Bork’s View of Constitution at Heart of Debate

As a Yale University law professor in the 1960s, Robert H. Bork was offended by what he saw as the liberal activism of the Supreme Court under Earl Warren. He sought to develop a “neutral” and “principled” way of reaching judicial decisions.

His solution sounds simple. When judges confront cases involving such controversial issues as abortion, he argues, they must refer to what the framers of the Constitution intended. To invent new rights, such as the right to an abortion, is to depart improperly from the specific clauses of the Constitution, he maintains.

Bork’s call for relying on the “original intent” of the Constitution’s authors has made him an intellectual hero among conservative attorneys and gained a disciple in Atty. Gen. Edwin Meese III. And it has helped make him President Reagan’s nominee to a vacancy on the Supreme Court.

It is also at the heart of the intense controversy over Bork’s nomination, not only among politicians but also among legal experts. Many historians and constitutional scholars say there is little evidence that the framers intended that the Constitution be read as narrowly as Bork proposes. And some insist that Bork’s view of “original intent” is flat-out wrong.

“So far, it has been a slogan to attack liberal decisions,” said University of Chicago law dean Geoffrey Stone. “It has not been taken seriously even by those who advocate it.”

Liberals point out that the authors of the Constitution, perhaps fearing just the kind of limited view of rights put forth by Bork, added to the Bill of Rights a Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

A Different Perspective

Bork has a different perspective. He argues that the Founding Fathers believed in the rule of the majority and therefore courts should defer to laws drafted by state legislatures unless the Constitution explicitly directs otherwise. This means that in controversial areas such as abortion, homosexuality and school prayer, the final word would lie with state legislatures.

Judges must “focus on each specific provision of the Constitution rather than upon generalized values . . . and not construct any new rights,” Bork said in a 1984 speech at the American Enterprise Institute here. “The makers of our Constitution thought they provided wide powers to representative assemblies and ruled only a few subjects off limits by the Constitution.”

“Where the Constitution is silent,” as it is on subjects such as abortion, judges have no right to tamper with the decisions of elected legislators, Bork added in a 1985 speech in San Diego.

Freedom of Individual

Bork’s critics insist that he has it backward. Foremost on the minds of the Constitution’s authors, they say, was protecting the freedom of the individual from intrusion by governments at all levels, state as well as federal.

“When conservatives like Bork treat (individual) rights as islands surrounded by a sea of government powers,” wrote Harvard University political scientist Stephen Macedo, “they precisely reverse the views of the founders as enshrined in the Constitution, wherein the government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.”

James Madison Invoked

Bork and Meese frequently invoke James Madison, the prime author of the Constitution and the Bill of Rights, as one who believed largely in the power of majority rule.

‘Madisonian System’

In his 1985 speech, Bork said the United States has “what we now call a Madisonian system . . . which allows majorities to rule in wide areas of life simply because they are majorities.” Bork concluded that unless a particular right was clearly intended, the majority should decide.

But others say this was not Madison’s intent.

“Madison thought the greatest threat to liberty came from state legislatures,” said Stanford University historian Jack N. Racove, a Madison scholar. In his letters, Madison frequently voiced scorn at the “idiocy” of state legislatures and was determined to create a system of checks on majority power, he said.

“To say the courts should defer to legislature majorities would be the opposite of Madison’s intention,” Racove argued.

Not Legal Philosophizing

The fight over the “original intent” of the Constitution is not mere legal philosophizing. Bork and Meese have used the thesis to harshly attack the Supreme Court’s 1973 ruling giving women a right to an abortion.

Eight years before, the high court had thrown out a Connecticut law prohibiting adults, even married couples, from using contraceptives.

The Constitution includes no right to use contraceptives, but Justice William O. Douglas concluded in the Connecticut case that the Bill of Rights created a “zone of privacy” in which government has no authority to intrude. The court majority used this same principle in 1973 to strike down all the existing state laws outlawing abortion.

