In his generous nature, Robert Bork was willing to bring out the threads that connect us, even though he has borne serious reservations about the kind of argument that runs through my book. Beyond the Constitution. As ever, he has shown an uncommon willingness to think anew about his own arguments, and for my own part, I will reflect again about the points of his reluctance to join my argument. He reveals, in his piece, points of substantial disagreement, and they may be the subject of a conversation carried on with more profit over the years, because it may be carried on as a conversation among friends. But in the aftermath of his commentary, it is worth considering briefly some of the issues that linger in the center of the debate and that touch the concerns of this journal.
As Robert Bork knows, every exponent of natural law, from Aquinas to Abraham Lincoln, understood the necessity of having “positive law.” We might have a sense, for example, of the principle that would justify the protection of life from reckless endangerment. When that principle is applied to our highways, it needs to be expressed in regulations of “positive law” that bear on the conditions of our lives. And so the law may impose a speed limit of 55 m.p.h., or it may prescribe “breathalyzer” tests, along with roadblocks, to check on the sobriety of drivers. Natural law would provide the principle that justifies measures of this kind, but natural law would not require any one of these measures to the exclusion of others. And that is why a generation of jurists schooled in natural law found it easier to follow a regimen of judicial restraint: when judges understood more clearly the difference between natural law and positive law, they understood more readily that the mission of judges would not encompass the management of the schools or the allocation of public housing.
The proponents of natural law, then, understood the need for positive law, but that did not make them “positivists” in the current understanding. The lawyers and jurists who have earned that title are the people who have argued that there are no standards of moral judgment apart from the standards that are “posited,” or set down, in the law. Hence Chief Justice Rehnquist, who has written that the “value judgments” of individuals “take on a form of moral goodness because they have been enacted into positive law. It is the fact of their enactment that gives them whatever moral claim they have upon us as a society” (emphasis added).
Judge Bork has sought to put a benign haze over this matter, but is easily dissolved: any moral principle that does not bind is not a moral principle. If there are no binding propositions on right and wrong apart from the law, then there is no morality outside the positive law. And if a positive law is made only through the stipulations of a local majority, then there is no right or wrong apart from the preferences of a local majority. We may be talking now about some of our friends, but the fact is that anyone who satisfies this strict understanding of a “positivist' has amply satisfied the requirements of a “cultural relativist.” He may affect a respect for something he calls “moral principles,” but he has committed himself to a view that acknowledges no moral truth apart from the opinions of right and wrong that are dominant in any country (i.e., the opinions that are held by a majority).
That is a position that Robert Bork came near to incorporating many years ago. “Truth,” he once said, “is what the majority thinks it is at any given moment precisely because the majority is permitted to govern and to redefine its values constantly.” If he has strained to persuade his friends that he is not a moral skeptic, it may be because they remember lines of that kind. Nor is it exactly settling when he seeks to make a confirming gesture about moral truth and he can deliver himself only of this sentiment: that “it seems impossible to live any sort of decent life without ideas about moral truth” [emphasis added). That merely tells us, of course, that there is utility in having these ideas, not that the ideas are true. But his inclination has been to move steadily away from skepticism, and he has even endorsed the notion that, in interpreting the Bill of Rights and other parts of the Constitution, it will often be necessary to trace our judgments back to “the structure of moral understanding that must lie behind the text of the Constitution.”
Still, that moral understanding seems a bit cloudy to him, and he admits a critical doubt about the “source” and “content” of natural law. “For some,” he says, “it is ordained by God; for others, it arises from the nature of human beings, even if we are evolutionary accidents.” But here he has preserved a venerable confusion that the exponents of natural law dispelled long ago. As “the judicious” Richard Hooker explained quite clearly in 1593, the law that comes to us through revelation is the divine law. But the natural law is the law that is accessible to us simply through the reason that marks the nature of human beings: “Law rational therefore, which men commonly use to call the law of nature, meaning thereby the law which human nature knoweth itself in reason universally bound unto, which also for that cause may be termed most fitly the law of reason.”
Natural law began, then, with that very nature of human beings that creates the possibilities of law: namely, that human beings are the only beings who can give reasons over matters of right and wrong. That was the understanding of Aristotle and the American Founders; but in an interesting slip, that was not part of Bork's account of human “nature.” We may be, as he says, “evolutionary accidents,” but the founders of law noted, in the first instance, that this primate conjugated verbs and framed justifications.
