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"A Country I Do Not Recognize"
The Legal Assault on American Values
By Robert H. Bork
Hoover Institution PressCopyright © 2005 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
Constitutional Law without the Constitution: The Supreme Court's Remaking of America
Lino A. Graglia
The President, who exercises a limited power, may err without causing great mischief in the state. Congress may decide amiss without destroying the Union, because the electoral body in which Congress originated may cause it to retract its decision by changing its members. But if the Supreme Court is ever composed of imprudent or bad men, the Union may be plunged into anarchy or civil war.
— Alexis de Tocqueville, Democracy in America
The function of law in a society, at least a democratic society, is to express, cultivate, and enforce the values of the society as understood by the majority of its people. In our society today, this function has been perverted. Much of our most basic law, largely taken out of the hands of the people and their elected representatives by the Supreme Court, functions instead to overthrow or undermine traditional values, customs, and practices through the mechanism of judge-made constitutional law divorced from the Constitution. Instead of serving as a guarantor of basic rights, the Constitution has been made the means of depriving us of our most essential right, the right of self-government. The system of decentralized representative self-government with separation of powers created by the Constitution has been converted by the Court into government on basic issues of domestic social policy by a tiny judicial oligarchy — by majority vote of a committee of nine lawyers, unelected and holding office for life, making policy decisions for the nation as a whole from Washington, D.C. — completely centralized, completely undemocratic, with the judiciary performing the legislative function.
The Overthrow of the Constitution by Constitutional Law
Constitutional law may be defined for most practical purposes as the product of "constitutional judicial review," the power of judges, and ultimately the justices of the Supreme Court, to declare invalid and unenforceable the laws and acts of other officials of government on the ground that they are prohibited by the Constitution. The central fact of contemporary constitutional law, however, is that it has very little to do with the Constitution. Nearly all the Supreme Court's rulings of unconstitutionality have little or no basis in, and are sometimes in direct violation of, the Constitution. Their actual basis is nothing more than the policy preferences of a majority of the Court's nine justices. The power to assert that the Constitution prohibits any policy choice of which they disapprove has enabled the justices to make themselves the final lawmakers on any public policy issue that they choose to remove from the ordinary political process and to assign for decision to themselves.
Over the past half-century the justices have chosen to make themselves the final lawmakers on most basic issues of domestic social policy in American society. These include issues literally of life and death, as in the Court's decisions on contraception, abortion, capital punishment, and assisted suicide; issues of public order, as in its decisions on criminal procedure, public demonstrations, and vagrancy control; and issues of public morality, as in its decisions on pornography and homosexuality. These are the issues that determine the basic values, nature, and quality of a society. In essence, the Court now performs in the American system of government a role similar to that performed by the Grand Council of Ayatollahs in the Iranian system: voting takes place and representatives of the people are elected as lawmakers, but the decisions they reach on basic issues of social policy are permitted to prevail only so long as they are not disallowed by the system's highest authority. The major difference is that the ayatollahs act as a conservative force, while the effect of the Supreme Court's interventions is almost always — as on every one of the issues just mentioned — to challenge, reverse, and overthrow traditional American practices and values. Another major difference is that the name and function of the chief ayatollah is openly stated and apparently well understood in Iran. In the United States the name of the single most important figure in the making of domestic social policy in the last half of the twentieth century, William J. Brennan Jr., was and is known to very few of those he effectively governed, a shameful indictment of a supposedly democratic system.
The salient characteristic of contemporary American society is a deep ideological divide along cultural and class lines, a higher degree of polarization on policy issues than at any time within memory. On one side of this "culture war" is the majority of the American people, largely committed to traditional American values, practices, and institutions. On the other side is what might be called the "knowledge" or "verbal" class or "cultural elite," consisting primarily of academics, most importantly at elite schools, and their progeny in the media, mainline churches, and generally, the verbal or literary occupations — people whose only tools and products are words. At one time the most educated and successful members of a society could be expected to be its strongest defenders. Today, however, for a variety of reasons, they — particularly academics — often see it as part of their function to maintain an adversary relationship with their society, to challenge its values and assumptions, and to lead it to the acceptance of newer and presumably better values.
