Written Law vs. Judges’ Views : Controversy on Bork Puts Constitution in Spotlight

In an odd coincidence of history, the 200th anniversary of the signing of the Constitution on Sept. 17 will coincide almost exactly with the opening of an extended discussion of one of the Constitution’s most enduring controversies.

Starting in mid-September, the Senate will be debating the nomination of Robert H. Bork to the Supreme Court, and a key issue will be how a judge is meant to interpret the Constitution and the relationship between a judge’s official role and his own personal views.

To President Reagan, the answers are simple. In a recent Saturday radio speech, he said that judges should “interpret the law, not make it.”

For many judges and legal scholars, however, the matter is far more complicated.

The issue “takes the Senate into the middle of an intellectual thicket that has occupied academics and lawyers for about 50 years--the extent to which judicial decision- making depends on the individual convictions of judges on the one side and is a more impersonal, constrained activity on the other,” Yale law professor Paul D. Gewirtz says.

Part of the problem is that virtually all judges--whether liberal or conservative, whether self-styled activists or champions of judicial restraint--sincerely believe the decisions they write are based on the written Constitution.

More important, contrary to the view implicit in Reagan’s remark, the law--especially at the level of the Supreme Court--is seldom so sharply defined and clear-cut that questions of how it should be interpreted are obvious to all.

As Bork himself wrote in a 1968 article, the Constitution “is least precise where it is most important.” Often, Bork noted: “The text of the Constitution, history and precedent . . . suggest that the court must enter a field and yet do not answer the important questions found there.”

To guide courts in those all-too-common situations, judges and legal scholars have developed a range of theories about how the Constitution should be interpreted, what the Founding Fathers intended and how that intent should be followed or modified to deal with situations in the contemporary world.

Where Bork fits into that range of legal theories--whether his beliefs fall too close to one fringe--will be a key issue in the impending confirmation battle, senators say.

Law Can’t Be ‘Pendulum’

Senate Judiciary Committee member Paul Simon (D-Ill.), a Bork opponent, predicted that the Senate will shy away from a nominee perceived as too extreme. “The Senate,” he said, “cannot allow the law to become a pendulum swinging back and forth, simply following ideological changes at the White House.”

The issue of a judge’s role is particularly sharp this time, not only because Bork would be a pivotal vote but also because one of the key elements in his judicial philosophy touches the heart of one of the Constitution’s most ambiguous elements: its almost-contradictory effort to enshrine both the will of the majority and the rights of minorities.

The Constitution set up a democracy in which the majority rules, but it also set aside certain areas in which the majority is not allowed to rule. Bork argues that the areas outside majority control--areas in which judges are often asked to overturn decisions of other government officials--must be defined very narrowly lest unelected judges undermine democracy.

Critics say Bork carries this “majoritarian” approach--the impulse to accept whatever a majority wants to do, as reflected in the actions of local or federal legislative bodies--to such an extreme that he would sharply reduce protection given to individual rights guaranteed in the Constitution.

Sometimes It’s Clear-Cut

In some cases, the Constitution is reassuringly clear-cut. It plainly says that the President must have “attained to the age of thirty-five years,” for example.

But the issues that pull cases to the high court often bring out the tension between majority and minority rights, calling on the justices to decide whether the majority--as reflected in legislative decisions or other public policies--has encroached too far on territory covered by minority rights.

And the justices, whether conservative or liberal, must reach decisions with only the most indirect guidance from the text of the Constitution.

The Fourth Amendment, for example, forbids police from conducting “unreasonable searches and seizures” but does not define what is “reasonable” or even what constitutes a search. The Eighth Amendment forbids “cruel and unusual punishments” but sets out no test. And while those two parts of the Constitution at least have defined subject matters--searches and punishments--other sections appear totally open-ended.

When Congress debated the Bill of Rights shortly after the Constitution was adopted two centuries ago, James Madison wrote language that became the Ninth Amendment, which says that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Neither Madison nor anyone else at the time attempted to list what those unlisted rights might be.

