Judges Following No Law

August 12, 2004 by Robert H. Bork Within the next two or three years, the Supreme Court will almost certainly climax a series of state court rulings by creating a national constitutional right to homosexual marriage. The Court's ongoing campaign to normalize homosexuality--creating for homosexuals constitutional rights to special voting status and to engage in sodomy--leaves little doubt that the Court has set its course for a right to marry. This is but one of a series of cultural debacles forced upon us by judges following no law but their own predilections. This one, however, will be nuclear. As an example of judicial incontinence, it will rival Roe v. Wade, and will deal a severe and quite possibly fatal blow to two already badly damaged but indispensable institutions-marriage and the rule of law in constitutional interpretation. The wreckage may be subtler but more widespread even than that. Such a decision would ratify, in the most profound way, the anarchical spirit of extreme personal and group autonomy that is the driving force behind much of our cultural degradation. Call it what you will--moral chaos, relativism, postmodernism--extreme notions of autonomy already suffuse our culture, quite aside from any assistance from the courts. But judicial endorsement, which is taken by much of the public to state a moral as well as a legal truth, makes the anything-goes mentality even harder to resist. The principle undergirding radical autonomy is essentially unconfineable. Thus, Justice Byron White, Senator Rick Santorum, and William Bennett have all made the point that the rationale for same-sex marriage would equally support group marriage, incest, or any other imaginable sexual arrangement. That surely is the meaning, insofar as it has a discernible meaning, of the imperialistic "mystery passage" first articulated by three justices in a case upholding the right to abortion and repeated in the majority opinion creating a right to homosexual sodomy: [Our] law affords constitutional protection to...the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, [which] are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty [protected by the Constitution] is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Reading these words, it is hard to know what there is left for legislatures to do, since each individual is now a sovereign nation. The only real hope of heading off the judicial drive to constitutionalize homosexual marriage is in the adoption of an amendment to the Constitution. The language of the amendment now before Congress is this: Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any state shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. The amendment is intended primarily to stop activist courts from redefining marriage in any way they see fit, as the Supreme Judicial Court of Massachusetts has recently done. The first sentence, however, also limits legislatures by defining marriage as the people of the United States and of the West have known it. Given that the stakes riding on the outcome of the effort to adopt the Federal Marriage Amendment (FMA) are so high, it is surprising that so many social conservatives have expressed opposition. Though these are men for whom I have the highest regard, in this instance I think they are mistaken. Their mistake, it seems to me, derives from a conservative constitutionalism which, though laudable in the past, is now, most unfortunately, obsolete. Walter Bagehot, writing of the English constitution in the nineteenth century, said, "[I]n the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now no longer true." So it is with us. Michael Greve correctly places the same-sex marriage issue in a wider context: "[T]he broader, more menacing problem is judicial usurpation... [W]hat truly grates is the notion of having [homosexual marriage] dictated by willful, contemptuous judges." Conservative constitutionalism today requires taking back the original Constitution to restore the constitutional order and representative government. If that requires amending the Constitution to recall the judges to their proper function, so be it. There is no other remedy available to save or, more accurately, to restore a republican form of government.

The conservative columnists George F. Will and Charles Krauthammer, however, seem to me to illustrate Bagehot's maxim. Will has written that "amending the Constitution to define marriage as between a man and a woman would be unwise for two reasons. Constitutionalizing social policy is generally a misuse of fundamental law. And it would be especially imprudent to end state responsibility for marriage law at a moment when we require evidence of the sort that can be generated by allowing the states to be laboratories of social policy." To his point about the unwisdom of putting social policy in the Constitution, it is fair to reply that the entire document can be seen as expressing social policy, and certainly parts of the Bill of Rights, such as the guarantee of the free exercise of religion, do exactly that. The real difficulty with Will's position, however, is his notion that the states will be allowed to be laboratories of social policy. They will not; the Supreme Court, as in the case of Roe, will simply replace the social policies of all of the states with its own policy. The most likely route to that ruling is the following. A homosexual couple will marry in Massachusetts, move to another state (say, Texas), and claim the status and benefits of marriage there. They will cite the Full Faith and Credit Clause of Article IV of the Constitution, which declares that states must accept the public acts of every other state. Texas will refuse recognition, relying on the federal Defense of Marriage Act (DOMA), passed in reliance on Article IV'S further provision that Congress may prescribe the effect of such out-of-state acts. The couple will respond with a challenge to DOMA under the federal Due Process and Equal Protection Clauses. The Supreme Court will then uphold their challenge by finding a federal constitutional right to same-sex marriage that invalidates DOMA. The FMA would prevent this almost-certain outcome. Instead of state-by-state experimentation, we are going to have a uniform rule one way or the other: homosexual marriage everywhere or nowhere. The choice is that stark and judges are forcing us to make it. Charles Krauthammer agrees that "there is not a chance in hell that the Supreme Court will uphold" DOMA. He concludes, nonetheless, that "I would probably vote against the amendment because for me the sanctity of the Constitution trumps everything, even marriage." His point would be well taken if it were not much too late to worry about the sanctity of a document the Supreme Court has been shredding for fifty years. Surely the Court's diktats, which are themselves profoundly unconstitutional, are not sacred. As matters now stand, the "sanctity of the Constitution" is a smoke screen providing cover for judicial activism. Taking action through authentically constitutional means to prevent yet another constitutional travesty shows greater respect for the document than standing by while five of nine justices chisel into the tablets of the law the caprices of the elite class to which they respond. An amendment preventing one instance of judicial depredation would at least represent a democratic choice--indeed a choice by supermajorities, given the requirement of a two-thirds vote in each house of Congress and then ratification by three-quarters of the states. There is one other objection expressed by Krauthammer, however: "I would be loath to see some future democratic consensus in favor of gay marriage (were that to come to pass) blocked by such an amendment." That objection could, of course, be made to every provision of the Constitution; each and every one precludes some action by a future democratic consensus. If, for example, a national majority should want to make foreign-born naturalized citizens eligible for the presidency or to abolish jury trials in complex lawsuits, that democratic consensus would be frustrated by the Constitution. Michael Greve suggests a constitutional amendment that would preserve the value of state experimentation while heading off the Supreme Court creation of homosexual marriage: The United States Constitution shall not be construed to require the federal government, or any state or territory, to define marriage as anything except the union of one man and one woman. The United States Constitution shall not be construed to require any state or territory to give effect to any public act, record, or judicial proceeding respecting a relationship between persons of the same sex that is treated as a marriage under the laws of another state or territory. This amendment would leave states free to give effect to the acts of other states or not, as they see fit. Greve suggests that state legislatures could control the choice through legislation allowing or forbidding their courts to honor out-of-state homosexual marriages. There seem both legal and sociological problems with this proposal. The language leaves out of account what state courts may do with state constitutions. A state supreme court could very well hold--and a number of them certainly will--that its state constitution contains a right to homosexual marriage or, alternatively, that its constitution mandates recognition of such marriages contracted elsewhere. It is not a sufficient answer that the citizenry could respond by amending the state constitution. In many states the amending process is quite difficult and time-consuming; and a state supreme court's ruling will itself affect

the balance in the electorate. The cultural aristocracy--the news media, university faculties, many churches, foundations, television networks, and Hollywood will continue, as they have already been doing, to propagandize massively and incessantly for the normality of homosexuality and the right to marry. It may be doubted that many states will muster supermajorities overruling their courts in the face of this cultural tsunami. There seems no way to guard against state court activism on this issue, which we have already seen in Hawaii, Vermont, and Massachusetts, except by a federal amendment that binds state as well as federal courts. As seems inevitable in discussions about reining in runaway courts, some have suggested that instead of amending the Constitution, Congress should deny all federal courts jurisdiction to deal with the marriage issue. Congress has power under Article III of the Constitution to make exceptions to the appellate jurisdiction of the Supreme Court and to remove lower court jurisdiction. This proposal, though endorsed by a commentator as sound as Arnold Beichman, is, as always, a nonstarter, and merely diverts some Congressmen from addressing the problem seriously. If the Supreme Court allowed its jurisdiction over a particular subject to be abolished, which is by no means a certainty, the result would be to leave jurisdiction in the state courts. Article VI provides that "the Judges in every State shall be bound" by the Constitution and laws of the United States, and there is no power in either Congress or the state legislatures to take away that jurisdiction. The result, if Congress acted and the Court acquiesced, would be the same as under the constitutional amendment suggested by Michael Greve, except that state courts could rely upon both the federal and state constitutions to invent, as the courts of Massachusetts and Hawaii have under their state constitutions, a right to same-sex marriage. Amending the United States Constitution to save it and marriage from freebooting judges would be extremely difficult in the best of circumstances, but it is made immeasurably more difficult because so many people ask: How does homosexual marriage affect me? What concern is it of mine or of anybody else what homosexuals do? The answer is that the consequences of homosexual marriage will affect you, your children, and your grandchildren, as well as the morality and health of the society in which you and they live. Studies of the effects of same-sex marriage in Scandinavia and the Netherlands by Stanley Kurtz raise at least the inference that when there is a powerful (and ultimately successful) campaign by secular elites for homosexual marriage, traditional marriage is demeaned and comes to be perceived as just one more sexual arrangement among others. The symbolic link between marriage, procreation, and family is broken, and there is a rapid and persistent decline in heterosexual marriages. Families are begun by cohabiting couples, who break up significantly more often than married couples, leaving children in one-parent families. The evidence has long been clear that children raised in such families are much more likely to engage in crime, use drugs, and form unstable relationships of their own. These are pathologies that affect everyone in a community. Homosexual marriage would prove harmful to individuals in other ways as well. By equating heterosexuality and homosexuality, by removing the last vestiges of moral stigma from same-sex couplings, such marriages will lead to an increase in the number of homosexuals. Particularly vulnerable will be young men and women who, as yet uncertain of and confused by their sexuality, may more easily be led into a homosexual life. Despite their use of the word "gay," for many homosexuals life is anything but gay. Both physical and psychological disorders are far more prevalent among homosexual men than among heterosexual men. Attempted suicide rates, even in countries that are homosexual-friendly, are three to four times as high for homosexuals. Though it is frequently asserted by activists that high levels of internal distress in homosexual populations are caused by social disapproval, psychiatrist Jeffrey Satinover has shown that no studies support this theory. Compassion, if nothing else, should urge us to avoid the consequences of making homosexuality seem a normal and acceptable choice for the young. There is, finally, very real uncertainty about the forms of sexual arrangements that will follow from homosexual marriage. To quote William Bennett: "Say what they will, there are no principled grounds on which advocates of same-sex marriage can oppose the marriage of two consenting brothers. Nor can they (persuasively) explain why we ought to deny a marriage license to three men who want to marry. Or to a man who wants a consensual polygamous arrangement. Or to a father to his adult daughter." Many consider such hypotheticals ridiculous, claiming that no one would want to be in a group marriage. The fact is that some people do, and they are urging that it be accepted. There is a movement for polyamory--sexual arrangements, including marriage, among three or more persons. The outlandishness of such notions is no guarantee that they will not become serious possibilities or actualities in the not-too-distant future. Ten years ago, the idea of a marriage between two men seemed preposterous, not something we needed to concern ourselves with. With same-sex marriage a line is being crossed, and no other line to separate moral and immoral consensual sex will hold.

