A Perceptible Consensus About Certain Principles : In Judging the Bork Hearings, American People Showed Support for Dynamic View of Constitution

The hearings into the nomination of Judge Robert H. Bork to the Supreme Court raised troubling issues which reasonable people could, did and no doubt will continue to disagree.

These include the role of the Senate in considering confirmation of a judicial appointment, the proper scope of inquiry into a candidate’s philosophical and legal views, the manner in which this particular inquiry was conducted and, of course, the outcome.

Beneath that disagreement, however, the hearings and the public debate that surrounded them reflect a degree of consensus concerning the Constitution itself and the significance of individual rights, which to some of us came as a bit of a surprise.

Those of us who believe strongly in civil rights and liberties are inclined at times to see ourselves as a minority, and when the subject arises in conversation we are perversely fond of recalling a poll that was taken in Michigan (or was it Iowa?) a few years ago (maybe quite a few), in which it was demonstrated, in some fashion (we don’t remember quite how) that if the Bill of Rights were put up to popular vote, it would lose. The implication of this legendary study is that the spirit of freedom and equality that gave rise to our noble document, and later to the 14th Amendment, is alive only within an enlightened minority.

The Bork hearings--not the outcome, necessarily, but the process--have undermined that pessimistic view. Granted that the outpouring of opposition to Judge Bork was in part orchestrated, that it was limited to selected issues and that some consider it to have been misdirected.

The point is, it was there, and in such intensity that all senators on the Judiciary Committee, whatever their views about politics in general or Judge Bork in particular, tacitly accepted as their premise for questioning and debate that Americans care deeply about their constitutional rights. Further, that they generally approve of Supreme Court decisions protective of those rights. And finally, that if Bork held the constrained views of constitutional protection for individual rights that his opponents said he held, then he was indeed outside what they and the public considered to be the mainstream of both constitutional theory and popular thought.

Moreover, despite the arguments of some scholars that it is meaningless to talk about shared values in a community so diverse as ours, there emerged from the hearings and their context a perceptible consensus about certain principles such as privacy, freedom of speech and equality, which even the most reclusive of academics and judges cannot fail to observe.

Notwithstanding problems of scope and definition, it appears, for example, that most of us do believe that there exists an area of personal privacy--perhaps autonomy is a better word--which courts should protect against government interference; that the freedom of speech guaranteed by the First Amendment is broader than political speech and embraces even (who would have thought?) a threat to kill the President of the United States absent a clear and imminent danger of the act being committed, and that the equal-protection clause of the 14th Amendment should be broadly interpreted in the case of women as well as blacks and ethnic minorities. As to integration, no evidence of a developed national consensus could be more convincing than the spectacle of Sen. Strom Thurmond (R-S.C.) questioning Judge Bork to confirm his approval of Brown vs. Board of Education.

More generally, I submit, the hearings demonstrated public support for a dynamic view of the Constitution--one in which courts, though constrained by constitutional text, structure and history, nevertheless assume continuing responsibility for protecting the values of freedom and equality in a changing world. Whatever else one thinks of the hearings, these lessons are of lasting value.