Hooker understood that the natural law began with those “laws of reason” that were accessible to creatures gifted with reason. Our first generation of jurists in this country understood that they were “doing” natural law when they wove those laws of reason through their judicial opinions. Those axioms of the law seemed so self-evident and compelling that we could often forget that we were in the presence of the first principles of law. Bork himself has applied those axioms of reasoning acutely in his own writings but without the sense that he has been speaking the language of natural law. And yet he has complained that “a natural law judge would make positive laws out of his own perception of universal moral principles. Those moral postulates would then become just as binding on the polity as the written law of the Constitution. That is where we legal positivists get off.”
But when the Founders—and Bork—invoked the axioms of reason, there was no sense that the truth of these propositions depended merely on “perceptions.” Consider: Justice Story often cited the maxim that what may not be done directly may not be done indirectly. If it is wrong to commit a murder, it is wrong also to hire or incite another party to perform the same killing. If the federal government cannot reach a subject directly, it may not use the taxing power as surrogate, and legislate through the guise of taxing. Chief Justice Marshall offered this dictum in Cohens v. Virginia (1821): “The judicial power of every well constituted government must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws.” Corollary: any question or subject that may come, properly, within the authority of the courts must come properly within the jurisdiction of the legislature. How could it be then that the Congress is not empowered to legislate on the subject of abortion when the federal courts claim the competence to reach that subject in all of its dimensions?
These implications are scarcely trivial, and yet they flow from propositions that have a “necessary” force of axioms in the law. Marshall and Story did not see these axioms as depending in any way on their own “perceptions.” They understood, rather, that the axioms were part of the “principles of law” and the discipline of judging. And for that reason, it could hardly be a question for them—as it is for Bork—of whether these axioms were “as binding on the polity as the written law of the Constitution”: these axioms were utterly necessary to the coherence of the law, and any part of the law that ran counter to them simply could not have coherence as a proposition and the standing of “law.” If they were axioms, they would be necessary and binding, regardless of whether they had been set down in the Constitution. A lawyer recently arguing before the Supreme Court made the common mistake of claiming a right, “under the Constitution,” to a presumption of innocence. Every schoolboy apparently knows that defendants should be presumed innocent until proven guilty. And yet nowhere in the Constitution is that proposition set down. What is the ground, then, on which we have come to treat it as a principle of our law? Could it have something to do with the fact that any contrary proposition becomes untenable?
When an earlier generation of jurists noted these axioms or drew out their corollaries, they did not have the sense that they were creating “new constitutional principles.” They saw themselves, rather, as drawing out the implications that arose from the axioms of law. Bork himself, as a writer and a judge, has engaged in the same exercise with considerable effect, and on this head, there is no example more telling than the argument he has advanced as his central teaching: namely, that positive law must take precedence over natural law. Natural law may indeed offer a collection of lofty thoughts, but the principles of natural law would not be binding in our law unless they are formally incorporated through the positive law. This understanding is put forward as a rule of construction—but more than that, as a premise that anchors his jurisprudence. And yet, that premise is nowhere to be found in the text of the Constitution. On what basis, then, would it claim our credence as a rule to be followed in our law—and indeed, on what basis would we even claim to know that it is true?
Robert Bork is evidently persuaded that this understanding appeals to a sense of the fitness of things or perhaps even to the “logic of law.” But either way, he would be appealing to a principle of reasoning that would not depend for its truth on whether it happened to be mentioned in the Constitution. In other words, we would be back to the axioms of the law: we would have discovered, yet again, the principles of natural law.
It is a curious question as to why Bork has adopted the premises of his adversaries: why does he assume that, if we speak seriously about natural law, we must be assigning more power to the judges? My own book was directed as much to legislators and executives, who also bear a responsibility to deliberate on the constitutionality of their own acts. But Bork has been disposed to support the claim of the judges to act as the sole interpreters of the Constitution. And he has resisted the understanding held by Lincoln that the political branches may work through ordinary legislation to limit and even reverse the decisions of the courts. The defenders of natural law have not sought to protect, in that way, the power of courts. But it does not appear quite yet that Bork has made the connection: the proponents of natural law have been drawn to him precisely because he has supported in his teaching a discipline of restraint for judges.
Robert Bork, as a jurist, was the most sensible and disciplined of judges. I remarked to him once that he is very much a child of the University of Chicago, and he has spoken the language of natural justice all his life. And that is another reason why his absence from the Supreme Court has been a grievous loss. If he were there, we would now have on that tribunal two judges who have brooded at length over natural law: one who has proclaimed his dedication to it, while professing that it has only the faintest bearing on the cases before him; and another who has practiced natural law even while professing with a proper diffidence that it cannot be done.