We are in a time of deep moral confusion about sex and particularly about homosexuality. Consider: the Catholic Church is berated for putting homosexual men in charge of boys while the Boy Scouts are punished for not putting homosexual men in charge of boys. At the same time, as Mary Eberstadt points out, the rightness or wrongness of pedophilia (involving boys, not girls) is "demonstrably not yet settled within certain parts of the gay rights movement." Eberstadt reports that the taboo against pedophilia is weakening. Some homosexual activists, such as the North American Man/Boy Love Association, are working to that end. Nothing, one is tempted to say, is any longer unimaginable, and what is imaginable is doable. Is passing the FMA worth the energy and the political risk for politicians, especially when it may well be a losing battle? Social conservatives, Max Boot notes, have been fighting and losing culture wars for decades. That is obvious, but his recommendation that we acknowledge defeat on the issue of homosexual marriage and move on to other issues is bad advice. This issue seems to me so important that a fight against it, whatever the odds, is mandatory. Abandoning resistance here might nevertheless be seen by some as an intelligent strategy, but that would be true only if there were a more defensible line to fall back to. It is difficult to see what line that might be. The cultural left, including homosexual activists, will keep pressing for more. The BBC, as a foretaste of what is to come, has ordered its staff not to use the words "husband" and "wife," since that might seem to indicate that marriage is preferable to other sexual arrangements. In Canada, a pastor has been charged under a hate speech law for publishing instances of the Bible's disapproval of homosexuality. Church leaders who imagine they can negotiate immunities from laws applying to the rest of the population are almost certainly fooling themselves. Liberal autonomists have little or no respect for religion, except to the extent that some clergy can be recruited to advance their causes in the name of religion. The Catholic Church will be a particular target of attack, as it already has been in California, where the state supreme court ruled that Catholic Charities had to provide prescription contraceptive coverage in its health insurance plan for employees. Boot's advice to cut and run on this issue thus ignores the fact that there are fewer and fewer places to run to. The autonomous drive toward cultural degradation will not leave us in peace, ever. Boot may be right to predict that Republican support for a marriage amendment would make the party "look 'intolerant' to soccer morns whose views on this subject, as on so many others, will soon be as liberal as elite opinion already is." But if that is true, it means that we will lose all the cultural battles of the future, as the soccer moms trail along behind elite opinion. If Republicans refuse to fight cultural battles on that reasoning, they will look cowardly to conservatives, which could be equally disastrous. It would be better to try to convince the soccer moms, who would not be at all happy if their children and grandchildren cohabited instead of marrying, or "married" persons of the same sex. Finally, it is worth considering that a vigorous campaign for the FMA could have a salutary effect on the American judiciary. The debates, win or lose, might also lead the public to a more realistic view of the courts. As William E Buckley, Jr. has written on another occasion, "The public--under the tutelage of its moral and intellectual leaders--is being trained, as regards the Supreme Court of the United States when it is interpreting the Constitution, to accept its rulings as if rendered ex cathedra, on questions of faith and morals." Thus, a constitutional amendment "done athwart the will of the Court for the first time in modern history ... would deliver the Republic from a presumptuous ethical-legal tribunal." "The public," Buckley argues, "needs to experience a release from a subtle thralldom to judicial morality." Quite right. Conservative opinion leaders must recognize that the illegitimacy of the rampant judicial constitutionmaking that is before their eyes changes all the old rules about the place of amendments in our polity. The comfortable shibboleths about a heavy presumption against amending the Constitution no longer have much relevance to the brute facts of our political life. So profound is the departure from a republican form of government that the presumption must now be in favor of amending the Constitution whenever the Court runs wild. Homosexual marriage presents just such an occasion, but if our politicians wait until the Supreme Court has done the inevitable, it will probably be too late for an effective response. Catastrophes ought not to be faced in a spirit of resignation. This article appeared in the August 1, 2004, First Things: A Monthly Journal of Religion and Public Life.

Robert H. Bork is a Distinguished Fellow of Hudson Institute.

A War the Courts Shouldn't Manage

January 27, 2005 by Robert H. Bork, David B. Rivkin Jr. As speculation mounts about President Bush's nominees to the federal judiciary, and particularly to the Supreme Court, one factor that should be of paramount importance is too often overlooked. Curbing or reversing the Supreme Court's usurpation of so many domestic issues is crucial. But perhaps even more important is avoiding judicial micromanagement of America's war against radical Islamic terrorists. Already there are disturbing signs of judicial overreaching that is constitutionally illegitimate and, in practical terms, potentially debilitating. The vast majority of war opponents and attorneys for captured terrorists are pressing for a full-fledged criminal law model never before applied to enemy combatants. Realizing that Congress and the president will not adopt their position, these litigants are resorting to the federal courts. Real abuses that inevitably occur in war, as well as in peacetime prisons, are being punished by our military, but that does not assuage critics who have an agenda other than justice. They allege that the abuses stem from the administration's legal analysis and that the analysis is contrary to the Constitution and to international norms. That is wrong on both counts. A pair of confusing Supreme Court decisions handed down June 28 plowed the ground for astounding lowercourt activism.Hamdi v. Rumsfeld, involving a petition for habeas corpus on behalf of a U.S. citizen held by the military as an enemy combatant fighting in Afghanistan, was a qualified victory for the government. The court approved the use of military tribunals but held that Yaser Esam Hamdi must have an opportunity to contest his status as an enemy combatant. It left unclear how that opportunity could be exercised, and it is difficult to see how it could be without calling witnesses from the combat zone, a procedure that would divert American soldiers from waging war. Rasul v. Bush, on the other hand, was a disaster for the war effort. Aliens held at Guantanamo Bay, not a part of the United States or within the jurisdiction of any federal court, were held to have a right to a habeas petition. The result would seem to be that captured alien combatants held by the U.S. military anywhere in the world can henceforth litigate their status in federal courts. Some lower federal courts have not resisted the temptation to insert themselves further into the conduct of the war. In doing so, they have interfered with the war effort while fostering the false impression that the executive branch is trampling on constitutional liberties. The district court's decision in Hamdan v. Rumsfeld (2004) is a prime example. The judge applied the Geneva Conventions in contradiction of the legal framework laid down in Hamdi, misread the conventions and severely encroached upon the president's war powers. In Omar Abu Ali v. Ashcroft (2004), another district court outdid the Supreme Court by finding that it had, at least potentially, authority to determine the legality of a foreign government's detention of an accused dual-nationality terrorist because of an allegation that the United States had prompted the detention. Nearly 70 years ago, the court held in a famous decision (Curtiss-Wright Export Corp. v. United States) that the executive branch's extensive prerogatives in foreign affairs are grounded in its unique expertise, information and unitary nature. Courts have neither the constitutional authority nor the expertise and information to override the president's determinations on issues such as whether we are in armed conflict or what kind of anti-terrorist cooperation we should engage in with foreign governments. For obvious reasons, the executive cannot share all the relevant information with judges. Nor has the judiciary the necessary unitary nature, unless every case is decided by the Supreme Court. Thus, in addition to fighting legal battles in court, the administration would be well-advised to make a far stronger public case for its detention policies, which are designed not only to prevent enemy combatants from returning to fight against us but also to obtain intelligence that might save the lives of American soldiers and civilians as well as shorten the war. Although current detention and interrogation procedures can surely be improved, and additional safeguards against abuses should be adopted, these ought to be matters for the political branches. Freezing policies through constitutional rulings should be a last resort. The executive and Congress, as circumstances change and experience accumulates, can debate and resolve in a flexible manner the policy imperatives of individual liberty and America's reputation overseas, on one hand, vs. the demands of collective safety. But in doing so they must avoid trampling on the president's constitutional prerogatives. Congress should not lay down detailed prescriptions on what interrogation techniques are appropriate. And it should resist the temptation to grandstand; passing exhortations against torture is not the way to proceed. Sensitivity to these matters and the crucial but limited role of the judiciary should be taken into account in the choice of nominees to the courts and in the confirmation process. Too much is riding on the outcome of this war -- ultimately, perhaps, the survival of Western societies -- to choose judges who are unaware of the complexities of what is at stake.

This article appeared in The Washington Post on January 21, 2005.

Robert H. Bork is a Distinguished Fellow of Hudson Institute. David B. Rivkin Jr. is a Washington lawyer who served in the Justice Department in the Reagan and George H.W. Bush administrations.

