DEMOCRATIZING The JUDICIARY
A Study In Contrasting Philosophies of Judicial Conservatism
I, Judge Robert Bork, am a Judicial Conservative: Judges must Interpret the Constitution according to the “Original Understanding” of the Framers and not according to “Moral Law”. That alone preserves the Constitution. Your theories, Sir, lead to anarchy.
Robert H. Bork, Jurist and Author, according to his philosophy laid out in “The Tempting of America”
In Contrast to
I, John E. Wolfgram, am a Judicial Conservative: Judges can only interpret the Constitution for Government. Only Juries can interpret and balance it for the People. That is the embodiment of Moral Law on Earth. Your judicial philosopy of “Original Understanding” disguises an elitist and anti democratic philosophy of Judicial sSupremacy over the Constitution, and that philosophy unites all of Government against The People.
John E. Wolfgram, Blacklisted Lawyer and Legal Philosopher.
JUDGE ROBERT BORK was nominated to the United States Supreme Court by President Ronald Reagan in l987. The President, in his nomination address, spoke very highly of this judge who presented himself as judicial conservative, saying in his nomination speech:
"Judge Bork is recognized as a premier constitutional authority. His outstanding intellect and unrivaled scholarly credentials are reflected in his thoughtful examination of the broad fundamental legal issues of our times. ...
"Judge Bork, widely regarded as the most prominent and intellectually powerful advocate of judicial restraint, shares my view judge's personal preferences and values should not be part of their constitutional interpretations. The guiding principle of judicial restraint recognizes that under the Constitutuion it is the exclusive provence of the legislature to enact laws and the role of the courts to interpret them." (President's Nomination Statement, July 1, l987.)
No sooner had the President finished, then Senator Ted Kennedy presented another view on national television.
"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual that are the heart of our democracy."
The liberal wing of the Senate Judicial Committee organized the strongest opposition to confirmation any Supreme Court nominee has ever faced. Judge Bork was not confirmed.
After the hearings, he resigned from the United States Court of Appeals and wrote a book definitive of his judicial philosophy entitled "The Tempting of America" published by Simon and Schuster. In it he presents his theory of constitutional interpretation which he calls "The Original Understanding".
How can President Reagan see Judge Bork as a cornerstone of constitutional justice, while Senators see him as the epitomi of evil? How can a single philosophy of "Judicial Conservatism" be so controversial so as to cause such politically extreme commentary?
Our object is to learn about Bork's judicial theories; not just what he says, but what it means to a constitutional democracy and to examine basic alternatives, if any there be: And there begins the problem because Judge Bork says that no other theory is possible and denies there is any place in Constitutional Interpretation for moral law.
His denial is built around a claim of the "Impossibility of All Theories That Depart From The 'Original Understanding'" (PP 251-259) in which he presents three arguments to persuade us that the only viable theory of Constitutional Rights Adjudication is his "Original Understanding". Engage your thinking cap and come with us to examine his theories and do the "impossible" by refuting his premises and finding the moral means of Constitutional Interpretation he claims cannot exist.
This article exposes five basic weaknesses in his arguments and compares his "Original Understanding" to a theory of constitutional interpretation with the participation of the people as Fully Informed Juries, "Democratizing the Judiciary". We shall see on examination:
1. His major premises are false or not compelling and we should not accept them.
2. His arguments of the impossibility of other theories are embarrassingly weak.
3. His "Original Understanding" is not what he claims, but it conceals an "Elitist Moral Pragmatism" that allows judges to rule according to whim.
4. His standards are subjective. Objective standards become possible only after exposing his "Original Understanding" myth.
5. The thing he says is impossible; universal acceptance of a moral philosophy, is actually happening world wide, and our Constitution, As It Is Written, is an important part of it.
The next step is to "Democratize the Judiciary".
IS JUDGE BORK THE JUDICIAL CONSERVATIVE HE CLAIMS TO BE?
While the answer is demonstrated throughout this article, a short form answer is gleaned in a brief examination of his basic premise of "Judicial Supremacy". It contradicts his conclusion and demonstrates the judicial system he proposes is the present judiciary by a different name.
The Contradiction: If one's theory of judicial interpretism is according to the framer's original understanding, then one must, at a minimum, retain the relationship of the judicial role to the constitution and to the other branches that the framers understood it to be.
Nowhere does the Constitution suggest the Judiciary should be supreme to it, or to the other branches, nor is there any indication that any framer, let alone a majority intended that. On the contrary: Article I says only Congress can make law. Thus, "Judicial Supremacy" is not a part of a true original understanding. But Judge Bork claims "Judicial Supremacy" as the foundation for the legitimacy of all theories of judicial interpretism.