Question of Privileges

Similarly, the 14th Amendment, added after the Civil War, guarantees, but does not define, “due process of law” and forbids any state from abridging “the privileges or immunities of citizens of the United States” without defining what those “privileges or immunities” are.

The position taken by most legal academics--and by most federal judges for at least a generation--is that those relatively open-ended sections of the Constitution were designed to protect individual liberties against the “tyranny of the majority” and that the courts are the proper institution to do the protecting.

The “extremely open-textured” clauses of the Constitution “are difficult to read responsibly as anything other than quite broad invitations to import into the constitutional decision process considerations that will not be found in the language” of the document itself, Stanford University’s former law dean, John Hart Ely, wrote in an influential 1980 book on the subject.

Supreme Court Justice William J. Brennan Jr., the leading activist among the current justices, took a similar position in a speech last fall. “It seems inescapable to me that the choice by the framers to employ general and relativistic words was a deliberate one,” he said.

‘Majestic Generalities’

Those who wrote the Constitution were “capable of communicating specific mandates when that was their intention,” he argued. When they, instead, used “majestic generalities,” judges must “respect that choice” and rule on cases by “deriving and then applying the principles and values that underlie the clause.”

Brennan was one of the key figures during the late 1950s and 1960s as the activist Warren court applied those “majestic generalities” to bring about vast changes in American society. The Warren court’s activism, in turn, generated a strong conservative reaction. Bork, beginning in the late 1960s, was one of the original figures in that conservative movement, and he has remained one of its leaders.

Bork’s exact views remain somewhat unclear and will be the subject of intensive scrutiny once the hearings on his nomination begin Sept. 15. But while the specifics are in doubt, Bork’s general theme during the last decade and a half has been that judges are the wrong people to be deciding what the open-ended sections of the Constitution mean. In a democracy, he says, such judgments should mostly be left up to legislators.

“It is not at all clear that the framers (of the Constitution) assigned the federal judiciary a major role,” Bork wrote in a law review article in 1985. In a speech the year before, he argued that “much of the new legal scholarship” has a “fundamental antipathy to democracy.”

Two Attacks Likely

If the law abandons majority rule, Bork wrote in a major 1971 article, “why should the court, a committee of nine lawyers, be the sole agent of change . . . why not argue the case to some other group, say the Joint Chiefs of Staff, a body with rather better means for implementing its decisions?” Bork’s position is likely to be subjected to at least two different attacks during the debate on his nomination.

The first argument is that Bork’s position distorts what the Constitution says. Letting elected officials, who represent the majority, define what the Constitution’s restrictive clauses mean would effectively nullify restrictions on majority rule, Bork’s opponents say. That approach, they charge, inevitably would harm the rights of individuals and minorities that the courts have tried to protect.

“Over the past 30 years, the Supreme Court has been the principal protector of minority rights,” said Ralph Neas of the Leadership Conference on Civil Rights, one of the organizations opposing the nomination. “Because the confirmation of an ultra-conservative would dramatically alter the balance of the court, the civil rights achievements of the past 30 years would be in jeopardy.”

A second argument is that Bork’s position is simply a convenient excuse to oppose liberal judicial decisions and that he would vote differently if a majority of the court were able to impose conservative decisions on liberal legislatures.

Opposed Rights Act

Burke Marshall, Yale law professor and assistant attorney general for civil rights during the John F. Kennedy Administration, cited Bork’s opposition in 1963 to what became the 1964 Civil Rights Act, which guaranteed that public accommodations be open to all races.

“Bork objected to majority imposition of their view of morality on what he called the minority, those people who wanted to discriminate” on the basis of race, Marshall said. By contrast, Marshall said, Bork takes precisely the opposition posture on gay rights--that the majority can impose its morality on a minority.

“I think it’s hard to trace a principled view on those two things.”

Bork’s friends strongly deny that charge. Between 1963 and now, he has simply changed his mind about the majority’s right to put “public morality” into law, friends say. He would, they insist, apply his philosophy of judicial restraint even-handedly.