Their Will Be Done

July 5, 2005 by Robert H. Bork What do the nomination of a replacement for Sandra Day O'Connor, constitutional law, and moral chaos have to do with one another? A good deal more than you may think. In Federalist 2, John Jay wrote of America that "Providence has been pleased to give this one connected country to one united people -- a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs . . . ." Such a people enjoy the same moral assumptions, the cement that forms a society rather than a cluster of groups. Though Jay's conditions have long been obsolete, until recently Americans did possess a large body of common moral assumptions rooted in our original Anglo-Protestant culture, and expressed in law. Now, however, a variety of disintegrating influences are undermining that unanimity, not least among them is the capture of constitutional law by an extreme liberationist philosophy. America is becoming a cacophony of voices proclaiming different, or no, truths. Alexis de Tocqueville observed that "If each undertook himself to form all his opinions and to pursue the truth in isolation down paths cleared by him alone, it is not probable that a great number of men would ever unite in any common belief. . . . [W]ithout common ideas there is no common action, and without common action men still exist, but a social body does not." Contrast Tocqueville with Justices Harry Blackmun and Anthony Kennedy. Blackmun wanted to create a constitutional right to homosexual sodomy because of the asserted "'moral fact' that a person belongs to himself and not others nor to society as a whole." Justice Kennedy, writing for six justices, did invent that right, declaring that "At the heart of [constitutional] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Neither of these vaporings has the remotest basis in the actual Constitution and neither has any definable meaning other than that a common morality may not be sustained by law if a majority of justices prefer that each individual follow his own desires. Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills. Yet when it rules in the name of the Constitution, whether it rules truly or not, the Court is the most powerful branch of government in domestic policy. The combination of absolute power, disdain for the historic Constitution, and philosophical incompetence is lethal. The Court's philosophy reflects, or rather embodies and advances, the liberationist spirit of our times. In moral matters, each man is a separate sovereignty. In its insistence on radical personal autonomy, the Court assaults what remains of our stock of common moral beliefs. That is all the more insidious because the public and the media take these spurious constitutional rulings as not merely legal conclusions but moral teachings supposedly incarnate in our most sacred civic document. That teaching is the desirability, as the sociologist Robert Nisbet put it, of the "break-up of social molecules into atoms, of a generalized nihilism toward society and culture as the result of individualistic hedonism and the fragmenting effect of both state and economy." He noted that both Edmund Burke and Tocqueville placed much of the blame for such developments on the intellectual class -- in our time dominant in, for example, the universities, the media, church bureaucracies, and foundation staffs -- a class to which judges belong and to whose opinions they respond. Thus ever-expanding rights continually deplete America's bank of common morality. Consider just a few of the Court's accomplishments: The justices have weakened the authority of other institutions, public and private, such as schools, businesses, and churches; assisted in sapping the vitality of religion through a transparently false interpretation of the establishment clause; denigrated marriage and family; destroyed taboos about vile language in public; protected as free speech the basest pornography,

including computer-simulated child pornography; weakened political parties and permitted prior restraints on political speech, violating the core of the First Amendment's guarantee of freedom of speech; created a right to abortion virtually on demand, invalidating the laws of all 50 states; whittled down capital punishment, on the path, apparently, to abolishing it entirely; mounted a campaign to normalize homosexuality, culminating soon, it seems obvious, in a right to homosexual marriage; permitted racial and gender discrimination at the expense of white males; and made the criminal justice system needlessly slow and complex, tipping the balance in favor of criminals. Justice O'Connor, a warm, down-to-earth, and very likeable person, joined many, though not all, of these bold attempts to remake America. Whatever one may think of these outcomes as matters of policy, not one is authorized by the Constitution and some are directly contrary to it. All of them, however, are consistent with the left-liberal liberationist impulse that advances moral anarchy. Democratic senators' filibusters of the president's previous judicial nominees demonstrate liberals' determination to retain the court as their political weapon. They claim that conservative critics of the Court threaten the independence of the judiciary, as though independence is a warrant to abandon the Constitution for personal predilection. The Court's critics are not angry without cause; they have been provoked. The Court has converted itself from a legal institution to a political one, and has made so many basic and unsettling changes in American government, life, and culture that a counterattack was inevitable, and long overdue. If the critics' rhetoric is sometimes overheated, it is less so than that of some Democratic senators and their interest-group allies. The leaders of the Democratic Party in the Senate are making it the party of moral anarchy, and they will fight to keep the Court activist and liberal. The struggle over the Supreme Court is not just about law: it is about the future of our culture. To restore the Court's integrity will require a minimum of three appointments of men and women who have so firm an understanding of the judicial function that they will not drift left once on the bench. Choosing, and fighting for, the right man or woman to replace Justice O'Connor is the place to start. That will be difficult, but the stakes are the legitimate scope of self-government and an end to judicially imposed moral disorder. This article appeared in the Wall Street Journal on July 5, 2005.

Robert H. Bork is a Distinguished Fellow of Hudson Institute.

Slouching Towards Miers

October 19, 2005 by Robert H. Bork With a single stroke--the nomination of Harriet Miers--the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work--for liberals. There is, to say the least, a heavy presumption that Ms. Miers, though undoubtedly possessed of many sterling qualities, is not qualified to be on the Supreme Court. It is not just that she has no known experience with constitutional law and no known opinions on judicial philosophy. It is worse than that. As president of the Texas Bar Association, she wrote columns for the association's journal. David Brooks of the New York Times examined those columns. He reports, with supporting examples, that the quality of her thought and writing demonstrates absolutely no "ability to write clearly and argue incisively." The administration's defense of the nomination is pathetic: Ms. Miers was a bar association president (a nonqualification for anyone familiar with the bureaucratic service that leads to such presidencies); she shares Mr. Bush's judicial philosophy (which seems to consist of bromides about "strict construction" and the like); and she is, as an evangelical Christian, deeply religious. That last, along with her contributions to prolife causes, is designed to suggest that she does not like Roe v. Wade, though it certainly does not necessarily mean that she would vote to overturn that constitutional travesty. There is a great deal more to constitutional law than hostility to Roe. Ms. Miers is reported to have endorsed affirmative action. That position, or its opposite, can be reconciled with Christian belief. Issues we cannot now identify or even imagine will come before the court in the next 20 years. Reliance upon religious faith tells us nothing about how a Justice Miers would rule. Only a commitment to originalism provides a solid

foundation for constitutional adjudication. There is no sign that she has thought about, much less adopted, that philosophy of judging. Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers's performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. Given the adventurousness of this court, that's just about every issue imaginable. What we can expect in all probability is platitudes about not "legislating from the bench." The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing. But that is only part of the damage Mr. Bush has done. For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern from the relevant materials--debates at the Constitutional Convention, the Federalist Papers and Anti-Federalist Papers, newspaper accounts of the time, debates in the state ratifying conventions, and the like--the principles the ratifiers understood themselves to be enacting. The remainder of the task is to apply those principles to unforeseen circumstances, a task that law performs all the time. Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges. By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of "Don't ask, don't tell" admonition to would-be judges. It is a blow in particular to the Federalist Society, most of whose members endorse originalism. The society, unlike the ACLU, takes no public positions, engages in no litigation, and includes people of differing views in its programs. It performs the invaluable function of making law students, in the heavily left-leaning schools, aware that there are respectable perspectives on law other than liberal activism. Yet the society has been defamed in McCarthyite fashion by liberals; and it appears to have been important to the White House that neither the new chief justice nor Ms. Miers had much to do with the Federalists. Finally, this nomination has split the fragile conservative coalition on social issues into those appalled by the administration's cynicism and those still anxious, for a variety of reasons, to support or at least placate the president. Anger is growing between the two groups. The supporters should rethink. The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality). This George Bush, like his father, is showing himself to be indifferent, if not actively hostile, to conservative values. He appears embittered by conservative opposition to his nomination, which raises the possibility that if Ms. Miers is not confirmed, the next nominee will be even less acceptable to those asking for a restrained court. That, ironically, is the best argument for her confirmation. But it is not good enough. It is said that at La Scala an exhausted tenor, after responding to repeated cries of "Encore," said he could not go on. A man rose in the audience to say, "You'll keep singing until you get it right." That man should be our model.

This article appeared in the Wall Street Journal on October 19, 2005.

Robert H. Bork is a Distinguished Fellow of Hudson Institute.

Barak's Rule
December 28, 2006 by Robert H. Bork The Judge in Democracy by Aharon Barak, Princeton University Press, 360 pp. The Judge in a Democracy, by Aharon Barak, until recently president of the Supreme Court of Israel, advances a provocative argument about the proper role of the judiciary. The book requires attention less

because of its thesis, which adds little to his discussions of the subject, than because of Baraks impact on Israeli law and his international influence, both of which strike me as regrettable. Barak celebrates the growth in virtually all Western nations of judicial power at the expense of other governmental and private institutions. He notes approvingly that since the end of World War II, the importance of the judiciary relative to the other branches of the state has increased. We are witnessing a strong trend toward the constitutionalization of democratic politics. The phrase is misleading. To constitutionalize democratic politics is to remove them from control by the people and turn politics over to judges. Once an issue is constitutionalized, democratic politics ends. There is a strong and all-pervasive suspicion of democracy in this book, as indeed there was in Baraks performance on the bench. He seeks to deny the authoritarian nature of the trend he applauds by re-defining democracy, which consists, according to Barak, of two parts: Formal democracy (the rule of the people through elected representatives) and substantive democracy (including an independent judiciary, the rule of law, and human rights). Judicial vetoes of majority decisions may or may not be proper in a given case, but one thing they are not is a form of democracy. They are a check on democracy. Baraks assertion that both the peoples decisions and the frustration of those decisions are democracy obliterates the distinction between rule by elected representatives and rule by judges. This, in turn, serves to justify ever-increasing judicial power. The constitutionalization of democratic politics means that courts will govern when there is no constitutional support for their actions. That is frequently the case in the United States and, as the rulings of Baraks court show, is even more so the case in Israel. Barak elaborates the functions of a judge in a way that makes explicit the wide-ranging legislative power he claims for the judiciary. He asserts that the judge has two major functions: (i) Bridging the gap between law and society, and (ii) protecting the constitution and democracy. As for gap-filling, it often turns out to be disingenuous politics: The judge may give a statute new meaning, a dynamic meaning, that seeks to bridge the gap between law and lifes changing reality without changing the statute itself, writes Barak. The statute remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs. In other words, judges, not elected representatives, decide what are new social needs and then change the meaning of the legislatures words to implement their insight; the legislature is not consulted. Now, it is one thing to say that a statute (or a constitution) enacts a principle that must be applied to unforeseen circumstances; it is quite another, however, to say that the judge may leave the legislatures words intact but change their meaning in order to introduce a principle that legislators never intended. The classic example of the former case is the Fourth Amendment to the United States Constitution, which forbids unreasonable searches and seizures by government. Ratified at a time when a mans home and office were to be protected from invasion by a constable, the modern Supreme Court had little difficulty in deciding that placing an electronic listening device on personal premises fell within the same rationale. On the other hand, when the court invented a general, undefined right of privacy and made abortion a constitutional right, it wrote an entirely new principle into the Constitution without changing the words of that charter. There is, simply, no excuse for that. If the public thinks that freedom to abort a pregnancy is a new social need, it has only to enact a statute. Yet the court -- much like its Israeli counterpart -- had little patience with what it regarded as the retrograde views of the electorate. Consequently, it filled gaps, which is to say it rewrote the Constitution. Barak deals with another example of changing the law while leaving the words intact. In 1986, the United States Supreme Court held that a state could constitutionally make homosexual intercourse a crime. Seventeen years later, it overruled that decision and instead made homosexual intercourse a fundamental right. The difference between the two decisions, Barak writes, did not reflect a constitutional change. Rather, the change that occurred was in American society, which learned to recognize the nature of homosexual relationships and was prepared to treat them with tolerance. If words have any meaning at all, it is preposterous to say that a constitution remains unchanged when one constitutional decision overrules a prior one such that what had been subject to criminal punishment becomes instead a fundamental right. In the United States, moreover, as Barak surely knows, the federal system places almost all decisions about morality in the hands of the various states. Texas, whose statute was declared unconstitutional, comprised the only constitutionally relevant society. There is no conceivable constitutional reason why Texas moral choice should be submerged in, and cancelled by, an abstraction called American society. In truth, what changed between the two decisions on homosexuality was simply the membership of the court. The new majority was, and presumably still is, waging a campaign to