And yet, there is one reflex that continues to run counter to this pattern. Bork expressed his dubiety about the argument made by Justice Harlan that the segregation of the races might be challenged under that clause in the Constitution which guarantees to each State “a republican form of government.” He found it “difficult to understand why the same moral reasoning would not have enabled the pre-Civil War court to end slavery.” The task for the judges then would have been comparable, he thought, to the task managed by Justices Brennan and Marshall on the death penalty: viz., to flex their genius in showing “that the death penalty violates the Constitution despite the fact that the document explicitly assumes that punishment's availability.”
But here, Bork runs the risk of falling into the same mistake made by Chief Justice Taney in the Dred Scott case: there is no explicit endorsement of slavery in the Constitution comparable to the explicit mention of “capital” crimes and punishments. And as Bork knows, that was not an accident. The Founders made their accommodation with slavery, but they took care that the name of that hateful institution would not be imprinted in the Constitution where it could stand as a lingering embarrassment when slavery had come to an end. The silences of the Constitution in this respect were a mark of the original understanding: that slavery would be tolerated for prudential reasons, but it could never be endorsed in principle. Even Founders from the South recognized that slavery was incompatible in principle with a polity founded on the right of human beings to be governed only with their own consent. I cannot imagine that Bork should find it extravagant in any degree that a judge would acknowledge that same understanding.
What is at issue is whether judges could have taken it upon themselves to upset the political compromise on slavery that was necessary to the creation of the Union. Judges tutored in natural rights and committed to a “government of consent” had been quite cautious not to snatch this responsibility from the hands of officers elected by the people. A court composed of judges of that character could have helped to avert a political crisis by avoiding the mistake made by Chief Justice Taney: they would not have fallen into the error of finding that “the right of property in a slave is distinctly and expressly affirmed in the Constitution.”
They would have been more alert to that point precisely because they would have understood the principles of natural right that stood behind the Constitution, and guided even its compromises. The aim of my book was to remind us of the way in which jurists and statesmen in an earlier day were able to trace their judgments back to those first principles “beyond the Constitution.” Just what those principles were and how they reasoned about them forms the issue in dispute even among friends. And it is a reflection of Robert Bork, in his sense of engagement, that the question provides for him and his friends the steadiest of work.
Hadley Arkes is the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College and a Bradley Scholar at the Heritage Foundation.
Judge Bork reminds us that ideology should have no place in constitutional interpretation. In Federalist #78, Alexander Hamilton maintained that the judiciary “may truly be said to have neither Force nor Will, but merely judgment. . . .” This holds not only for the institution of the judiciary, which has no immediate authority over the sword or the purse and enjoys no legislative powers, but also for the judge whose responsibility is to interpret the law, to exercise judgment rather than legislative will. Whatever the merits or demerits of a particular philosophy about law, the law cannot be regarded as an instrument, outcome, or implication of the judge's private theory. Here there is no significant disagreement between Judge Bork and his critics.
Moreover, no one who has carefully considered the history of the Supreme Court over the past several decades can fail to agree with Judge Bork's general admonition about the clumsy and sometimes mischievous uses of natural law theory. In the first place, whatever the state of eighteenth-century opinion on the issue, today there is no general agreement about the meaning of “natural law.” In the second place, the concept is useless unless it is applied to particular disputes. While there is an impressive amount of case law influenced by one or another natural law theory, philosophically speaking, the results hardly constitute a consistent body of law. In the third place, since the late nineteenth century, judicial uses of natural law (more often than not) have been ideological. Rather than being an instrument in the service of clarifying the moral principles embedded in our law, natural law theory has been used to obscure a willful and often ignorant political or social agenda favored by the judiciary.
To my knowledge, most so-called “conservative” proponents of natural law are in agreement with Judge Bork about this problem. In reference to my article in the Wake Forest Law Review 429 (1990), Judge Bork neglects to point out that one of my chief points is that liberal natural law theory has been something close to an unmitigated disaster. I argue that it has proved to be neither a faithful steward of the tradition of American natural law jurisprudence, nor an articulate vehicle for defending the rule of law. Though Bork correctly cites me as saying that natural law theory is “unavoidable,” I certainly never suggested that the Douglas-Brennan-Blackmun school of natural law should be regarded as an unavoidable fixture of our constitutional jurisprudence. The whole point of the article is to show precisely where it has gone wrong, how it has capitulated to ideology, and perforce why it ought to be rejected.
Curiously, Judge Bork writes as though he is on the defensive on this issue of natural law. But the truth of the matter is that he has set the terms of the discussion. Having issued a very powerful criticism of judicial activism, he has put natural law jurisprudence in the position of having to justify itself—at the very least in the position of having to distinguish itself from the run-amok activism of the contemporary court. As he says: “Having endured for half a century a Court that seized authority not confided to it to lay down as unalterable law a liberal social agenda nowhere to be found in the actual Constitution of the United States, conservatives must decide whether they want a Court that behaves in the same way but in the service of their agenda.” Judge Bork's concern is intelligible and fair.
