosecutorial investigation on, rather than being the protection forthe criminal suspect that the framers of the Bill of Rights expected itto be. If the Bill of Rights had consisted entirely ofspecificprovisions, it would no longer be a significant constraint on thebehaviorof government officials.
Many provisions of the Constitution,however,are drafted in general terms. This creates flexibility in thefaceof unforeseen changes, but it creates the possibility of alternativeinterpretations,and this possibility is an embarrassment for a theory of judiciallegitimacythat denies judges have any right to exercise discretion. A choiceamongsemantically plausible interpretations of a text, in circ*mstancesremotefrom those contemplated by its drafters, requires the exercise ofdiscretionand the weighing of consequences. Reading is not a form of deduction;understandingrequires a consideration of consequences. If I say, "I'll eat my hat,"one reason why my listeners will "decode" the meaning of this statementin nonliteral fashion is that I couldn't eat a hat if I tried. Thebroaderprinciple, which applies to the Constitution as much as to a spokenutterance,is that if one possible interpretation of an ambiguous statement wouldentail absurd or terrible results, that is a good reason to reject it.
Even the decision to read theConstitution narrowly,and thereby to "restrain" judicial interpretation, is not a decisionthatcan be read directly from the text. The Constitution does not say,"Readme broadly," or, "Read me narrowly." The decision to do one or theothermust be made as a matter of political theory and will depend on suchthingsas one's view of the springs of judicial legitimacy and the relativecompetenceof courts and legislatures in dealing with particular types of issue.
The Sixth Amendment provides that "inall criminalprosecutions, the accused shall enjoy the right . . . to have theAssistanceof Counsel for his defense." Read narrowly, this just means that thedefendantcan't be forbidden to retain counsel. If he cannot afford counsel, orcompetentcounsel, he is out of luck. Read broadly, it guarantees even theindigentthe effective assistance of counsel. It becomes not just a negativerightto be allowed to hire a lawyer but a positive right to demand the helpof the government in financing one's defense if one cannot do itoneself.Either reading is compatible with the semantics of the provision, butthefirst better captures the specific intent of the framers. When theSixthAmendment was written, English law forbade a criminal defendant to havethe assistance of counsel unless his case presented abstruse questionsof law. The framers wanted to do away with this prohibition. But, morebroadly, they wanted to give criminal defendants protection againstbeingrailroaded. When they wrote, government could not afford, or at leastdidnot think it could afford, to hire lawyers for indigent criminaldefendants.Moreover, criminal trials were short and simple, so it was notcompletelyridiculous to expect a lay person to be able to defend himselfcompetentlyfrom a criminal charge without a lawyer if he couldn't afford to hireone.Today the situation is different. Not only can the society afford tosupplylawyers to poor people charged with crimes, but modern criminal law andprocedure are so complicated that an unrepresented defendant is usuallyat a great disadvantage.
***** The liberal judicial activists maybe imprudentand misguided in their efforts to enact the liberal political agendaintoconstitutional law. But it is no use pretending that what they aredoingis not interpretation but "deconstruction," not law but politics, justbecause it involves the exercise of discretion and a concern withconsequencesand because it reaches results not foreseen two hundred years ago. Itmaybe bad law because it lacks firm moorings in constitutional text, orstructure,or history, or consensus, or other legitimate sources of constitutionallaw, or because it is reckless of consequences, or because itoversimplifiesdifficult moral and political questions. But it is not bad law, or nolaw,just because it violates the tenets of strict construction.
From "Bork and Beethoven"
The Tempting of America [by JudgeRobertBork] defends the position that "all that counts" to a judgeinterpretingthe Constitution "is how the words used in the Constitution would havebeen understood at the time [of enactment]." But rather thanproduceconvincing reasons why society should want its judges to adoptoriginalismas their interpretive methodology in constitutional cases, Bork seemsalmostto want to place the issue outside the boundaries of rational debate.Howelse to explain the pervasive religious imagery? It begins with thetitleof the book. Any doubt that the reference is to the temptation isdispelledby the tide of the first chapter-"Creation and Fall"-which begins, "TheConstitution was barely in place when one Justice of the Supreme Courtcast covetous glances at the apple that would eventually cause thefall."
*****A summons to holy war is not anargumentfor originalism. Bork's militance and dogmatism will buck up hisfollowersand sweep along some doubters, but it will not persuade neutrals. Oneespeciallywants a better ground than piety for genuflecting to originalismbecauseBork rightly if incongruously reminds us of the danger of "absolutisms"and "abstract principles," criticizes reliance in constitutional law on"history and tradition," and implies in his interesting discussion oforiginalism'shistorical roots that the nonoriginalist heresy may be part of theoriginal'understanding of the Constitution.
Bork thinks, originalism necessary inorder tocurb judicial discretion, and curbs on that discretion necessary inorderto keep the handful of unelected federal judges from seizing the reinsof power from the people's representatives. But if democracy is theend,originalism is a clumsy means. Bork notes that in the wake of the NewDealthe Supreme Court read out of the Constitution the limitations that thecommerce clause of Article I appears to place on the regulatory powersof the federal government. By the test of originalism, the Court erred.But by erring it transferred power to the people's representatives.
And democracy is not the end, at leastnot theunalloyed end. The democratic (really Bork means the populist)principleis diluted in our system of government. Policies are made by agents ofthe people rather than by the people themselves-precisely so that rawpopulardesire will be buffered, civilized, guided, mediated by professionalsandexperts, informed through deliberation. Even the representatives do nothave a blank check. They are hemmed in by the Constitution itselfrepresenting,to be sure, popular preferences, but those of a sliver of a tinypopulationtwo centuries ago. As Dworkin would say, the question posed by anoriginalistversus an activist or a pragmatist judiciary is not, one of democracyorno democracy, but of the kind of democracy we want.