normalize homosexuality. Call it constitutionalizing politics if you like, but there is nothing democratic about it. The duty to protect the constitution and democracy, the second role assigned judges by Barak, in his hands turns out to be something very different: A claim of judicial power to create a constitution the people did not choose, and then to protect the judge-made charter against the legitimate claims of democracy. The Israeli Supreme Court, he writes, held that the two Basic Laws passed in 1992, Basic Law: Human Dignity and Basic Law: Freedom of Occupation, are the supreme law of the land and constitute part of Israels constitution. [The case] Mizrahi Bank subjects any new statute to judicial review under these Basic Laws. I called this development a constitutional revolution. (Emphasis mine.) Yet as Evelyn Gordon has written, the assertion that the Basic Laws had constitutional status empowering the Israeli court to strike down contradictory legislation is dubious in itself, given that the Basic Laws underwent no constitutional ratification process and were approved by a mere quarter of the Knesset. (The small vote is probably accounted for by the fact that it was taken in the middle of the night, and nobody suggested that the revolutionary change of giving the power to override both legislative and executive acts to the courts was in fact taking place.) In addition, Baraks constitutional revolution sits rather uncomfortably next to his statement a few pages later that The court is authorized to interpret the constitution, but it is not authorized to create a constitution. Two other features of the judges constitution require notice. First, judges may change the constitution at will, but the people and their elected representatives may not; the judicial creation of the Israeli constitution is an open-ended process. Barak asserts that, even without any change in the Basic Laws and statutes, judges may insert new fundamental principles. He quotes approvingly an opinion by another judge that the role of the state is to fulfill the will of the people and to give effect to norms and standards that the people cherish. The question goes unanswered: If the people cherish these new fundamental principles so much, why havent they enacted them as law? The judges answer is unsettling: Not all people qualify as the people. New fundamental principles require that a process of common conviction must first take place among the enlightened members of society regarding the truth and justice of those norms and standards before we can say that a general will has been reached that these should become binding with the approval and sanction of the positive law. (Emphasis mine.) The general will consists of the opinions dominant within the intellectual class at any given moment, so that the people who do the cherishing are academics, journalists, intellectuals, and, of course, judges. Judges will decide when a general will has ripened sufficiently, and then, without further ado, convert the norms and standards into positive law. Despite this, Barak is at pains to assure us that It is not his own subjective values that the judge imposes on the society in which he operates. Rather, he must balance various conflicting interests objectively and come to a conclusion. The question is not what the judge wants but what society needs. Since voiding a statute requires overriding the will of the people as expressed through their elected representatives, what a judge thinks society needs is almost certainly what a majority of the people in that society do not want. It is, in any event, incorrect to suppose that a societys need is a fact that can be determined by an objective balancing of interests. In truth, the most important interests are likely to be conflicting value judgments. How, for instance, does a judge know whether a society needs freedom of abortion, some degree of regulation, or a prohibition of abortion altogether? How can a judge determine whether his or her society needs a constitutional right to homosexual marriage? How does he decide objectively whether religious education in state-supported schools should be required, made optional, or prohibited? The answer, of course, is that the judge does not, and cannot, know any of these things, though he may have strong feelings about them. Because the judge is, by definition, operating without guidance from positive law, it is almost certain that his personal opinions will turn out to be what society needs. Though Barak would deny it, The Judge in a Democracy is a textbook for judicial activists. I have written that a judge is an activist if he reaches results or announces principles that cannot plausibly be derived from the constitution he cites. Here Barak responds that my description is not of an activist judge but rather of a judge who is not worthy of the position he occupies. I agree that such a man is unworthy to be a judge, but he is unworthy precisely because he is an activist. I do not see how a judge can, in accordance with Baraks philosophy, change the meaning of a statute without changing its words, or introduce new fundamental principles into a constitution without being either an activist in my terms, or unworthy in Baraks. Barak goes on to say that None of us may turn our personal beliefs into the law of the land. But I think it is clear that the judge who follows Baraks prescriptions cannot avoid legislating, and it is highly unlikely that he will legislate beliefs other than his own.

Indeed, Baraks impatience with originalism demonstrates that his philosophy is, in fact, activist. Why can some enlightened democratic legal systems (such as those of Canada, Australia, and Germany) extricate themselves from the heavy hands of intentionalism and originalism in interpreting the constitution, he asks, while constitutional law in the United States remains mired in these difficulties? Originalism simply means that judges must attempt to apply the principles of the constitution as they were understood by the men who made the constitution law. When a judge departs from originalism, he necessarily legislates; he lays down law that the constitution does not contain. Judges like Barak and his counterparts in the United States are the very reason Americans continue to debate the issues Barak would have them ignore. Such judges have enlisted on the elite side of the trans-national culture war. And while elite causes rarely win elections, they rarely lose in the American Supreme Court, just as the enlightened members of society tend to do well in the Israeli Supreme Court. It is true that Israeli, Canadian, and many American judges have extricated themselves from originalism, and the result has been overweening judicial branches. I count it as a virtue that the United States remains mired in the originalism debate. After all, a primary purpose of originalism is to hold judges to a standard, or a source of law external to themselves, thus preserving a democratic order -- the rule of law rather than the rule of judges. In this, recent appointments to our court suggest the possibility of a return to a legitimate jurisprudence. By contrast, built into Baraks jurisprudence are so many ways to arrive at any conclusion judges like that there is not space to analyze them all here. The actual decisions of the court demonstrate what Baraks freewheeling approach means in practice. The results range from ludicrous to officious to dangerous. To wit: 1. The Knesset legislated local authority to limit or forbid the sale of pork. But President Barak and eight other justices held that there is a constitutional right not only to eat pork, but also to obtain ones pork without inconvenience. Thus, in an impressive show of disregard for a piece of Knesset legislation, the court ruled that a locality wishing to ban the sale of pork must examine the availability of stores selling pork nearby, the means of transportation to those stores, and the practicability of using that transportation. Only, they concluded, if this examination reveals that the alternatives are feasible may pork sales indeed be banned in a given locality. 2. The court decided that it has the authority to rule on whether welfare cuts are constitutional, effectively creating a constitutional right to a minimum income to be determined by the court -- a decision that flew in the face of the manifest will of the Knesset that no such right does or should exist. Thus has the court assumed the power to tell the elected branches on what they must spend, and how much, establishing the principle that, in fact, it is judges, and not legislators, who ultimately control Israels budget. 3. A majority of the court held that the government cannot bar immigration from hostile areas during wartime because doing so would infringe on the right of Israeli Arabs to marry Palestinians and to bring them into Israel, rather than living elsewhere. Although the court upheld, six to five, the Knesset law banning Palestinians below a certain age from immigrating on account of their being a security risk; one judge declared explicitly that he had sided with the majority only because the law was due to expire shortly anyway, and he felt it sufficient to warn the Knesset that, barring substantial changes, the court would overturn the law next time. This, again, despite the Knessets explicit rejection of a citizens right to marry whomever he or she pleases. Thus is national security -- even in wartime -- superseded by an invented personal right that the legislature had rejected. 4. While upholding the governments authority to build a separation fence, the court nevertheless overruled the armys judgment on the purely military issue of the location of parts of the fence, because of disagreement about the minimally adequate level of security. Barak once said that the court has jurisdiction to judge the deployment of troops in wartime; this decision brings it closer to that. 5. The court ruled that a government official could be discharged or denied promotion on the basis of what he said during a published interview. Indeed, the court itself proposed to investigate whether the officials words rendered him unfit for appointment. Without any legislative mandate or guidance -- and in stunning defiance of the fundamental democratic principle of free speech -- the court thus determined to make the law as to an appointees moral character. This unprecedented role as censor is simply unknown in other democracies. 6. Faced with a possible reform of immigration policy by the Knessets adoption of a new Basic Law on the subject, President Barak wrote in an opinion that the court had the authority to invalidate a Basic Law if the justices thought it contrary to Israels Jewish and democratic character. In a word, Baraks court can turn ordinary legislation into a constitution, force it on the nation, and then

announce that it can prevent any democratic amendment. In this, Barak surely establishes a world record for judicial hubris. As these and other cases demonstrate, it would appear that Barak is unconcerned that the rule of law -which he praises as part of substantive democracy -- is in fact being replaced by the rule of judges, a trend to which he himself is the major contributor. Perhaps he believes that judges are simply intellectually and morally superior to other actors in the nations politics, and thus judicial authoritarianism is necessary. As he explains, a branch of government should not judge itself. It is therefore appropriate that the final decision about the legality of the activities of the legislative and executive branches should be taken by a mechanism external to those branches, that is, the judiciary. Yet the judicial branch is properly subject to no such external mechanism, because of their [the judges] education, profession, and role, and because they are trained and accustomed to dealing with conflicts of interest. Judges may be trusted, moreover, since they are not fighting for their own power. Surely anyone familiar with Baraks record will see the irony in that statement. Alexander Hamilton, in Federalist 78, wrote that the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution, because it has no influence over either the sword or the purse. Hamilton badly underestimated the capacity of the Supreme Court to go well beyond its constitutional mandate, but the Israeli court, by its assertion of the power to control both sword and purse, may well be the branch most dangerous to the political rights of the nation. This review originally appeared in the Winter 2007 edition of Azure. Robert H. Bork is a Distinguished Fellow of Hudson Institute.