The problem is that the issue is not a tidy one. It necessarily involves analysis of historical, philosophical, and hermeneutical issues that cannot be undertaken in a careful way in a brief essay, much less in a reply to such an essay. On this score, I am not sure that Judge Bork has really tackled the strongest arguments or the most perplexing questions raised in the writings of either Professor Arkes or myself. The complex issues are flattened out and reduced to the problem of judicial review. Whatever the extent or depth of the problem of natural law, it is something more than what can be accurately encapsulated in the debate over judicial review or the performance of the activist Court.
Moreover, the waters of this debate are muddied because Judge Bork has not adequately, or at least not entirely, elucidated his own understanding of these matters. For example, he admits that a judge can be expected to address natural law in the course of discerning “what the framers and ratifiers meant”—a discernment, he says, that must be distinguished from making up “new rights the judge regards as ‘natural.' “ I agree. Although Clarence Thomas ran from the issue of natural law during the Senate hearings, he too finally agreed with the proposition that it is proper for a judge to attend to natural law theory if it is a conspicuous element in the statute or constitutional text under dispute. Indeed, for an American to rule out some conjunction between original intent and natural law would be nothing less than an ideological, if not Orwellian, rewriting of history.
In a certain sense, the entire issue rests upon what can be included in, or excluded by, this discernment about the intent of the framers and ratifiers. They had strong convictions about natural law—convictions that influenced not only their understanding of the natural principles of justice underlying the Constitution as a whole, but that also shaped their understanding of certain clauses of the Constitution, the Bill of Rights, and section one of the Fourteenth Amendment. Granted that the judge must never read his private theory of “nature” or “justice” into the Constitution, the question is (1) whether one is already there, and (2) whether it sets a norm for interpretation of the law.
Simply put, does Judge Bork believe that a responsible method of original intent can locate a natural law of rights or political institutions embedded in our Constitution? If so, does Judge Bork believe that this can have any bearing upon the judge's interpretation and application of the law? If the answer to these two questions is yes, then there is probably some common ground between Judge Bork and his conservative critics. Judge Bork gives indications that this common ground exists, even though his approach to natural law often appears to be exclusively devoted to debunking judicial activism, whether of the left or the right.
A judge who focuses upon the natural law intent of the framers might be a clumsy hermeneuticist; he might be a maladroit jurisprude when he tries to apply the principles to the case at hand; indeed, for lack of either philosophical or legal training, he might make a complete mess of things; but he cannot be called a judicial activist. He can only be called a judicial activist if we have already determined, ahead of the game as it were, that there is no judicially cognizable natural law theory to be found in the legal texts or in the intent of the framers. If one has reason to believe that this is so, then Judge Bork is correct when he suggests that conservative proponents of natural law are up to nothing essentially different than the liberal activists. Both would be reading a theory “into” the law. And even if one theory is better on its own merits, it would still amount to an imposition of a judge's private opinion. But if one has reason to believe that the fundamental law bespeaks some natural principles of justice, then the superficial symmetry between liberal and conservative activists does not necessarily follow. For what might distinguish these two schools is whether or not one or the other comports with the original intent of the framers and ratifiers. That, I maintain, is an important difference.
The charge of “activism” on the part of a natural lawyer cannot be anything other than polemical assertion until we settle this matter. Judge Bork sometimes appears to leave the door ajar to the possibility that one or another understanding of natural law comports with the intent of the founders (and hence the possibility of a principled distinction between sound and unsound theories and users of natural law), while at other times he seems to suggest that judicial uses of natural law theory are necessarily impositions of the judge's private worldview (and hence the distinction between sound and unsound theories has no point as to what judges do).
Granted the wide array of theoretical and practical problems that attend natural law theory as a method of constitutional interpretation, it is nevertheless important to keep in mind that it is not the only species of willful, ignorant, or ideological jurisprudence. Arguably, more mischief has been done in the name of one or another doctrine of original intent or “originalism” than under the rubric natural law. For example, three notorious and pernicious cases were due almost entirely to misguided efforts to resolve constitutional disputes via original intent.
In Dred Scott v. Sanford (1857), Justice Taney referred to the “natural” inferiority of the blacks. Yet his opinion, in his own words, sought to discern the status of the question “within the meaning of the Constitution.” Taney bounced from one clause of the Constitution to another, from the privileges and immunities and diverse citizenship clauses to the Fifth Amendment; and he solemnly cited a wide array of statutes pertaining to slavery in search of legislative precedent and intent. The salient point is that he expressly rejected any moral or legal opinion that would “induce the Court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted.” In ascertaining the intent of the framers, Taney avowed fidelity to the “plain words,” to the “intent” of the framers, and styled himself as a strict constructionist.