Bork criticized the court’s reasoning as “utterly specious” and “unprincipled.” “Since there is no constitutional text or history to define the right,” he said, “privacy becomes an unstructured source of judicial power.”

Applied Same View

As a judge on the U.S. Circuit Court of Appeals for the District of Columbia, Bork applied the same view in 1984 in a ruling against the appeal of a sailor who had been dismissed from the Navy because of his homosexuality. Bork held that the court had “no warrant” to protect homosexuals from discrimination because the Constitution’s authors had no intention of creating such a right.

Liberals, by contrast, typically focus on the Constitution’s broad guarantees of “liberty” and “equal protection of the laws.” Judges, they insist, are obliged to protect these guarantees.

Thus, Justice William J. Brennan Jr., in a 1985 speech at Georgetown University, expressed contempt for Bork’s view that the court could not stray beyond those individual rights explicitly contemplated by the Constitution’s authors.

“This is a choice no less political than any other,” Brennan said. “It expresses antipathy of claims of minority rights against the majority.”

Notion of Original Intent

Here is how Bork’s notion of original intent may bear on some highly controversial issues:

DEATH PENALTY--Bork says the court has no authority to overturn the death penalty, noting that it is explicitly cited in the Constitution. The Fifth Amendment, he pointed out in an interview last year, mentions “capital crimes” and says no person may be “deprived of life . . . without due process of law.”

“The death penalty is specifically referred to, and assumed to be an available penalty, in the Constitution itself,” he said. “It is a little hard to understand how a penalty that the framers explicitly assume to be available can somehow become unavailable because of the very Constitution the framers wrote.”

Court Majority Agrees

The current court majority agrees with Bork’s view. In recent years, the court has reversed death penalty judgments only when the lower courts have failed to guarantee “due process of law.” However, Justices Brennan and Thurgood Marshall maintain that the death penalty violates the Eighth Amendment’s ban on “cruel and unusual punishment.”

ABORTION--The current court majority believes that the Bill of Rights, interpreted broadly, includes a “right to privacy” that limits government’s prerogatives to intrude into such personal matters as abortion. Bork says the court is wrong because the Constitution neither mentions nor was intended to cover such matters.

Many legal experts--probably a majority--agree with Bork’s view in this area. A National Law Journal poll of 405 state and federal judges released last week found that only 44% thought the Supreme Court was correct in its 1973 ruling granting women a constitutional right to an abortion, although 58% said they favored such a right for women.

Overturning a Precedent

Significantly, however, only 17% of the judges polled said the 1973 decision should be reversed now. Bork has not said whether he thinks the 1973 precedent should be overturned, but he said in a speech in January that justices are “freer . . . to overturn a precedent” that is not based on the intentions of the Constitution’s authors.

CIVIL RIGHTS--Most of the Supreme Court’s civil rights rulings are based on the 14th Amendment, which was passed after the Civil War to ensure legal equality for blacks.

When Congress passed the amendment in 1866, it apparently had no intention of outlawing school segregation, because it also set up segregated schools in the District of Columbia. Nevertheless, Bork has endorsed the Supreme Court’s 1954 Brown vs. Board of Education decision, which outlawed school segregation, because “it was intended to enforce a core idea of black equality against government discrimination.”

‘Can’t Have It Both Ways’

Bork’s liberal critics have been quick to pounce on his reliance here on a “core idea” rather than the specific intent of a constitutional provision. “He can’t have it both ways,” said Herman Schwartz, American University law professor. “You either stick with the specific original intent or try to discern the core value of an amendment.”

On other civil rights issues, Bork has ignored the “core idea of black equality.” He has criticized a 1948 Supreme Court ruling against racial housing covenants, for example, on grounds that such discrimination is private and therefore not covered by law.

At the same time, Bork argues that the 14th Amendment prohibits affirmative action in favor of blacks. Some legal experts say there is no evidence that the amendment’s authors intended that. The University of Chicago’s Stone said: “I don’t see how you could be in favor of original intent and judicial restraint and come out with the view that affirmative action violates the 14th Amendment.”