Thanks A lot
From the April 16, 2007 National Review April 16, 2007 by Robert H. Bork Once more the lunacies of America's rights-crazed culture are on display in our highest court -- disguised, of course, as a serious civil-liberties issue. A high school in Juneau, Alaska, released students from class to watch the 2002 Olympic Torch Relay. As the torch runner passed, Joseph Frederick, a senior and apparently an apprentice wisenheimer, attempted, along with some friends, to attract television cameras by unfurling a 14-foot banner with the words "BONG HITS 4 JESUS." Deborah Morse, the school principal, took the banner away and awarded Frederick a ten-day suspension. Inevitably, he sued, alleging a violation of his First Amendment right to freedom of speech. The school board upheld Morse, as did a federal district court, but a three-judge panel of the Ninth Circuit Court of Appeals reversed. The nine justices of the Supreme Court then accepted the case for review under its official title of Morse v. Frederick, though it will undoubtedly go down in history as "the great bong case." There is a certain madcap disproportionality in all this. An insignificant five-year-old fracas has now engrossed the time and energy of 13 federal judges as well as the principal and the school board. It is a truism that we live in a culture riddled and fragmented by ever-proliferating rights, but that this minor instance of school discipline should be treated as a crucial civil-rights issue suggests that we have lost our balance and even our sense of humor. Deploying the federal judicial system in full regalia for the MorseFrederick squabble is like hunting field mice with an elephant gun. It would be merely laughable if it were not possible that basic principles of the First Amendment will be put in play and further deformed. There is little consensus about the proper result in this case. Liberals and those hybrids known as libertarians generally favor the further expansion of the category of protected utterances. Conservatives can be found on both sides. My own view is that Frederick's complaint should have been dismissed out of hand. The speech clause took a wrong turn some time back, and, in cases like this, it very likely does more harm than good to both law and education. The Ninth Circuit panel saw the issue as "whether a school may, in the absence of concern about disruption of educational activities, punish and censor non-disruptive, off-campus speech by students during schoolauthorized activities because the speech promotes a social message contrary to the one favored by the school. The answer under controlling, long-existing precedent is plainly 'No.'" The issue, as so framed, is a

bit peculiar. Joseph Frederick may have been off campus in some sense, but the court of appeals itself said the school could have supervised the students more closely had it chosen to: "Frederick was a student, and school was in session." But it is not my purpose to quibble about such oddities. The court of appeals thought this case was controlled by the precedent of Tinker v. Des Moines Independent Community School District (1969), which held that high-school students protesting the war in Vietnam had a First Amendment right to wear black armbands in school. The Court said that "the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible." But in order to reach the conclusion that Tinker was dispositive, the Ninth Circuit judges had to distinguish it from Bethel School District No. 403 v. Fraser (1986), in which the Supreme Court held that a high-school student did not have a First Amendment right to give a sexually suggestive speech in a school assembly. The panel said, "The phrase 'Bong Hits 4 Jesus' may be funny, stupid, or insulting, depending on one's point of view, but it is not 'plainly offensive' in the way sexual innuendo is." This is the first and the less important flaw of current doctrine. How can three judges know that no significant number of students or teachers at the Juneau high school find the reference to Jesus and marijuana "plainly offensive"? For that matter, how can any court know whether black armbands worn to school to protest a war in which the United States is engaged are less offensive than sexual innuendo? In all likelihood, what a particular group actually finds offensive will be less important than what a few judges think people should or should not find offensive. It should be unacceptable that judges who have inadequate knowledge of what took place some years ago issue rulings and then depart the scene, leaving others to bear the burden of the long-term outcomes. Justice Hugo Black's dissent in Tinker looks better and better. Black, a fierce advocate of free speech and expansive First Amendment protections, nevertheless wrote with considerable indignation that the Court had taken from educational officials "the power to control pupils." He rejected the notion that teachers and students can use schools as platforms for speech. In my view, what has gone wrong in Tinker, in much of free-speech jurisprudence, and now in Morse began, primarily in the 1920s, with the storied but overvalued dissents of Justices Oliver Wendell Holmes Jr. and Louis Brandeis. Holmes and Brandeis held that, in assessing the dangers of speech advocating violence and lawbreaking, judges had to estimate the danger posed by each instance of such speech. Thus, when a radical called for the violent overthrow of the government, the judge had to ask what danger that specific speech or pamphlet posed and not, as the Court majorities of the time insisted, the danger posed by many such calls. Ultimately, after much uncertainty, a unanimous Court adopted the essentials of the Holmes-Brandeis position in Brandenburg v. Ohio (1969), overturning the conviction of a Ku Klux Klan leader for inciting racial violence. The guarantees of free speech and free press, the Court said, in an opinion astounding for its distance from reality, do not permit government to outlaw the advocacy of force and violence except where the advocacy is directed to inciting or producing imminent lawless action and is likely to succeed in doing so. This is the test applied in Morse, albeit in a much less threatening context, and the objections to it are the same. One speech advocating racial violence may not present an immediate danger, but what if it is one of a thousand such speeches? One bong banner may not disrupt the school's educational efforts, but what if similar acts become common in the school? This is the famous "broken windows" problem. Two or three or a half-dozen broken windows create no serious threat in themselves, but left unfixed they convey the message that nobody cares much. Authority is marginalized, and crimes of greater seriousness follow. When Joseph Frederick gets away with his crude behavior, other students notice, and the school is well on the way to problems with discipline. The court of appeals noted that there was other rowdy conduct among the students -- snowballs and flying bottles -- but said such behavior was not traceable to Frederick's bong banner. The court could not possibly be sure of that. The banner, the snowballs, and the flying bottles are "broken windows." Principals and teachers ought to be free to deal with minor infractions of good order even if, viewed in isolation, they do not threaten the educational mission. Education in the United States is concededly in poor condition. There was a time when public schools did a far better job, and that time was characterized by school discipline without recourse to the ACLU and the new and burgeoning mass of constitutional rights. I went for three years to a public high school where behavioral standards were maintained, at least during school hours. I was suspended for saying "Thanks a lot" to a teacher in a sarcastic tone. It never occurred to me or anyone else to go to court. And the result

was good for the school, for the other students, and, not least, for me. It is unfortunate in the extreme that law is being forced into every institution and social relationship. When law attacks authorities within institutions, it weakens those institutions, deprives them of their integrity, and makes them less effective. No doubt the obsession with rights has spread to the general population, which is all the more reason for the courts to step back and stop feeding the rights paranoia. If the Supreme Court holds for Deborah Morse, no harm will be done to Joseph Frederick or the law, and a process of rethinking the First Amendment, and reinvigorating schools and other institutions, may begin.

Robert H. Bork is a Distinguished Fellow of Hudson Institute.

4+1
From the July 30, 2007 National Review August 22, 2007 by Robert H. Bork Conservatives are exulting in the Supreme Courts move to the right, after Chief Justice John Roberts and Justice Samuel Alito came on board to reinforce the beleaguered Justices Antonin Scalia and Clarence Thomas. Liberals agree on the movement but not its desirability. Thus, the indomitable Linda Greenhouse warns readers of the New York Times of the powerful five-justice conservative bloc that has marched in lock step through much of the term, bent on reshaping the law and, in several important areas, well on the way toward doing so. Frightening the semi-informed with visions of a reactionary judicial junta is good fun, and often effective if less than admirable politics. But an examination of the end-of-term constitutional decisions suggests that both conservative exultation and liberal panic are, to say the least, premature. Justice Anthony Kennedy, the fifth vote that conservatives and liberals both seek, is not by any stretch of the imagination a constitutional conservative. Far from being a member of a bloc, Kennedy swings from side to side in the manner of Justice Sandra Day OConnor. Not only has he been in the majority in all the five-to-four decisions this past term, many of which were liberal victories, but he has, for example, endorsed the essentials of Roe v. Wade, written opinions creating special rights for homosexuals, struck down attempts to limit pornography, increased restrictions on capital punishment, relied upon foreign law and U.N. resolutions, and openly claimed the power to control the destiny of the country. But the news may be worse than that, for it is not yet clear how vigorous the newest members of the Court, Roberts and Alito, will be in adhering to its original principles as the only legitimate approach to the Constitution. Three end-of-term decisions raise at least occasion for speculation that Roberts and Alito may be willing to make only minor adjustments to liberal doctrines that have no basis in the Constitution. If so, they would follow in a long line of Republican appointees who turned either moderately or extremely liberal on the bench: Warren, Brennan, Blackmun, Powell, Stevens, OConnor, Kennedy, and Souter. Others, such as Harlan and Burger, are harder to classify but did little to overturn liberal travesties of the past. In Hein v. Freedom From Religion Foundation, Inc., the Court faced the question of what to do about Flast v. Cohen, a 1968 Warren Court decision holding that taxpayers have standing to challenge the expenditure of public funds in a manner alleged to violate the First Amendments prohibition of the establishment of religion. The law had long held that plaintiffs had no standing as taxpayers to challenge alleged violations of any provision of the Constitution. Flasts exception for spending related to religion lacked any coherent rationale. The taxpayer in Hein objected to President George W. Bushs creation of a program to ensure that faithbased community groups can compete for federal financial support. The Court denied standing because Flasts program was funded by a specific congressional appropriation and mandate, while the spending in Hein came out of general appropriations without a specific congressional mandate. The basis for a constitutional distinction between congressional and presidential spending is, to say the least, elusive. The plurality opinion was written by Justice Alito and joined by Chief Justice Roberts and Justice Kennedy. Justice Scalias concurrence, speaking of the pluralitys utterly meaningless distinctions, argued that either Flast must be expanded to confer taxpayer standing whenever spending of tax revenues is alleged to violate