In Everson v. Board (1947), Justice Black, an inveterate foe of natural law reasoning, summarily undid the principles of church-state jurisprudence that had been in place for well over a century. On the basis of what was a phantasmal history of colonial opinions on the matter, and relying upon an exegesis of a private letter in which Thomas Jefferson referred to the “wall of separation,” Justice Black construed the Establishment Clause to mean that government is prohibited from aiding and promoting religion. The Court's jurisprudence of the Establishment Clause has been in disrepair ever since.
And regarding Roe v. Wade (1973), we can agree with Judge Bork that Justice Blackmun sought to augment and expand an alleged natural right to privacy that covers a unilateral decision to procure an abortion. But we can also point out that the case pivoted upon Justice Blackmun's survey of the history of statutory law, common law, and constitutional case law. For it was his assessment of these that led him to claim that the fetus does not enjoy rights to be balanced against those of the mother. Laws against abortion were only intended, he argued, to protect the health of the woman. While Blackmun's exegesis of the legislative and constitutional history was as superficial as Taney's in Dred Scott, we should not fail to see that the opinion was based upon a misguided method of original intent, not natural law.
The rhetorical and dialectical point I want to make is that it makes no more sense to jettison a method of original intent because it has been used with disastrous results than it is to throw out natural law because frequently it has been a foil for ideological jurisprudence. Willful and ideologically disposed judges are just as liable to tell false stories regarding original intent as they are to concoct false theories about human nature. I myself no more trust Justice Black's historical imagination than I trust Justice Brennan's philosophical understanding of natural law. But banishing historical imagination and moral philosophy from judicial interpretation of the law is no solution to the problem of remedying the errors they make.
There is no other (scholarly) way to respond to willful, ignorant, and ideological uses of a method than carefully and patiently to distinguish between its sound and unsound formulations, and between its responsible and irresponsible uses. One can agree that the theoretical tool of natural law is problematic; one can ever agree that in the climate of today's legal culture it is especially apt to be used in a way that causes more harm that good. But it is quite another thing to set up an uncompromising either-or between fidelity to original intent and judicial respect for natural principles of justice. I don't buy this either-or proposition. It is too easy, and is itself prone to ideological distortion. Rather than reading theories “into” the Constitution, it can read theories “out.” A judge has no more authority to do the one than the other.
Finally, I should say that I have never said that Judge Bork is himself a “moral skeptic” or relativist—only that his judicial philosophy too quickly and completely rules out natural law. I believe he was a first-rate judge and remains a timely and effective critic of judicial activism. Although I think that his formulation of what is at stake in natural law theory is one-sided, I for one am indebted to what he has had to say on these matters.
Russell Hittinger is an Associate Professor in the School of Philosophy at the Catholic University of America and a Research Fellow at the American Enterprise Institute.
William Bentley Ball
Judge Bork's essay says much that is important and appealing. Once again, it is fun to see him taking swings at the liberal-left (and connecting). And it is refreshing to read a legal positivist who, unlike so many of that persuasion, is open and upfront with his convictions. He takes exception to my article in the June 1990 Crisis. I think it useful for First Things' readers that, first, I discuss the genesis of that article.
I had tried a case in Wisconsin in which I sought to prevent the jailing of Amish parents and the governmental obliteration of their religious way of life. I argued (in trial court and ultimately before the Supreme Court [Wisconsin v. Yoder, 1972]) that the state's criminal prosecution of these people for refusing, on religious grounds, to enroll their children in public high schools violated the Free Exercise Clause of the First Amendment. The Supreme Court agreed. That federal clause had long been held by the Court to be applicable to the states through the Due Process Clause of the Fourteenth Amendment. The Court's reasoning was that “due process” is a term embracing “substantive,” as opposed to merely “procedural,” rights. “Substantive,” the Court said, describes rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The free exercise of religion, said the Court, is one such right. Going back to medieval times, English courts had recognized a power in judges to go beyond the letter of the law “where equity fulfills its spirit, which is justice.” The American Constitution did not disturb this natural law principle.
Judge Bork blasted the Yoder decision on two grounds: (1) that the Court's upholding of the Amish really constituted an' ‘establishment'' of their religion, and (2) that its resort to the “due process” (natural law) foundation for its ruling was in error. In Crisis, I took on Bork in reference to both points, but I now see that I had better take up the second again.