The justices of the Supreme Court, usually products of elite schools, especially law schools, are themselves members of this cultural class. Sharing its values and seeking its accolades, they are strongly tempted to see that its values and policy preferences prevail. Possessing nearly unlimited de facto power, though not legal authority, to advance those policy preferences by enacting them into law in the name of enforcing the Constitution, they rarely resist the temptation for long. The extraordinary result in a supposedly democratic society is a system of law based on the values and preferences of a powerful nine-person elite, enacted by as few as five of its members, contrary to the values and preferences of the majority of the American people. William F. Buckley Jr., famously and with good reason, said he would rather be governed by the first two thousand names in the Boston phone book than by the Harvard faculty. Incredible as it may seem, on basic issues of social policy, we are in effect being governed by the Harvard faculty and its counterparts in other elite educational institutions through the medium of constitutional law. Government by an elite is precisely the form of tyranny by a minority that the Constitution — a radical experiment in self-government at the time — was meant to prevent. The American people face no greater challenge than finding the will and means of bringing this perversion of the constitutional system to an end.
The Dubious Origin of Constitutional Judicial Review
The most striking thing about judicial review, at first, is that it is not explicitly provided for in the Constitution, although it was unprecedented in English law — the source of our basic legal institutions and practices — and poses an obvious threat to representative self-government. If the framers — the authors and, most important, the ratifiers of the Constitution — had decided to grant the power, one would expect to see it, like the analogous presidential veto power, not only plainly stated but limited by giving conditions for its exercise and by making clear provision for Congress to have the last word. It appears that the framers mistakenly envisioned the power as involving merely the application of clear rules to disallow clear violations, something that in fact rarely occurs.
Antinationalist opponents of the Constitution (misnamed Antifederalists) foresaw that federal judges would claim the power to invalidate legislation, and pointed out the dangerous potential of this power. One, writing as "Brutus," warned that the Constitution would give judges "a power which is above the legislature, and which interest transcends any power before given to a judicial by any free government under heaven." It would make them, he presciently warned, independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.
Alexander Hamilton, perhaps the least committed to democracy of the American founders and, with James Madison, one of the two most important proponents of the Constitution, responded to this criticism not by denying that the Constitution provided for judicial review but by arguing, naively or disingenuously, that it would not give judges policymaking power. The judiciary, he said, quoting Montesquieu, "is next to nothing," lacking "influence over either the sword or the purse," able to exercise "neither FORCE nor WILL but only judgment." Judicially enforced constitutionalism would serve only "to guard the Constitution and the rights of individuals from the effects of those ill humors" to which, he believed, the people are sometimes subject. It would not make judges superior to legislators, because judges would use the power only to enforce "the intention of the people" expressed in the Constitution over the contrary intention of legislators, their "agents," invalidating only laws that were in "irreconcilable variance" with the Constitution. "[T]he supposed danger of judiciary encroachments on the legislative authority" is therefore, he reassured the ratifiers, "in reality a phantom." Not only has the judiciary no control of funds or force, but Congress's power of impeachment is in itself "a complete security" against judicial usurpation of lawmaking power.
Hamilton's defense of judicial review reads, unfortunately, like pure fantasy today. Rather than being "next to nothing," the judiciary has succeeded in making itself, as a practical matter, virtually everything on issues of domestic social policy. It has all the control of force it needs in that it has long been unthinkable — though it was not to Presidents Jefferson, Jackson, Lincoln, and Franklin Roosevelt — that its decisions will not be enforced. The judiciary's control of the purse is secure enough that its approval of a federal district judge's orders requiring a state to spend billions of dollars in a self-defeating attempt to increase school racial integration is automatically complied with. As Jefferson concluded when he failed to remove Justice Samuel Chase, impeachment is a "farce," "not even a scarecrow." The only security provided by impeachment today is the secure belief of judges that they have nothing to fear.
Laws in "irreconcilable variance" with the Constitution, it happens, are rarely, if ever, enacted. The Constitution wisely precludes very few policy choices, and even fewer that elected legislators — fully as capable as judges of reading the Constitution and at least as committed to American values — might be tempted to make. The people do not need unelected, life-tenured judges to protect them from their electorally accountable legislators; their clear and urgent need today is for protection from judges by legislators.