any constitutional provision specifically limiting the taxing and spending power, or Flast should be overruled. Of the pluralitys irrational whittling of Flast, he wrote, Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason. That comment seems irrefutable. A similar Roberts-Alito problem arose in Federal Election Commission v. Wisconsin Right to Life, Inc. Wisconsin Right to Life (WRTL) started to broadcast advertisements telling voters to contact Wisconsin senators Russ Feingold and Herb Kohl to urge them to oppose a filibuster to block federal judicial nominees. The difficulty was that if the ads continued to be broadcast, they would have been on the air within 30 days of the primary election and 60 days of the general election, and mentioned Feingold who was seeking reelection. Recognizing that the ads would be illegal electioneering communications under the McCainFeingold Act, WRTL sued, alleging a violation of its First Amendment rights. The Supreme Court agreed. Just three terms before, however, the Court had held in McConnell v. Federal Election Commission that McCain-Feingold, on its face, did not violate the Constitution. The chief justice and Justice Alito distinguished that precedent on the ground that WRTL mounted a challenge to the act as applied. Justice Scalia, joined by Justices Kennedy and Thomas, rejoined that seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. . . . This faux judicial restraint is judicial obfuscation. That verdict seems entirely just. McConnell should have been explicitly overruled. The most dismaying performance by the new justices, however, came in Morse v. Frederick. At an event sponsored and supervised by his high school, student Joseph Frederick unfurled a 14-foot banner reading Bong Hits 4 Jesus. The school principal confiscated the banner and suspended Frederick for ten days. He sued. So perverse has First Amendment law become that the principal, Deborah Morse, had to defend her action on the ground that the banner promoted the use of illegal drugs. The Supreme Court, five to four, upheld the principal in an opinion by Chief Justice Roberts, but did so on the flimsy defense advanced by Morse. Worse, Justice Alito, joined by Justice Kennedy, joined the opinion on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue. That position derives from a 1969 opinion by Justice Abe Fortas, upholding the right of public-school students to protest the Vietnam War by wearing black armbands in classrooms. Over Justice Hugo Blacks indignant dissent that the Court had taken from school authorities the power to control pupils, Fortas advanced the mindless proposition that neither students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. In the Bong Hits case, only Justice Clarence Thomass splendid opinion pointed out the pernicious frivolity of that position. After quoting a law-review article about the social problem Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools Thomas wrote: To elevate . . . impertinence to the status of constitutional protection would be farcical and would indeed be to surrender control of the American public school system to public school students. Handing grade-school and high-school students the right to use school hours for political and social proselytizing is educational as well as constitutional malpractice. In Morse, the Court, with the agreement of Roberts and Alito, enlarges once more its ever-expanding powers, usurps the authority of other institutions, damages their integrity and competence, and demands social permissiveness as if it were constitutionally mandated. In partial extenuation of some of these decisions: It may be that Roberts and Alito eschewed clarity and made artificial distinctions in order to hold Kennedys vote. That supposition is supported by Kennedys performance in Parents Involved in Community Schools v. Seattle School District No. 1. That decision, again five to four, struck down racial balancing in public schools allegedly justified by the familiar hoax of the need for diversity. Though Robertss opinion for four of the five justices displayed some unfortunate ambiguities, Kennedys concurrence, which will be the controlling precedent, created a result, but nothing that can be called law. As Manhattan Institute scholar Abigail Thernstrom commented: Alas, with Justice Kennedy we end up with the courts familiar and utterly unprincipled formula: Racial sorting is sometimes OK, but sometimes not. It all depends.

It is surely premature to judge the performance of Roberts and Alito on the evidence of these decisions. But at the end of this past term, they gave us some cause for worry, particularly since the problem of assuaging Kennedy to get the necessary fifth vote is not going to go away.

Robert H. Bork is a Distinguished Fellow of Hudson Institute.

Senate to Go Gonzo?
From the August 27, 2007 National Review Online August 28, 2007 by Robert H. Bork It is natural that the resignation of Attorney General Alberto Gonzales should cause speculation about the immediate effect upon the office of the attorney general and the Department of Justice. Obviously, both have been weakened. This weakness, however, cannot be attributed to the notion that the people who have taken over acting roles are not of the same caliber as those who have left. Paul Clement, the current solicitor general who is slated to be acting attorney general, is a superb lawyer who is unlikely to make the missteps that doomed Gonzales. However, the fact that he is acting, and therefore unlikely to be in the post long, weakens him politically in the coming battles with the Democratic majority in Congress. He is likely to play a caretaker role rather than to initiate policy changes that the Democrats will make controversial. The prospect, then, is for a Department of Justice that conducts routine business adequately, but is at least partially paralyzed when it comes to major new initiatives. At a time of national insecurity it is dangerous, and it is the Democrats who will make it so. But the problem created by Gonzaless resignation is likely to spread well beyond the DOJ and hamstring the remainder of George Bushs administration. The president must soon nominate a successor to Gonzales and Senate Democrats are surely contemplating making the confirmation of that person contingent upon the appointment of a special prosecutor. The appointee will inevitably be charged, among other things, with investigating the firing of eight U. S. attorneys, possible perjury by Gonzales and others who testified before the Senate Judiciary Committee, and whatever additional matters Senate Democrats fertile imaginations can pack into the special prosecutors charter. Grand juries will be convened, subpoenas issued, witnesses badgered, documents demanded from the White House, and so on, through the full repertoire of special prosecutors antics. If the Senate Democrats insist, as they surely will, that they approve of the person named, then we are guaranteed of not getting a prosecutor sympathetic to Bush. Richard Nixon was caught in that trap when he removed Richard Kleindienst as attorney general and nominated Elliot Richardson. Richardson, though a highly regarded veteran of several Cabinet posts, was required not only to promise a special prosecutor, but to name his candidate and to draft a charter satisfactory to the Judiciary Committee, guaranteeing the mans independence. Though the man he named, Archibald Cox, performed well, special prosecutors in general have a very mixed record for devotion to justice rather than to partisan behavior, selfaggrandizement, or both. Recall, for instance, the highly political performance of Lawrence Walsh, who seemed intent upon blackening the reputation of the first Bush and who forced plea bargains by spending taxpayers money in amounts that his prey could not match. More recently, we have witnessed the disgraceful performance of Patrick Fitzgerald, who, knowing from day one who had leaked the name of Valerie Plame and that no crime had been committed, not only continued his investigation but persuaded those with knowledge of the truth to remain silent. The upshot was press and public suspicion of the president and of Karl Rove for months on end. Moreover, Fitzgerald is responsible for the blatant miscarriage of justice in the conviction of Scooter Libby, whose scandal amounted to recollecting a phone conversation differently from Tim Russert, a feat reminiscent of Mike Nifongs less successful adventures in prosecutorial abuse. A special prosecutor with unlimited funds, a soon-developed addiction to publicity, and a broad mandate, will rarely wrap up his investigation quickly and without indicting someone. This means that for the rest of George W. Bushs term, the administration will be preoccupied with document searches, witness preparation, countering leaks and a bad press. It will also likely have to litigate against the special prosecutor on matters such as executive privilege. At a time when the administration, the press, and the public should be focused on Iraq, Iran, and the worldwide struggle against jihadists, we will instead be

preoccupied with furious partisan battles over essentially irrelevant questions. The price to America of driving Alberto Gonzales from office, if such a scenario unfolds, will be heightened polarization and peril.

Robert H. Bork is a Distinguished Fellow of Hudson Institute.

Keeping a Republic: Overcoming the Corrupted Judiciary

The Insider, Spring 2010 June 7, 2010 by Robert H. Bork It may help to remember that uncertainty about Americas prospects is not new. As Benjamin Franklin exited the Constitutional Convention in Philadelphia for the last time, a woman asked him: What have you given us? He answered: A republic, if you can keep it. A republican form of government is about legitimate processes rather than results, except in those few instances in which the nation has adopted self-denying ordinances, such as our Bill of Rights, that rule out certain results. Obviously, those ordinances must be carefully construed so that they are effective but do not encroach on the legitimate powers of majorities. A corollary is adherence to the rule of law, for only such adherence can ensure that the will of the majority is not altered or subverted in its application to particular cases so that the power to govern is effectively denied to the majority. Perhaps something like this is what Franklin had in mind. If so, he may have been worried about the displacement of majorities by oligarchies. Franklin was right to suggest that the success of the Republic was contingentso it was, and so it is, and so it will always remain. There will always be people, often in wellfunded organizations, who prefer the victory of their interests to republican processes. The danger becomes acute when the citizenry no longer appreciates the virtues and vulnerabilities of a republic. As Walter Bagehot put it: The characteristic danger of great nations, like the Romans and the English, which have a long history of continuous creation, is that they may at last fail from not comprehending the great institutions which they have created. In Americas case, the great institution we have created and may be failing to comprehend is judicial supremacy: the power we have accorded courts to correct, and do so with finality, the other branches of the federal government and all branches of state governments. The judges need only announce that these other branches and governments have strayed from the principles contained in our written Constitution. Never mind that the power of judicial review is nowhere mentioned in that Constitution or that that power was established in very dubious fashion in Marbury v. Madison. The nation ultimately acquiesced, and a great institution was borngreat in its capacity to do much good but also dangerous when it employs its powers to accomplish ends outside the law. After all, after Marbury came Dred Scott, which denied the federal government the power to prevent slavery in any state or territory or to permit a state to bar slavery within its borders. Perhaps it should have been seen as ominous that these two cases, one greatly admired, the other now universally despised, were both instances of what today we call judicial activism. The Olympians and the Judiciary My thesis is uncomfortable, but I think it is undeniable: America today is only partially a republic and, beginning about 50 years ago, has steadily become less of one. It would be vainglorious to claim that judges have accomplished this all by themselves. Congress has repeatedly overstepped constitutional limits to its authority, as has the President. Though America does not lack for external threats, it is certainly arguable that our greatest long-term threat comes from within. I refer to our self-identified intellectual elites whom Kenneth Minogue calls the Olympians. Olympianism is a secular religion which does not recognize itself as a religion. Its acolytes, until recently concentrated in the universities and the mainstream media, claim superior knowledge which they will share with, and if necessary impose upon, the rest of us. The bad news is that this class is growing and taking root