Contrary to Bork's charge, I have not engaged in any proposal that “the Court should strike down, on the basis of natural law, statutes that contravene nothing in the Constitution.” In Yoder, I urged courts to strike down a statute precisely because, as applied to the Amish, it did contravene the Constitution. In dozens of cases in twenty-two states, I have contended against statutes which, because they violate fundamental liberties or natural rights, violate due process. Bork's hang-up with me on this point arises from his view that “due process of law,” as given in the Fifth and Fourteenth Amendments, refers solely to guarantees of fair procedure. As Bork well illustrates in The Tempting of America, this conception has been consistently rejected (he would say “violated”) by the Court. Back in 1819, the Court said that the source of our “due process” concept was the Magna Charta, a declaration of rights indeed not limited to procedural rights. But it is important to see what is implied in limiting due process to “fair procedures.”
Suppose that, in response to population-control pressure groups, Maryland (and Maryland would be just the state to do it) enacts a statute requiring the aborting of a third child born of any low-income woman who already has two. Nothing in the black print of the Maryland and federal constitutions except their due process clauses protects such a woman's liberty to give birth or the right to life of the unborn child. The “right to life, liberty, and property” phrasing is found solely in those clauses. But those are substantive, or natural, rights, and Bork says that such rights are not protected by those clauses.
Procedural rights are indeed important, and Bork will allow (nay, insist) that the Maryland lady have procedural due process. So she will be entitled to the right papers, various forms of notice, with adequate numbers of copies in due form, a hearing, etc. But that is all she will take from the due process clauses. After such procedures are properly carried out, the abortion procedure will also be. The day-to-day keepers of due process, in this view, are the court clerks and the process servers. Of course, this woman, in the Bork view, can try to get the state or federal constitutions suitably amended or get a protective statute enacted. And while she raises funds to that end, organizes a PAC, and establishes a political force to effect change, women like her will keep getting aborted.
I am sure Judge Bork will call that a bizarre example of his principle, but example of his principle it truly is. He himself has supplied another that is equally hair-raising. In 1927, in Buck v. Bell, the Court upheld a Virginia statute authorizing the sterilizing of mental “defectives.” The great legal positivist. Justice Holmes, remarked that in his opinion “three generations of imbeciles are enough.” As to this and a related case, Bork, in The Tempting of America, says that “nothing in the Constitution made the state of being fertile a civil right.” True enough, if judges may not resort to substantive due process.
Contrary to what Bork says, I have not expressed the belief “that judges may properly amend the Constitution with their version of natural law,” or with any version of anything. (Nor, I think, have Judge Thomas, Russell Kirk, Professor Arkes, or Professor Hittinger.) That is like saying, “Since Catholics worship images, they disobey biblical strictures.” The trick in the phrasing is the premise that they worship images. The trick in Bork's phrasing is the premise that natural rights are not protected by the Due Process Clause. The tradition is otherwise. Bork, in The Tempting, quotes Justice Marshall as suggesting that “the nature of society” may prescribe limits on the legislative power. That was in 1810. Bork says that Marshall adopted the idea of “principles of natural justice as a source of judicial power.” This Marshall was John, not Thurgood. John was affirming natural law before Thurgood ever tried his hand at it.
Finally, we come to an important question relating to who's who. Bork says that Professor Arkes and I want the Supreme Court (and presumably all benches) to be filled with judges who share our moral views. Speaking for myself, he is exactly right. But I well realize what nags Bork. That is the fact that, for example, seven justices in Roe v. Wade reached out into the realm of fantasy to summon a “right of privacy” as a basis for killing people. But these were his brother legal positivists. They can scarcely be accused of having resorted to Higher Law. They resorted to what one can properly call Lower Law or Unnatural Law. I agree that, under their reading and my reading of “due process,” they could do that. But the answer is not to constrict due process to procedure (thus leaving us largely at the mercy of majorities). Instead it is to labor for the seating of judges who, respectful of the legislative will, nevertheless embrace the saving concept of a transcendent order.
Willliam Bentley Ball, a constitutional law specialist, is a member of the firm of Ball, Skelly, Murren & Connell (Harrisburg, Pa.).
Robert H. Bork
It is, of course, flattering to have one's ideas about the relationship of constitutional adjudication to natural law taken seriously by so distinguished a trio, and it is cheering that the discussion proceeds in a civilized and thoughtful manner, which is not invariably the case in these matters. Some, though by no means all of the differences expressed seem to spring from confusion about what I said. I must take the responsibility for that, so I will attempt, outdoing Richard Nixon, to make about a half-dozen things perfectly clear.