Hamilton theorized judicial review; Chief Justice John Marshall, his political ally and acolyte, made it a reality in Marbury v. Madison in 1803 by invalidating an insignificant provision of a federal statute in an otherwise insignificant case. Marshall begged the basic question by assuming, rather than showing, the source of the Court's authority to substitute its interpretation of the Constitution, finding an inconsistency with a federal law, for that of Congress and the president, who presumably found none. Marshall then first misinterpreted the statute to create a constitutional question that did not exist and then misinterpreted the Constitution to find a violation that also did not exist. Because the result was dismissal of the case against Madison, Jefferson's secretary of state — a case both had simply ignored — there was no occasion for Jefferson, Marshall's political enemy, to make an official response. Judicial review was born in sin and has rarely risen above the circumstances of its birth.
It's Not the Constitution, It's the Justices
Judicially enforced constitutionalism, the disallowance of policy choices favored by most people today because of contrary choices made by others in the past, is inherently undemocratic and in need of justification in a supposedly democratic society. It can be argued that constitutional limits on policy choices can advance democracy by correcting or counteracting some supposed defect in the democratic political process. A "balanced budget" amendment, for example, is arguably justifiable to prevent "special interest" legislation from bringing about a higher level of total federal spending than most people want. Term limits, such as the amendment limiting the president to two terms, might similarly be justifiable if long-term office holding is seen as giving the incumbent enough advantages to prevent fair election contests and thereby to frustrate the popular will.
The standard and much more common justification for constitutionalism, the only one given by Hamilton, is not that it facilitates but that it temporarily frustrates the will of the people, although supposedly only to further it in the end. Judicially enforced constitutional limits can serve, he argued, to protect the people from the occasional "ill humors" that may cause them to adopt policy choices they will later regret. Since constitutional limits can come only from the people themselves in a democracy, the argument rests on the extremely implausible proposition that the people of the past acted in a calmer time or were more knowledgeable about present day problems than are the people of today. Constitutional provisions, for example, the all-important Fourteenth Amendment, are rarely adopted in times of calm. In any event it would be difficult to find an example of a ruling of unconstitutionality actually serving this supposed long-term democratic purpose. None of those made by the Court in the last fifty years would seem to qualify. It is unlikely that a majority of the American people have with time come to be grateful to the Court for its decisions, say, prohibiting suppression of the pornography trade, removing state-supported prayer from public schools, or requiring the busing of children for school racial balance. "Ill humors" — that is, intellectual fads, such as admiration for the former Soviet Union — are more common among the cultural elite, including judges, than among ordinary people. The highly educated, George Orwell once noted, are capable of preposterous beliefs that could not occur to the common man.
To the extent that we believe in popular self-government, we should be skeptical of the value of constitutional restrictions on policy choices, favor their narrow interpretation, and adopt a strong presumption against the creation of new ones. Such restrictions make sense when a government is seen as the result of a contract between the people and their sovereign, but much less so, as Hamilton pointed out, when the people are themselves the sovereign. Constitutionalism, as Jefferson and other believers in democracy have noted, can amount to the rule of the living by the dead.
It is not rule by the dead, however, that is now challenging and undermining American democracy; it is judicial activism, rule by judges who are all too much alive. "Judicial activism" can most usefully be defined as rulings of unconstitutionality not clearly required by the Constitution — "clearly" because in a democracy the opinion of elected legislators should prevail over that of unelected judges in cases of doubt. Rulings upholding as constitutional the laws that the Constitution clearly prohibits are not only extremely rare (at least apart from the question of federalist limits on national power) but should, in any event, be seen as examples not of activism but of restraint, refusals by judges to overturn the policy choices made in the ordinary political process. Decisions overturning activist decisions should be seen, of course, as not activist but de-activist, as undoing activism and returning policy issues to the ordinary political process.
All or almost all the Supreme Court's rulings of unconstitutionality, beginning at least with the Warren Court, are examples of judicial activism — usurpations of legislative power — in that they were not clearly, and usually not even arguably, required by, and indeed were sometimes in violation of, the Constitution. It is not the power of judicial review as such, therefore, that accounts for the dominant policymaking role the Court has assumed in our society but the Court's abuse of the power. If the Court did in fact only what it invariably claims to do — enforce the Constitution — occasions for its invalidation of policy choices made in the ordinary political process would be rare enough to make judicial review a matter of little more than academic interest. The central question, of course, is why, in a supposedly democratic society, these judicial usurpations of legislative power to impose policy choices that legislators could not impose are permitted to continue.
Excerpted from "A Country I Do Not Recognize" by Robert H. Bork. Copyright © 2005 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Hoover Institution Press.
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