From this, one may understand that Judge Bork is not the "Judicial Conservative" he claims to be. He is a "Judicial Supremist" and that is an entirely different thing: It is Supremacy of the Judiciary, and hence of Government; Over The Constitution, and hence, Over the People.
In that his major premise, Judicial Supremacy, contradicts his conclusion, Original Understanding, it may also be inferred that he is not a very good philosopher. Such contradiction in one's philosophy, whether moral or judicial, is generally considered to be very bad form; not to mention what it does to substance.
IS THERE ANY ALTERNATIVE THEORY?
It almost seems self evident, whether Bork's theory gets to the original understanding or not, that the only legitimate way to interpret the Constitution is to find the framers intention and let that intention be your guide.
There is another theory that also seems self evident: Given 200 years of judicial gloss over the Constitution, and several amendments that change its meaning, there is no such thing as an "original understanding". Given what new understandings do to constitutions, Bork's theory invites amendment by judicial rationalization clothed in antiquity. The best way to interpret a constitution is as it is written and the best evidence of what it means is what it says. Everything else, including "original understanding" is mere argument.
The basic alternative to Bork is not in finding a "true" original understanding that doesn't exist, but in asserting a democratic balance to the "original understandings" judges create.
WHO SHOULD INTERPRET IT?
Again, Bork just assumes it must be government's judges who interpret it. How convenient, but given it is the basic contract between government and governed we speak of, there is a conflict and no more reason judges should be a final arbiter of its meaning than the people.
And one is as convenient as the other. If you are to put a constitutional question before a court, why should it not be a jury that decides the issue, rather than the judge?
To this, Judge Bork would say: That is insanity! It would lead to anarchy and a break down of all government systems.
To that I say: That's government paranoia talking. All a jury does is decide one case at a time. That doesn't cause anarchy. It merely causes a slight uncertainty of enforceability that tells government that the rule it is imposing on the people, does not meet their common sense understanding of constitutionality. Far from anarchy, it gives the government an opportunity to develop better laws more acceptable to the people and to simplify a legal system overburdened with two centuries of antiquated rationalizations.
But, Judge Bork might argue: Juries are made of ordinary people who have no expertise in constitutional construction.
To which we would smile and say: That's Right! For whose benefit do you think the Constitution was intended: The lawyers?
THE POINT: The above demonstrates how fertile a dialogue is foreclosed by considering Alternative Theories Impossible.
Let us now examine his arguments for judicial supremacy without moral law.
JUDGE BORK'S ARGUMENTS AGAINST MORAL THEORY:
Judge Bork describes the moral theory judges might use to justify constitutional decisions at Page 252.
"...at a minimum, the judges must have a moral theory and persuade the public to accept it without simultaneously destroying the function of Judicial Supremacy."
Bork Begs The Question:
The first question he begs is whether judicial philosophy can be imposed without stating it, let alone persuading the public to accept it. In other words, is a philosophy of constitutional interpretation without discipline to constitutional principle, a legitimate constitutional philosophy of law? I think there is no doubt it is a "moral philosophy" (moral pragmatism) out of which "principles" of constitutional interpretation like Substantive Due Process and Compelling or Rational State Interest, emerge, evolve, live and die. That is legitimate in the sense that counts: When practiced almost exclusively by our judges, it is "self legitimating".
The Question Begged is that the Judges must state their operative philosophy openly. Neither Judge Bork, nor judges generally, do that.
Bork Begs Another Question:
The second question begged is that the "Function of Judicial Supremacy" must, or should be sustained. It is interesting that this major premise that makes such a tremendous difference in the judicial role, is just assumed as if no alternative is possible.
In fact, at least three alternatives are possible:
THREE ALTERNATIVES TO JUDICIAL SUPREMACY:
One is the judicial role that Bork SAYS is his "Original Understanding"; that the judiciary's role should be reserved and limited. That could be accomplished by Congress' Constitutional Authority to impeach judges and involves the interpretation of "Judges shall hold their office during good behavior" in Article III. If it is up to Congress to interpret that clause, and there is no constitutional reason it should not be, then the Supreme Court and all judges must give way to congressional interpretations of the Constitution, lest Congress find that failing to support the Constitution as Congress sees it violates their oath and is not "good behavior" subjecting them to impeachment. The result would be that judges would make no constitutional interpretation where they could not point to the Constitution, As It Is Written, to support it, and "Judicial Supremacy" would be replaced by a Congressional Supremacy more amiable to democracy.
The Second is to replace Judicial Supremacy with a form of democratic supremacy. When the Supreme Court interprets the Constitution, it doesn't just add "judicial gloss" but it changes it without the advice and consent of the other party to it, the people. Thus, each of these little "judicial amendments" should be put to the people for ratification before becoming binding. Admittedly, this is somewhat cumbersome, but not impossible. It could be done by submitting Judicial changes to congress for approval as constitutional amendments and then to the states for ratification.