in the general population, both here and in all the industrial democracies of the West. The reasons for that growth are well beyond my topic today. For the moment, I merely cite that growth as an obvious fact. The most powerful educational and political weapon in the Olympians arsenal is the United States Supreme Court and the inferior federal and state judiciaries. Over time, the courts tend to adopt the values of the dominant culture, and that culture today, and for the foreseeable future, belongs to the Olympians. The reason the judiciary is such a valuable ally to any class or political movement is that the courts, when purporting to speak in the name of the Constitution, even if they speak falsely, are the only institution in America that claims absolute finality for its decisions and is accorded that superior status by all other bodies. The Constitution provides no check upon the courts other than the highly uncertain authority to appoint new judges when vacancies occur. A series of unpleasant surprises in the behavior of new judges suggests that the appointment power is not much of a safeguard. It is noteworthy that the same phenomenon of judicial supremacy is being taken up by other nations of the West, with results similar to ours: an unjustified diminution of democracy, the erosion of national sovereignty, and a judicially imposed movement of the culture to the left. Those results seem to be in the nature of the beast because of the alliance everywhere of the intellectual class and the judiciary. We must ask ourselves whether we continue to understand courts with the power of judicial review. Some inkling of an answer may be found by comparing the views of two prominent men, one of the founding generation and the other a contemporary of ours. I refer to Alexander Hamilton and Justice Anthony Kennedy. Hamilton expressed the original view of the Framers. Downplaying the danger the anti-Federalists saw in a powerful national judiciary, he wrote in Federalist 78 that the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution because it does not command the sword and the purse and has neither force nor will, but merely judgment. He quoted Montesquieu: of the three powers [legislative, executive, and judicial] the judiciary is next to nothing. That was then. Contrast Justice Kennedys view. In an interview, he stated his understanding of the role of a justice on the Supreme Court: You have the opportunity to shape the destiny of this country. The Framers wanted you to shape the destiny of the country. They did not want to frame it for you. Why men who did not want to frame anything should be called the Framers was not explained. At the Philadelphia Convention, they argued long and hard, drafted and redrafted, almost as if they thought they were framing a government to last, but apparently they were simply handing the United States over to a small clutch of judges who would take the nation in unanticipated directions without regard to either the Constitution or the desires of the people. Justice Kennedys remarks were no slip of the tongue, as shown by his further statement. You know, he said, in any given year, we may make more important decisions than the legislative branch does precluding foreign affairs, perhaps. Important in the sense that it will control the direction of society. That perhaps had an ominous ring and, as will be seen, was soon dropped as a barrier to judicial interference with both foreign policy and defense strategy. Kennedys view of judicial power is not markedly different from those of the four other justices in the Courts liberal bloc. He merely has the candor to articulate what is implicit in their decisions. The Courts performance strikes at the heart of the concept of a republic. Without any warrant in law, nine lawyers split five to four, and the judgments of Congress, the President, state legislatures, governors, other federal judges, and the judges of all 50 states all are made instantly irrelevant. Whatever else it is, that is not democracy or a republican form of government. It is a robed oligarchy. So far, all attempts to tame it, to bring it back to democratic legitimacy, have failed. So contemptuous of the electorate has the Court majority become that it routinely publishes opinions notable for their incoherence and remains unperturbed by the most devastating criticisms. The best known, but hardly unique, example is Roe v. Wade, which invented a wholly fictitious right to abortion. Though they have tried desperately, nobody, not the most ingenious academic lawyers nor judges, in the 36 years since it was decided has ever managed to construct a plausible legal rationale for Roe, and it is safe to say nobody ever will. Roe is the premier example of what we now call judicial activism. You will hear it argued that to apply the

term activism means no more than that you dont like a cases outcome. That is not true, and people who talk that way are, whether they realize it or not, implicitly saying that there are no criteria for judging the goodness or badness of a case other than personal or political sympathy. Activism has a real meaning, and it is an indispensable term in our debates. A judge is an activist when he reaches results or announces principles that cannot plausibly be derived from the actual historic Constitution. The historic Constitution is the set of principles that the ratifiers, who made the Constitution law, understood themselves to be enactingthe original understanding. That approach is now called originalism, and under no other approach can we have any semblance of the rule of law, which means in turn that no other approach is compatible with a republican form of government. Activism means lawlessness, and it is rife among many judges and most professors of constitutional law. The rule of law requires that the principles announced and relied upon by judges be neutral in their application. Neutrality requires that a principle, once chosen, be applied according to its terms to all relevant cases without regard to the judges personal views of the parties or issues before him. That is a powerful discipline, for in deciding Case A the judge must realize that he has committed himself to decisions in future cases that fall within the principle but whose particulars are at the moment unknown to him. That counsels great care in choosing and articulating the principle which he advances as dispositive in Case A. Should the principle prove unsatisfactory in Case B, the judges only recourse is to reformulate it with a full explanation of his reasons. It is not sufficient, of course, that a principle be neutrally applied. That requirement would be met if the judge chose the principle that a labor union always loses and applied it neutrally, no matter the merits of a particular case. The principle chosen must also be neutrally derived, chosen without regard to the judges individual preferences. The only source for principles that minimize or eliminate the judges biases is the Framers original understanding of the principles they were making into law. The morality and the policy enforced come from outside the judge. The judge who looks outside the historic Constitution looks inside himself and nowhere else. No judge can possibly avoid seeing a case without his own worldview coloring his vision. But there is a chasm between a judge who knows that and consciously strives for objectivity and a judge who knowingly undertakes to impose his vision of justice upon the parties before him and upon the society. Professor Lino Graglia of the University of Texas Law School summarizes what the Court has done in recent years to domestic policy, moving the nation to the cultural left: Virtually every one of the Courts rulings of unconstitutionality over the past 50 yearson abortion, capital punishment, criminal procedure, [school busing], prayer in the schools,public display of religious symbols, pornography, discrimination on the basis of sex, illegitimacy, alien status, flag burning have reflected the views of the elite. In every case, the Court has invalidated the policy choice made in the ordinary political process, substituting a choice further to the political Left . Graglia observes that the thought that the making of policy should fall into the hands of the American people is the intellectuals nightmare. Maintaining a liberal activist judiciary is the only means of preventing that. Even more egregiously, the Court has forced itself into the conduct of our war against Islamic terrorists. Professor Gregory Maggs, of George Washington University Law School, points out that our current Supreme Court has overruled every precedent established in World War II, and it has done so in defiance of the foreign affairs powers the Constitution entrusts to Congress and the President, as well as the Presidents role as commander in chief of the armed forces. The Courts incursions into areas best governed by the political branches are unprecedented as well as far beyond its competence. Detained enemy combatants, even those held abroad, are now for the first time in our history entitled to challenge their detention by claiming due process rights formerly available only to American citizens and lawful residents. The alternative system of justice, trial by military commissions, which goes back at least to George Washington and was ratified as recently as World War II by Franklin Roosevelt, has been made subject to new rules that seriously impair the effectiveness of the commissions. Judges have interfered with the collection of intelligence about terrorists by electronic means even where there is no conceivable threat to any citizens privacy.

The threat to American lives and war aims by the American judiciary is real and serious. Professor Jack Goldsmith warns that our capacity to wage war has been strangled by lawthe war has been judicialized. So accustomed are Americans becoming to control by judges and legal processes that we are introducing law into areas where it is incapable of performing well and instead debilitates other vital national functions. Lawyers now oversee the conduct of war, often down to tactical levels. It is reported that an Army general, given the opportunity to fire a missile at an automobile in which Osama bin Laden was thought to be riding, was deterred by his legal adviser. It seems certain that introducing lawyers into combat situations will usually lead to undue caution that is inconsistent with the aggressiveness and risk taking necessary to the successful conduct of war. Both the lawyer and the commander, mindful of the second guessing that could damage their careers, will be tempted to play it safe by not firing at a car in which it is only probable that bin Laden is riding. As this quick and necessarily truncated survey demonstrates, policymaking in crucial areas of domestic and foreign affairs has shifted dramatically from the elected representatives of the political branches to unelected judges, who cannot be voted out of office and whose views cannot be adequately known before they take office. The result is, as Justice Antonin Scalia put it, Day by day, case by case, this Court is busy designing a constitution for a country I do not recognize. Preparing the Next Generation What can be done to remedy the situation? The problem being political and intellectual, so must be the solution. There is some reason for very modest optimism on both fronts. Thirty-five to 40 years ago, there was almost no intellectual support for originalism in the academic world, where that philosophy was commonly regarded as at best pass and at worst reactionary. Today, a sizeable body, though by no means the majority, of constitutional law professors, explicitly or implicitly, adhere to that view of constitutional interpretation. That is having an effect on those students who will comprise the next generation of scholars and, through them, on the judges of the future. This is a daunting task, and its difficulty may be so great as to seem impossible, but the history of the reform of antitrust law by scholars and then judges may provide some reason for hope. Antitrust jurisprudence once seemed so politicizedits irrationalities so fiercely defended by the enforcement agencies, plaintiffs lawyers, professors, judges, and Congressthat reform seemed impossible. Yet, largely through intellectual critique, reform has been achieved. There are, to be sure, very real differences between antitrust reform and the return of rationality to constitutional law, but there are enough similarities to suggest that hope need not be abandoned for the return of legitimacy to the institution of judicial review. Almost regardless of the outcome of the intellectual struggle, however, there remains the political battle to nominate and confirm justices and judges who spurn activism as an illegitimate creed and will be guided in their deliberations by the original understanding of the principles of the Constitution. This may be the more difficult task. Many politicians, and the activist groups of the Left which they serve in these matters, simply have no interest in the legitimacy of constitutional interpretation; they care only about results. Our hope, if there is to be hope, must be in the appointment of new justices holding an originalist philosophy. That is necessary if not sufficient for the preservation of a republican form of government. This article is adapted from his speech delivered as the inaugural Joseph Story Lecture at The Heritage Foundation, October 15, 2008.

Robert H. Bork is a Distinguished Fellow of Hudson Institute.