It sometimes feels as if Hadley Arkes and I are, in the most agreeable way, talking right past each other. Let me sec if I can dispel the “benign haze” that Arkes perceives. I wrote about the duties of judges with respect to the Constitution and denied that a judge is entitled to discover and enforce natural law principles that are not found in the Constitution. When he is at work, his concern must be with positive law and positive law only. A moral principle binds, as Arkes puts it, but it binds morally. If the people have enacted an immoral law, it is the judge's duty to enforce it or resign. He may resign because he agrees, as he should, that there is “morality outside the positive law,” but that morality is not his business while on the bench.
That is why I wrote, just over twenty years ago, the sentence that disturbs Professor Arkes: “Truth is what the majority thinks it is at any given moment precisely because the majority is permitted to govern and to redefine its values constantly.” I never wrote a better line. And it has nothing to do with moral or cultural relativism, the view that there is no moral truth apart from the opinions of the majority; it has to do with democracy. The article (“Neutral Principles and Same First Amendment Problems,” Indiana Law Journal 47 ) was discussing Brandeis' statement that one of the functions of speech protected by the First Amendment is the “discovery and spread of political truth.” The highest political truth for a judge is the Constitution of the United States, but if a statute does not contravene the Constitution, it contains the “truth” the judge must apply, because the people govern. It is kind of Hailey Arkes to speak of my “inclination to move steadily away from skepticism,” but the truth is that I have never been a skeptic and have not moved. The misperception arises because when I speak of the judge's obligation to rid his judging of moral principles not found in the law, some readers think I am denying that there are such principles.
There appears to be a similar confusion about my statement that people differ over the source and content of natural law. As an empirical observation, that seems undoubtedly correct. Nor does Richard Hooker dispel any confusion, since there is none. Natural law may be “ordained by God” and yet not be divine law because discoverable by reason rather than by revelation. If one believes that God created man and then reasons from the nature of man to natural law, the ultimate source of natural law would appear to be God.
Arkes advances the “axioms of reason” as natural law in constitutional adjudication. It seems a bit imperialistic to claim the field of logic for natural law. The meaning of natural law is in danger of severe dilution if so much is placed within its boundaries. There is certainly no objection to the use of reason to decide that a principle in the Constitution has necessary corollaries. Much reasoning, legal and nonlegal, proceeds in that fashion. Though I do not think, as some of my interlocutors appear to, that Chief Justice John Marshall is the final word on matters legal, this method of reasoning from the implications of written constitutional principles to subsidiary principles is indispensable and was brilliantly demonstrated by Marshall's opinion in McCulloch v. Maryland. If logical reasoning is natural law I hereby welcome it into the courtroom and wish that it were more frequently to be found there.
It came as something of a shock to learn that my view that natural law is binding on a judge only when incorporated in positive law is itself natural law. I must decline the honor. That view does not rest on the “fitness of things” or the “logic of the law” but rather upon the statements at the founding of what the duties of courts are and upon the design of our government. If there was evidence that the framers and ratifiers intended judges to apply natural law, I would accept that judges had to proceed in that fashion. When an institution is intended and designed to operate in a particular way, when its members take an oath to operate in that way, it seems appropriate that the institution and its members should do so. I suppose it could be said that this duty of fulfilling an obligation is itself natural law. If so, it is a piece of natural law that requires the judge to confine himself to positive law in all else.
To Russell Hittinger's complaint that in my piece, “The complex issues [of natural law] are flattened out, and reduced to the problem of judicial review,” I must reply that I addressed natural law in relation to judicial review only because Hittinger, Arkes, and William Bentley Ball did so. I had no intention, and for purposes of this discussion no need, to explore the “extent or depth of the problem of natural law” more generally.
The questions Hittinger puts—do I believe that “a responsible method of original intent can locate a natural law of rights or political institutions embedded in our Constitution?” and, if so, do I believe that “this can have any bearing upon the judge's interpretation and application of the law?”—tend to be swallowed up when he goes on to say that the question of deciding between two schools of natural law jurisprudence is “whether or not one or the other comports with the original intent of the framers and ratifiers.”
We discern the original intent by asking what the words of the Constitution meant to reasonable men at the time of the ratification. In that inquiry, we have not only the text itself but the assistance of a great many secondary materials, such as the records of the Philadelphia Convention and the debates of the time. If we thus determine the original understanding of a provision, the question of which school of natural law best comports with that understanding is greatly diminished in importance—indeed, becomes academic. The only case I can imagine in which a judge would want to know about natural law would be if he learned that a particular version of natural law demonstrated that the text's words meant something other than we might think today and, further, that that version of natural law was widely held by the framers and ratifiers.