Some would say that is nonsense. The Supreme Court does not make decisions that are influential enough to warrant being treated as actual amendments to the Constitution. To those, I say, "You don't know what you are talking about." The most far reaching constitutional changes in the relationship between government and governed have been accomplished by judicial edict. To name a few:
Sovereign Immunity; Absolute Judicial and Prosecutorial Immunity; Qualified immunity; First Amendment Compelling State Interest Doctrine; Arrogant Indifference to the Petition Clause; Eleventh Amendment State Immunity From Its Own Citizens; Second Amendment Exclusions of Arms ownership from protection; Fourth Amendment Exclusionary Rule, Fifth Amendment Rational State Interest Doctrine; Property Seizures; Watering Down of Substantive Rights like Jury Trial; linking "Cruel and Unusual" to our barbaric past and Interstate Commerce Clause Incursions into State Sovereignty.
These are just some of the major modifications to our Constitution by judicial edict. But the one that really stinks is the judicial control over the development of all political and legal philosophy through compulsory bar associations and the educational standards of lawyers. That is a compulsory propaganda pipeline of judicial supremacy to the best and ablest legal/political and philosophic minds of the nation.
Do you want to know why Judge Bork got away with assuming "Judicial Supremacy"; a major contradiction to his philosophy? Because all of us have been propagandized into "One Orthodox Religion of Judicial Supremacy", all of our lives. That's why.
Third; "Judicial Supremacy" can be restricted to government. That is, the Judiciary is the final arbiter of constitutional meaning, but only for the government. The people, recognizing the constitutional adversity between government and governed, have jury nullification as their balancing force.
The Result: The judges are seen as government's spokesman for its own constitutional contentions; And in that same forum, the jury is the spokesman for the people's interpretation.
And if the judge and the jury disagree? So what? They solve the case at hand, and if the jury does not support government's interpretation, it can change its interpretation before the next case arises; or be more convincing of its constitutionality.
Is that all government's interpretations of the Constitution are, contentions and not law? What else can they be without the consent of the governed? It is a part of the on going bargaining process between government and governed by which they determine, through consent and without force, what the law shall be. In a cultural sense, this is the way a civilized society progressively becomes more civilized. It is a negotiating process to ultimately determine what the supreme law of the land shall be, by CONSENT, not by Judicial Edict.
All that is required to accomplish this major change in the balance of power between government and governed is to recognize the jury as it was broadly conceived in Revolutionary Times: That they are competent to judge the law as well as the fact. That is the right of "Jury Nullification" or "Fully Informed Juries."
But understand, Jury Nullification is not an idea created to shift the balance of power. It is a RIGHT government has stolen from juries in order to institute Judicial Supremacy.
Thus, we see initially, Judge Bork begs the most important questions, which if faced honestly, would change his own idea of what "The Original Understanding" is and how it works or fails to work. The Real Original Understanding is that we, the governed shall always have real bargaining tools with which to negotiate terms of consent with government. Jury Nullification is the "line item veto" by which the governed continuously limit government's nonconsented to assumptions of power.
Judicial Supremacy is the opposite. It is the means by which government continuously assumes power without the due process formality of obtaining the consent of the governed.
By ignoring this basic weakness in his premises, Judge Bork's three arguments to show the Impossibility of Theories that Depart from "Original Understanding" are so weak as to suggest a design to coverup and avoid addressing the basic question that is begged throughout his book: Why is judicial, or government supremacy over the Constitution “necessary”?
WHY GOVERNMENT SUPREMACY OVER THE CONSTITUTION?
Why should government, through its judiciary, legislature, or executive; or all three combined, have supremacy over the Constitution, as to its own people?
The Answer: There is no reason at all. In fact, Judge Bork's "Original Understanding" of the Constitution is not mine or yours, but government propaganda of its own contentions and it is designed to mislead us. When you examine his arguments you can see that he attempts in his book what he claims no one can: Justify a theory of constitutional construction called "Original understanding" but which is in reality, divorced from the most important rules of interpreting any legal document, to wit:
First: The Parole Evidence Rule is that the best evidence of what a document means is what it says, in its entirety, as it is written. It is only when its meaning cannot reasonably be found from its face, that we go to an "original understanding" to clarify what is meant within its four corners. But because of amendments occurring years, even centuries after it was drawn, there is no "original understanding" of the Constitution; only of some clauses; and to interpret it clause by clause according the understanding when those clauses were drafted defeats the rule of construction that documents must be construed in their entirety.