Summer, 1990
*1045 SEX, LIES AND JURISPRUDENCE: ROBERT BORK, GRISWOLD AND THE PHILOSOPHY
OF ORIGINAL UNDERSTANDING
Copyright 1990 by the Georgia Law Review Association, Inc.; Glenn Harlan
Reynolds
As we slide into the 1990s, it seems that the 1960s will never be behind us. Nowadays, in fact, there seems to be a modest boom in the production of books criticizing those positions that seemed to be dominant, whether culturally or legally, in the 1960s. For the writer of law books, however, attacking sixties ideals poses special difficulties. Of the three dominant legal themes of the 1960s one-the civil rights movement-is now politically unassailable, at least frontally, by anyone who wants to be taken seriously in the mass culture, and another-the effort to legalize and legitimize drug use-has fallen so far that it is hardly worth kicking even when down. That leaves only the sexual revolution (and its accompanying relaxation of legal restrictions on sexual conduct, accomplished largely through judicial decisions) as a fit target for assault from the right.
This assault, as the title (perhaps inadvertently) suggests, makes up one of the main themes of Robert Bork's recent bestselling book, The Tempting of America: The Political Seduction of the Law. [FN1] Specifically, Bork's chief topic consists of a theory of constitutional *1046 interpretation favored by Bork, among others, based on the "original understanding"' of the Constitution, and of repeated attacks on the leading cases of the Warren Court. Foremost among these cases, in Bork's mind, is Griswold v. Connecticut, [FN2] the Connecticut birth control case repeatedly identified by Bork as the worst extant example of unprincipled and antidemocratic judicial decisionmaking and the source of many later decisions that he finds similarly improper.
My purpose in this Paper is not to review Bork's book, but to examine the degree to which Bork's "original understanding"' jurisprudence, as outlined in its latest and best form, supports his critique of the Griswold case, and, more significantly, to determine in that context whether Bork's jurisprudence is adequate to the task he sets it, that of circumscribing the role of the judiciary by constraining results so that judges cannot interfere with decisions arrived at through democratic means. [FN3] Perhaps surprisingly, I conclude that Bork's jurisprudence, as applied to Justice Douglas' opinion in the Griswold case, would neither guarantee a different outcome nor (and this is not quite the same thing) provide any more protection for majoritarian decisionmaking than the various *1047 rationales actually set forth in that case. This conclusion, it seems to me, calls into question not only Bork's formulation, but all theories of constitutional interpretation that rely on the understanding of the Framers as a means of limiting present-day judicial discretion, a point which I discuss at some length at the end of this Paper.
Using the experimental method to test a legal theory may be a bit novel as an approach, but it seems to me to be a valid way of evaluating a theory, like Bork's, that claims predictive ability as its raison d'etre. Potential buyers of theories should remember what car buyers already know, that the glossy brochures and schematic diagrams merely promise performance; the only way to find out if the claims are true is to go for a test drive. And the Griswold case, given the degree to which Bork criticizes it, its considerable general prominence, and its role as underpinning to other controversial matters such as the Supreme Court's abortion jurisprudence, is a good test subject.
Perhaps as a result of this different approach, my point here turns out to be rather different from those of other scholars who have criticized "original understanding"' theories. Richard Kay has divided these criticisms into three general categories: "1) Adherence to original intent is impossible; 2) It is self-contradictory; and 3) It is wrong."' [FN4] My test of Bork's theory in the context of the Griswold opinion leads me to propose a fourth criticism: It doesn't work. That is, even if the theory can be applied in a rigorous fashion, it does not control results in any significant way.