Offense to the Constitution Act

National Review

March 21, 2011 by Robert H. Bork The utter cynicism and frivolity of the Obama administration is nowhere more evident than in Attorney General Eric Holder's announcement that he and the president have decided that the Department of Justice will no longer defend the constitutionality of the Defense of Marriage Act (DOMA). The announcement is an outrage not only because of the result it reaches, but also because of the constitutional wreckage it leaves in its wake. That wreckage is both substantive and structural. Obama and Holder reason that the statute violates the "equal-protection component" of the Due Process Clause of the Fifth Amendment, which applies to the federal government. Holder wrote Congress: "The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. . . . Moreover, the Department has declined to defend a statute 'in cases in which it is manifest that the President has concluded that the statute is unconstitutional,' as is the case here." The difficulty of applying "equal protection" without regard to the original understanding of the term is that there is no way to confine the clause. Since all law discriminates, all law is potentially vulnerable to equalprotection challenge. As the DOMA case reminds us, the substantive use of equal protection is especially hostile to moral legislation in the hands of this Court. Also, the Obama-Holder position depends upon a repudiation of originalism as the preferred mode of constitutional interpretation. It is impossible to derive a right to homosexual marriage from the original understanding of either the Fourteenth Amendment or the Fifth Amendment's equal-protection component. The Fourteenth Amendment's Equal Protection Clause was part of the design to bring the newly freed slaves into the Union on equal terms with whites. Hence, we have Brown v. Board of Education and Loving v. Virginia. The latter, which struck down Virginia's ban on interracial marriages, is often misused by courts. Opponents of California's Proposition 8 regularly cite Loving and similar cases to show the high regard in which marriage is held and hence, the argument goes, the unfairness of preventing homosexuals from marrying. This argument, however, rests upon a willful misrepresentation of the law: After the Loving decision, the Supreme Court dismissed the appeal of a holding by the Minnesota Supreme Court concerning same-sex marriage on the grounds of a "want of substantial federal question." The Minnesota court had ruled that the state's marriage statute "does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution. . . . In common sense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex." The Obama-Holder dismissal of originalism is an assertion that the interpreter of the Constitution, be it a court or a legislature or an executive-branch official, is free to attribute to the Constitution any position he favors. Situations in which executive-branch officials believe a law is unconstitutional are not unknown, but the officials have almost always handled them very differently than this president and attorney general have done. In the 1946 case United States v. Lovett, the solicitor general attacked the constitutionality of a statute forbidding the use of federal funds to pay the salaries of three government employees. The situation differed from the DOMA abandonment in an important way, however: In singling out executive-branch officers for discipline, Congress had interfered with the structure and functions of the department and, hence, of the executive branch. In such situations, the solicitor general is necessarily an advocate for the president. As solicitor general, I was involved in a situation similar, but not identical, to the DOMA capitulation. In 1976, the department was faced with defending a statute, the Federal Election Campaign Act, that seemed to Attorney General Edward Levi, and to me, to be clearly unconstitutional under the First Amendment as a restriction of political speech. Our solution was to delegate to the senior deputy of the solicitor general's office the defense of the statute, thus ensuring a first-rate defense. Simultaneously, Levi and I filed a friendof-the-court brief exploring the difficulties of the statute but not taking sides in the dispute. Justice Powell subsequently expressed his appreciation for the brief, which he and others on the Court had found extremely helpful. In this way, we both called to the Court's attention the very considerable difficulties the Constitution posed for the statute, and mounted the best defense of it that we could. It is important that the solicitor general be able to perform both tasks in appropriate cases. The Office of the Solicitor General consists of a small corps

of elite lawyers who give every constitutional issue the scrutiny it requires. In the absence of that scrutiny, the defense of a major statute such as the Federal Election Campaign Act or DOMA may be inadequate, and the first case to reach the Supreme Court may set the parameters for later cases. The problem of inadequate exploration of legal issues can occur even when the solicitor general argues the case, but it is much more to be feared when a different entity litigates as will most likely happen in the absence of a lawyer from the executive branch to defend DOMA. States' representation, for example, is rarely up to the standard an important case deserves. When I was solicitor general (and I assume both before and since), the executive branch routinely filed a friend-of-the-court brief and asked for time share in the oral argument in state cases that might set the law in ways that would affect the federal government. I remember vividly an occasion upon which a lawyer for the state of Nebraska defended Nebraska's transfer of prisoners from one prison to another. When questioned from the bench, the lawyer said, "We used to draw and quarter people, and we don't anymore." Justice Marshall said, "Is it Nebraska's contention that it could conceivably draw and quarter prisoners, and therefore could constitutionally do anything less to them?" There was a long silence while I waited for the attorney to brush aside the suggestion, but when I looked up he was actually thinking it over, and then he said, "That's part of my argument." We were saved by the fact that the answer was so preposterous that nobody took it seriously, but the episode did illustrate the dangers of relying upon unknown attorneys to make the case for the federal president. If Obama and Holder find DOMA problematical, they might have adopted the solution that Levi and I did. That they did not suggests an unwillingness to have the constitutional question exposed to the light of day. Instead, they added to the growing list of misuses of the Bill of Rights and distorted the structure of our government in ways that urgently require repair. Obama and his czars have already acted to lessen the powers of the legislature that the Framers intended to create and now are usurping the function of the courts by announcing constitutional decisions by the executive branch. This aggrandizement of the executive-branch powers poses a very real threat to American liberty.

Robert H. Bork is a Distinguished Fellow of Hudson Institute.

The Growth of Originalism

Academic Questions, Summer 2011 May 25, 2011 by Robert H. Bork The latest episode in the long-running struggle for control of the Constitution, and the political power that goes with it, is playing out in the federal courts in California. The contending philosophies are originalism, which holds that the Constitution should be read as it was originally understood by the framers and ratifiers, and the congeries of cultural and political theories proposed by academics and progressives, but not contemplated by the founders. The immediate ground of the controversy today is California's Proposition 8, by which nearly 53 percent of the state's voters rejected gay marriage. Although most people would think that the very essence of law is that courts should carry out the understanding of those who voted for a law, the amazing fact is that, until recently, most law schools regarded that view as primitive and not worth discussing. On the Yale faculty of law in the 1960s and 1970s, I was alone in adhering to an originalist outlook. A visiting professor, not himself an originalist, suggested in the faculty lounge that my argument was worth rebuttal. He was told, however, that originalism was pass and not worth discussing. Some of these professors were honest in this view, but others held disguised leftist views, both politically and culturally. Obviously, if there is no firm discipline in constitutional law, no result can be ruled out. The virtue of originalism is not that it delivers firm answers on every topic but that it rules out the most outrageous decisions. Originalists could never have arrived at the result in Roe v. Wade or justified the drive for same-sex marriage. It is difficult to say whether originalism or one of the alternatives is winning the debate. The answer to such questions is inevitably subjective, but it is clear that originalism has been gaining adherents and may be close to dominance in constitutional scholarship. One reason is the phenomenal success of the Federalist Society, primarily an organization of students with chapters in most law schools. Just as the non-originalists

are said to be an uneasy alliance between nihilism and left-wing philosophy, so the federalists tend to be an alliance between Libertarians and conservatives. Also influential is the presence on the Supreme Court of four justices whose primary outlook is originalist. In the end, however, the ultimate fate of originalism will depend upon the character of judges and professors. They have a constant temptation to yield to the allure of power to do good as they see the good rather than as the political branches to which we have entrusted the care of democracy see it.

Robert H. Bork is a Distinguished Fellow of Hudson Institute.

Turning to Constitution in Times of Stress

Book review of Resurgent by Ken Blackwell and Ken Klukowski, Washington Times June 14, 2011 by Robert H. Bork The essence of conservativism is fidelity to the reality principle. Not for us, we pride ourselves, the utopian vaporings of the left. In times of stress, however, the temptation for conservatives is to reach for bromides to palliate their sufferings. Ken Blackwell and Ken Klukowski, who display sound political instincts, nevertheless illustrate the dangers of conservative bromides. One hears much these days from Glenn Beck-style conservatives about returning to the original Constitution as a cure for Obama-inflicted miseries. We also hear pleas for a Balanced Budget Amendment to save us from fiscal disaster, and to enforce the War Powers Act to deprive the president of the ability to use armed force without gaining the consent of Congress. All of these proposals share one characteristic: They would push serious issues of national security and domestic policy into courts and thus relieve Congress of any responsibility for taking necessary but unpopular action. The Balanced Budget Amendment would, it is hoped, direct public fury at spending cuts away from congressmen to robed bureaucrats who need not stand for election. The War Powers Resolution responds to similar pressures. It is a desperately bad idea. Indeed, there are very good reasons why we may prefer combat without a declaration of war. For one thing, the heated debates in Congress will alert any potential enemy and may trigger alliances or treaty provisions among our opponents unknown to us. Since the founding of the Republic, the United States has often initiated armed warfare without a declaration of war. Thomas Jefferson's order to attack the Barbary pirates is an example. In fact, without such power, the Marine Corps hymn - "From the halls of Montezuma to the shores of Tripoli" - would have to be rewritten because it refers to Tripoli and our Marines would not have been there if we had waited for a declaration of war from Congress. I have long wished that Richard Nixon had asked me how to deal with the War Powers Resolution. I would have advised that he not veto it and thus give it added dignity, but that he return it with a letter to Congress saying "Thank you for your essay on your understanding of my war powers. When I have time, I will send you my essay on my understanding of my war powers." The New Deal taught us that no court can save us from a popular movement, no matter how unwise or divorced from constitutional principles. Judges can stand firm temporarily but the great engine of judicial reform, whether good or bad, is a brute fact of judges' mortality. Bob Dole may have hit the campaign trail brandishing a copy of the 10th Amendment, which attempted to limit congressional powers to those enumerated in Article 1, Section 8 of the Constitution but the public wanted Social Security, Medicare, labor laws, etc., and the new appointments to the court gave them what they wanted. The authors, Mr. Blackwell and Mr. Klukowski, are sounder on the judiciary's abuse of its powers. The Supreme Court is steadily eroding America's moral sense and ability to wage war effectively. The authors correctly identify Roe v. Wade as perhaps the worst decision ever made but, the nation being split on the issue, public pressure is ineffective to end the travesty of classifying abortion as a constitutional right. The nation now faces the prospect of court-ordered homosexual marriage. The outcome of the homosexual marriage litigation is not at all certain, though it is ominous that the court has rather consistently ruled in favor of homosexual claims in recent years.

The court has also routinely overturned prior precedent enabling the nation to wage war effectively. All of the World War II precedents concerning national security have been overturned. The alteration reflects the changed views of the media. In the invasion of Grenada, a reporter complained to a high officer that in World War II, unlike today, the press had been allowed to go to the front lines. The officer replied, "In World War II you were on our side." "Resurgent" may have limits as a scholarly work and it may be suffused with conservative fantasies that limit its value. The work is not without merit, however. Its very nature as an example of conservative fantasizing makes it a manual for activists.

Robert H. Bork is a Distinguished Fellow of Hudson Institute.