Round Two for Judge Bork

Article excerpt

Round Two for Judge Bork

Last fall in these pages I examined the constitutional philosophy of Robert H. Bork, a judge on the U.S. Court of Appeals for the District of Columbia who is widely thought to be destined for the Supreme Court should President Reagan be re-elected [see "Robert Bork and the Constitution,' October 1, 1983]. I took as my text a 1971 law review article in which Judge Bork--at the time a professor at Yale Law School-- set forth his general approach to constitutional interpretation and then applied it to the First Amendment. He did not respond directly, but when an item about my article appeared in the December issue of the American Bar Association Journal, his response was swift and sharp. Apparently he was prepared to leave the readers of The Nation in a fog of uncorrected error about his views, but not the 340,000 lawyers who receive the A.B.A. Journal.

The offending item, titled "Here Comes Attila the Hun of the Constitution,' appeared in a column called "Browser,' which presents short, chatty summaries of recent articles thought to be of interest to the bar. Judge Bork's reply, in the February issue [reprinted here with the A.B.A. Journal's permission], began:

It is unfortunate that the Browser department . . . should choose to summarize my constitutional philosophy as presented in the Nation (not the New Republic as you suppose.* There is a difference.). The Nation piece, by Jamie Kalven, in turn purports to state my views entirely on the basis of a 13-year-old article. It is one thing for a column to digest articles from other publications in which a writer states his views. It is quite another to repeat, without checking, what another writer reports to be the views of a third person. The Browser piece commits that journalistic sin and then compounds it by adding its own Attila-the-Hun characterization to what Mr. Kalven actually wrote. Perhaps your writer thinks the matter humorous, but a number of readers are likely to suppose that reporting contained in the official publication of the American Bar Association would be accurate.

* The A.B.A. Journal had cited The New Republic rather than The Nation.

I sympathize. The column collapses a long, complex argument into a few paragraphs. It imparts to that argument a somewhat ad hominem flavor. And the title is deplorable: it is not only insulting to Judge Bork; it misses the point of my article. Bork is dangerous not because he is some sort of wild man. He is dangerous because he is a persuasive champion of an approach to constitutional adjudication that is powerfully coherent, appeals to common sense and would, in practice, largely empty various central constitutional values of judicially enforceable meaning.

To see clearly the perverse dynamic that underlies the surface plausibility of Bork's theory, it is necessary to engage his ideas at the level of application. That is why Bork's "Neutral Principles and Some First Amendment Problems,' in the Fall 1971 Indiana Law Journal, is of such interest. This "13-year-old article' remains his central statement on constitutional law. Often cited by his admirers, it is part of the canon of right-wing constitutional scholarship. Most important, it offers his account of what the approach would mean in practice for one highly valued constitutional tradition.

The article's thesis is that the proper role of judges is to decide cases in light of "neutral principles' that reflect the intentions of the framers of the Constitution insofar as those intentions can be inferred from the text, the history of its adoption and "their fair implications.' When judges go beyond those sources in interpreting a constitutional provision, argues Bork, they have only their personal preferences to guide them. And in a democracy, it is intolerable that the preferences of judges should exercise a veto over the preferences of the majority.

Applied to the First Amendment, Bork's mode of interpretation yields the principle that the amendment's sole function is to protect speech that contributes to democracy. …