In a sense, pointing this out is pointing out the obvious-if original intent scholarship did work as advertised, it would probably be used more widely by judges who, after all, care a great deal about getting the job done right and who have been willing to accept all sorts of proffered tools (law and economics, for example) that at least appear to offer help. So in a sense the market has already spoken. But pointing out the obvious may nonetheless be useful, as Bork and others have generated sufficient smoke lately to convince the credulous that there may be an honest-to-goodness fire (rather than just a smudge-pot or two) lurking somewhere in the gloom. [FN5]
*1048 In addressing Bork's views, I do not intend to single him out personally, except to the extent that-as both one of the best-known and one of the most articulate advocates of what might be called the post-Reagan right- wing jurisprudence-his views make him a convenient representative of a whole group of thinkers of a similar ilk. [FN6] It is for this reason (and because this is not a review, of which there will no doubt be many) that I do not really address the other theme of Bork's book, which has to do with the battle (which he correctly characterizes as political) over his nomination to the Supreme Court. Although I make no effort to address the merits of the charges made there against Bork, charges which he characterizes as lies, [FN7] I do address the question of how Bork's characterization of the way his confirmation was handled fits in with his general theory of constitutional interpretation. Once again, I conclude that Bork's theory not only fails to produce the outcome that Bork says it requires, but in fact points the other way. From this I draw some lessons, both disturbing and encouraging, concerning the climate and prospects of contemporary constitutional *1049 scholarship.
I. ORIGINAL UNDERSTANDING AND JUDICIAL SIN
In Bork's version of jurisprudential paradise, courts interpreting the Constitution would be guided solely by what he calls the "original understanding."' To his mind, this means "that a judge is to apply the Constitution according to the principles intended by those who ratified the document."' [FN8] Such a rule of interpretation is demanded by the fact that the Constitution is law, which Bork defines as "a rule that we have no right to change except through prescribed procedures."' [FN9] Thus, when Courts apply any other theory of constitutional adjudication, their interpretation has the effect of changing the law without going through prescribed procedures, and therefore fails to meet the standard of democratic legitimacy. [FN10] If we want to amend statutes, we must repeal or amend them legislatively; if we wish to amend the Constitution, we must follow the procedures set forth in article V. [FN11] The key element of Bork's approach is, thus, that the freedom of courts to choose among interpretations of constitutional provisions must be constrained by rules that limit their choices to a narrow range already spelled out by the Constitution itself.
This approach is necessary, says Bork, to address the problems growing out of what he calls the "Madisonian dilemma."' [FN12] By this, he means that our system was set up along two different, and seemingly incompatible, theories. On the one hand, our system is based on self-rule, which Bork characterizes as meaning that "in wide areas of life majorities are entitled to rule, if they wish, simply *1050 because they are majorities."' [FN13] On the other hand, other areas are set apart from majority rule by the Bill of Rights which Bork says is "the only solution that directly addresses the specific liberties minorities are to have."' [FN14] Because of the institution of judicial review, in which the courts (and most notably the Supreme Court) review the acts of legislative majorities for consistency with the federal Constitution, courts are often in the position of striking down acts by the majority in order to protect the rights of the minority. This is the source of Bork's Madisonian dilemma; [FN15] it is what Alexander Bickel called the "counter-majoritarian difficulty"' with judicial review. [FN16]
It is a dilemma (or a difficulty), Bork says, because our system is conceived as fundamentally democratic, so that inroads by minorities on democratic governance must be carefully limited. [FN17] If there is no way to assess the work of the courts as they decide between the will of majorities and the rights of minorities in a particular instance, then the result is judicial tyranny. Thus, there must be a theory that allows us to determine the limits of judicial authority, and to assess the work of the judges according to some principle that allows us to say whether their decisions are correct, or at least within "'a limited range of outcomes that can be called correct."' [FN18]
This is the nub of Bork's judge-constraining requirement. In order to be legitimate, courts' actions must be constrained by a theory, one that is capable of predicting results. Where their actions cannot be assessed on the basis of this theory, courts lack legitimacy and should not act at all. Not surprisingly (it is why he wrote the book, after all), Bork says he has just the theory, the theory of "original understanding."' He also says that no other theory is capable of doing the job. [FN19]
*1051 A. Bork's Conception