*****Anyway there is no evidence thatthe Court'sauthority depends on adherence to originalism. Bork knows this,forhe says (in great tension with his remark about the destructibility ofthe institution) that "the Court is virtually invulnerable"; it "can dowhat it wishes, and there is almost no way to stop it, provided itsresulthas a significant political constituency." That is a sensibleobservation.The Court's survival and flourishing depend on the politicalacceptabilityof its results rather than on its adherence to an esoteric philosophyofinterpretation. The Court has never been consistently originalist, yethas survived. Maybe the Justices know more about survival than theircriticsdo; we economist types believe that people generally know more abouthowto protect their own interests than a kibitzer does.
Bork argues that if the only criterionfor evaluatingthe Supreme Court's decisions is their political soundness, anyone whothinks the Court is politically wrong "is morally justified in evadingits rulings whenever he can and overthrowing it if possible in order toreplace it with a body that will produce results he likes." He addsominously:"The man who prefers results to processes has no reason to say that theCourt is more legitimate than any other institution capable of wieldingpower. If the Court will not agree with him, why not argue his case tosome other group, say the Joint Chiefs of Staff, a body with ratherbettermeans for enforcing its decisions? No answer exists."
Actually there are plenty of answers,and oneis that Bork is posing a false dichotomy: a court committed tooriginalismversus a court that a "naked power organ;" blind obedience versusrebellion.These dichotomies imply, implausibly, that the only method ofjustificationavailable to a court, the only method of channeling judicial discretionand thus of distinguishing judges from legislators, is the originalist.No other method-one that emphasizes natural justice, sound justice,socialwelfare, or neutral (but not necessarily originalist) principles-somuchas exists. "The judge who looks outside the historic Constitutionalwayslooks inside himself and nowhere else." And it may be doubtedwhetherthe forbearance of the Joint Chiefs of Staff to attempt a takeover ofthegovernment of the United States is dependent to the slightest degree onthe Supreme Court's adherence to originalism. If one may judge by theevidencethat Bork arrays, the Court has since the beginning strayed repeatedlyfrom the originalist path, yet the Joint Chiefs (or their predecessors)have never tried to take over the government. Nor are they likely totry.
*****The idea of the Constitution as abindingcontract is an incomplete theory of political legitimacy, not anerroneousone. A contract induces, reliance that can make a strong claim forprotection;it also frees people from having continually to reexamine and revisetheterms of the relationship. These values are independent of whether theoriginal contracting parties are still alive. But a long-term contractis bound eventually to require, if not formal modification (which inthecase of the Constitution can be accomplished only through theamendment,process), then flexible interpretation, to cope effectively withaltered,circ*mstances. Modification and interpretation are reciprocal; the moredifficult it is to modify the instrument formally, the more exigent isflexible interpretation. Bork is aware of the practical impediments toamending the Constitution but is unwilling to draw the inference thatflexibleinterpretation is therefore necessary to prevent constitutionalobsolescence.
*****The long-dead framers are aconvenient groupto whom to pass the buck. But although judges are not immune from thealltoo human tendency to deny responsibility for actions that cause pain,the significance of this fact is another matter. It is a considerableparadoxto suggest that these reasons which uncandid judges give for theiractionsare the only legitimate grounds for judicial action. If theresult-orientedor activist judge is queasy about the title deeds of his rulings, theoriginalistis (on the evidence of The Tempting of America, at any rate)queasyabout the consequences of originalist rulings. And rightly so. A theoryof constitutional interpretation that ignores consequences is no moresatisfactorythan one that ignores the political importance of building a bridgebetweenthe contemporary judge's pronouncement and some authoritative documentfrom the past. It is difficult to argue to Americans that in evaluatinga political theory they should ignore its practical consequences. Borkis not prepared to make such an argument. He continually reassures thereader that originalism does not yield ghastly results, while at thesametime denouncing judges who are "result-oriented."
*****The originalist faces backwards butstealsfrequent sideways glances at consequences. The pragmatist places theconsequencesof his decisions in the foreground. The pragmatist judge does not denythat his role in interpreting the Constitution is interpretive. He isnota lawless judge. He does not, in order to do short-sighted justicebetweenthe parties, violate the Constitution and his oath, for he is mindfulofthe systemic consequences of judicial lawlessness. Like Samuel Lipman'sideal conductor, however, the pragmatist judge believes thatconstitutionalinterpretation involves the empathic projection of the judge's mind andtalent into the creative souls of the framers rather than slavishobeisanceto the framers' every metronome marking. In the capacious,forward-lookingaccount of interpretation that I am calling pragmatic, the socialconsequencesof alternative interpretations often are decisive; to the consistentoriginalist,if there were such a person, they would always be irrelevant.
In a representative democracy, the factthat many(it need not be most) people do not like the probable consequences of ajudge’s judicial philosophy provides permissible, and in any eventinevitable,grounds for the people’s representatives to refuse to consent to hisappointment,even if popular antipathy to the judge is not grounded in awell-thought-outtheory of adjudication. The people are entitled to ask what thebenefitsto them of originalism would be, and they will find no answers in TheTempting of America. If, to echo Samuel Lipman again,orginalismmake bad music despite or perhaps because of its scrupuloushistoricity,why should the people listen to it?