Hittinger's claim that possibly “more mischief has been done in the name of one or another doctrine of original intent or ‘originalism' than under the rubric natural law” is misleading. He states that the Dred Scott, Everson, and Roe opinions, which he correctly describes as “notorious and pernicious,” were “misguided efforts to resolve constitutional disputes via original intent.”
Roe, contrary to Hittinger's reading, did not pivot on Blackmun's survey of past law to show that the fetus does not enjoy rights to be balanced against those of the mother. The case pivoted on the decision that the “right to privacy” included a right to an abortion—both natural right concepts—for, without the right to an abortion, there would have been no occasion to discuss the rights of the fetus. Moreover, the suggestion that the fetus has rights under the Due Process Clause of the Fourteenth Amendment is incorrect; the ratifiers were not addressing that problem at all. The Constitution has nothing to say about abortion, either way. That is a subject for moral debate and moral choice by the American people.
Insofar as those opinions spoke in the name of originalism, moreover, their efforts were not “misguided” but disingenuous. Those were natural law decisions (in the sense that they rested on nothing in the Constitution) disguised as decisions based on the original understanding. Because originalism—applying the words as they were meant by the ratifiers—better fits our notion of what law is, judges who wish to arrive at results they prefer will, whenever possible, dress their personal views in the language of the original understanding. Any judge can speak in the name of originalism; that does not mean he is being guided by the original understanding, and the authors of those three opinions were not. No announcement of a philosophy, be it natural law or originalism, can control a lawless judge. The difference is that a natural law approach invites the judge to be lawless, while originalism requires that he actively dissemble in order to be lawless.
Perhaps Mr. Ball will one day accept the fact, which I have pointed out to him before, that I never “blasted” Wisconsin v. Yoder, the case he is proud of winning. I made the simple, and entirely unoriginal, point that the Supreme Court exempted Amish children from Wisconsin's compulsory education law in the name of the Free Exercise Clause of the First Amendment, but that if Wisconsin had created the same exemption by statute, the Court would have struck it down in the name of the Establishment Clause of the same amendment. I then said: “This is not to say that Yoder was wrongly decided. It is to say that something has been wrongly decided when the two religion clauses have by interpretation been brought to a collision.” An unexceptional proposition, one would have thought.
Ball first denies proposing that “the Court should strike down, on the basis of natural law, statutes that contravene nothing in the Constitution,” or, a little later, “with any version of anything,” but, in between, he proposes precisely that. He finds that a hypothetical forced-abortion statute violates nothing in the Constitution except the Due Process Clause because the law violates a woman's natural rights. Natural rights perform for Ball the same function natural law serves for Arkes: a means to strike down statutes that contravene nothing in the Constitution. No natural rights were put into the Due Process Clause by the framers and ratifiers. Ball, and many other people, prefer to overlook the embarrassment that the word “due” modifies “process,” not “substance.”
Nor is he aided in attributing substance to the clause by his observation that “the source of our ‘due process' concept was Magna Charta, a declaration of rights indeed not limited to procedural rights.” Our due process concept derives from the provision of Magna Charta that says, “No freed man shall be taken, imprisoned, disseised [dispossessed of real property], outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” The right to be tried by “the law of the land” in time became the right to “due process of law.” The derivation Ball relies on is from one phrasing of a procedural guarantee to another. In any event, one can ransack the entire Magna Charta without finding anything of assistance to Ball's unfortunate hypothetical woman.
There is little point in positing unlimited judicial power on the ground that majorities may run amok. So may judges, and they have. I would rather entrust the making of m w laws to a majority of the people rather than to a smaller majority—five out of nine. It is not clear why Mr. Ball thinks the people cannot be trusted to make decent laws but can be trusted to choose judges who will be faithful to a good (but largely unspecified) transcendent order. Any constitutional theory that lodges in judges the power to strike down all bad laws actually grants them power to strike down any law they think bad, regardless of what you and I and a majority of our fellow citizens think.
The Due Process Clause has no substantive meaning. Nobody knows what will turn out to be in the clause until a judge pulls out the rabbit he has put there. Or it may be something quite different from a rabbit, and rather more sinister. If Mr. Ball authorizes judges to go on the bench with their own individual annotated volumes of the transcendent order, the decisions may veer to the right or to the left, no one can say in advance. But one thing is certain: we are going to get the judicial equivalents of Roe v. Wade, again, and again—forever.
I hope this exchange has been useful to the debate over the role of judges in a democracy. It has been useful to me, and I suspect that the exchange will continue. May I always have such congenial and worthy adversaries.
Robert H. Bork, the John M. Olin Scholar in Legal Studies at the American Enterprise Institute, is author of The Tempting of America: The Political Seduction of the Law.