Written by Andrew C. McCarthy
Like Roger Kimball and Michael Ledeen, I was privileged to get to know Judge Robert Bork over the years. That was a thrill because he was a hero of mine long before I met him. I was struck not only by the dignity with which he endured the slanders by which the Left’s lapdogs denied him the Supreme Court seat he so richly deserved, but also by the trenchant books he wrote after the ordeal — in particular, The Tempting of America and Slouching Towards Gomorrah. These are not merely towering works of legal philosophy but essential commentaries on our culture by one of its most refined observers — and, for sheer enjoyment purposes, books as witty as they are wise.
Along with Justice Scalia and Reagan Attorney General Ed Meese, Bob was among the trailblazers of “originalism,” the theory holding that judges must construe the law, particularly the Constitution, in accordance with what it was understood to mean at the time of its adoption. But he was a legend in many areas of the law, notably antitrust and international law. The latter occasioned the first conversation I ever had with him — he sought me out, when we both happened to be at a function in Washington, with praise for an essay I’d written for Commentary. As a writer, I’ve never had a prouder moment. Remembering it still softens the blow from the time I deeply disappointed him, apres one of Roger’s conferences, by ordering a vodka martini. As the Judge — an expert on this as on so many things — was known to instruct, there is only one kind of martini — gin (as it should not be necessary to specify), straight up but with the barest trace of vermouth … and “olives are to be eschewed, except by people who think a martini is a type of salad.”
I was thrilled back in 2009 when Roger asked me to review A Time To Speak — an anthology drawn from a half-century of Bob’s copious, brilliant writings — for The New Criterion. Rereading the review today, I was again struck by the enduring wisdom of an essay the Judge wrote long before the Age of Obama. I ended the review by discussing it:
Of all the wisdom that overflows from A Time to Speak, it is a thirty-year-old essay, “The Impossibility of Finding Welfare Rights in the Constitution,” that readers may find most relevant. In the waning weeks of last year’s presidential campaign, it emerged that Barack Obama, as an Illinois state legislator, had lamented that the Warren Court “wasn’t that radical” after all. It had, to his mind, failed to take on “the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society.” Obama, whose ardor for the “living” Constitution is no secret and who opined throughout the campaign that his judicial nominees’ most important attribute would be “empathy,” faulted the high court for declining to “break free from the essential constraints” he acknowledged were “placed by the founding fathers in the Constitution.” Our fundamental law thus remained “a charter of negative liberties”—one that says only what government “can’t do to you.” For the President, economic justice cries out for the positive case: what government “must do on your behalf” (emphasis added).
“Positive liberty” is old wine in a new bottle, fermented in the mid-1970s by, among others, the Harvard scholar John Hart Ely, who eschewed Bork’s “interpretivist” approach in favor of a theory dubbed “representation-reinforcement.” Ely believed Article IV’s Privileges and Immunities Clause and the Ninth Amendment invited judges to create new rights. He theorized, Bork recounts, “that people will have better access to the political process if their basic needs are met.”
As Bork demonstrates, the concept is factually dubious and fundamentally undemocratic. Whatever was meant by “privileges and immunities” and other undefined rights—and the Framers themselves were indeterminate on the matter—there is “not a scintilla of evidence” that by conceding the existence of unspecified rights, those who wrote and ratified our Constitution were directing that theretofore unknown rights be created, much less created by the courts. The Constitution contains no hint of such a novel idea, and—as Obama implicitly admitted in his 2001 remarks—even the most activist of Supreme Courts never claimed such license.
More to the point, the Constitution is, as Obama put it, a “charter of negative liberties” because the framers feared government’s propensities toward injustice and excess. Its power to act against us was thus sharply limited in various specified ways. In terms of giving, however, government has at its disposal only what we provide it. It cannot give to some without taking from others.
Representation-reinforcement is factually suspect in any event: It is anything but clear “that people at the lower end of the economic spectrum need assistance to be represented adequately”—or that the provision of welfare is apt to make them better citizens as opposed to reducing them “to a condition of dependency so that they are not the active and independent political agents that they ought to be.” But new rights create new obligations: winners and losers. Consequently, representation-reinforcement is an internally contradictory concept, one Bork says “tends to devour itself” because “it calls upon the judiciary to deny representation to those who have voted a particular way to enhance the representation of others.” What is “reinforced,” he warns, “is less democratic representation than judicial power and the trend toward redistribution of goods.”
Of course, the power to remake American society ever more radically has become ever more appealing to judges in the decades since Judge Bork was denied his rightful place on the watch. Our magistrates are “Olympians on the March,” to borrow from his memorable 2004 essay in The New Criterion. Drawing on the political philosopher Kenneth Minogue, Bork explains, “Olympianism is the project of an intellectual elite that believes it enjoys superior enlightenment and that its business is to spread this benefit to those living in the lower slopes of human achievement.”
The Supreme Court has sadly become its “heavy artillery and panzer divisions in the culture war,” reducing constitutional law from an intellectual discipline to “a series of political impulses.”
A Time to Speak reminds us, yet again, that Robert Bork has been this nation’s most eloquent and compelling Cassandra. Whether America rediscovers and retains what has made it great depends on whether we finally listen, and look within.
We’ve lost a giant, but thankfully he left us a trove.
Andrew C. McCarthy is the author of the New York Times bestsellersThe Grand Jihad and Willful Blindness. He is a contributing editor at National Review and co-chairs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies. He also writes the Ordered Liberty blog at PJMedia.com.