Bork is not primarily a textualist. [FN20] By "original understanding"' he most emphatically does not mean "the strict language of the text."' [FN21] Nor does he mean the actual subjective intention of the Framers. As Bork says,
If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest.... Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time. [FN22]
The obvious question, of course, is how such an understanding is to be determined. After all, it is not entirely clear (either in general, or in Bork's treatment) whether the "understanding"' with which we are concerned is that of the Framers, that of the state ratifying conventions or that of the public at large. Nor is it entirely clear (again, in either case) which sources a judge may consult-Bork says both that "[t]he original understanding is ... manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like,"' [FN23] and that "the judge *1052 is to interpret what is in the text and not something else."' [FN24] If all that Bork means by this is that in the course of interpreting the Constitution judges may look at other sources for assistance, but that in doing so they must bear in mind that the text they are interpreting is the Constitution's, then he has not said much. If, on the other hand, he intends to give the text primacy and to limit the freedom of judges to pick and choose whatever interpretation suits their fancy, he would serve his cause better by providing some rule for determining to what sources it is appropriate to turn for assistance. Does "the like"' include the Bible? The Federalist Papers? The Talmud? The Magna Carta and the Articles of Confederation? The various state constitutions and the royal charters that preceded them? American (English?) common law at the time of the framing? Bork provides no real guidance here, although he does allow that opinions of early Congresses and of authoritative commentators like Justice Joseph Story are entitled to special weight. [FN25]
Perhaps I am making too much of this problem, though I doubt it. [FN26] Bork, however, seems to feel that judges are laid under sufficient *1053 constraint if they are required to interpret the Constitution in the same fashion as other law. Thus, he minimizes the kinds of problems to which I have just alluded:
The search for the intent of the lawmaker is the everyday procedure of lawyers and judges when they must apply a statute, a contract, a will, or the opinion of a court. To be sure, there are differences in the way we deal with different legal materials, which was the point of John Marshall's observation in McCulloch v. Maryland that "we must never forget, that it is a constitution we areexpounding."' By that he meant that narrow, legalistic reasoning was not to be applied to the document's broad provisions, a document that could not, by its nature and uses, "partake of the prolixity of a legal code."' But he also wrote there that it was intended that a provision receive a "fair and just interpretation,"' which means that the judge is to interpret what is in the text and not something else. And, it will be recalled, in Marbury v. Madison Marshall placed the judge's power to invalidate a legislative act upon the fact that the judge was applying the words of a written document. Thus, questions of breadth of approach or of room for play in the joints aside, lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words. [FN27]
This means, if I read it correctly, that when a question of constitutional interpretation appears the courts are to employ the usual battery of interpretive tools (parol evidence, for example) used in reading other legal documents, like contracts and wills, in order to *1054 arrive at what their drafters meant-though it may be permissible to adopt interpretations that are somewhat broader (that is, further from the text or the original meanings) in light of the fact that it is a constitution that we are interpreting.
Any other approach, Bork says, is unprincipled and ultimately illegitimate because it rejects and undermines both the concept of law as binding and the ideal of democratic decisionmaking. Even such an apparently conservative and non-activist approach as reliance on history and tradition is illegitimate, according to Bork, since questions of history and tradition are excessively manipulable in the hands of judges and hence cannot constrain reasoning and outcomes within a narrow, "correct"' range. [FN28] Nonetheless, approaches other than Bork's are popular, a situation that Bork lays at the door of (liberal) academic elitism:
At first glance, it seems distinctly peculiar that there should be a great many academic theorists who explicitly defend departures from the understanding of those who ratified the Constitution .... A moment's reflection suggests, however, that Supreme Court departures from the original meaning of the Constitution are advocated precisely because those departures are not correctable democratically. The point of the academic exercise is to be free of democracy in order to impose the values of an elite upon the rest of us. [FN29]
This is a crucial part of Bork's position. It is not enough, he says, that a judge employ "neutral principles"' of the sort advocated by Herbert Wechsler. [FN30] Rather, the principles employed must also be *1055 neutrally derived and neutrally defined, else they undermine the idea of democratic decisionmaking:
If the Court is free to choose any principle that it will subsequently apply neutrally, it is free to legislate just as a political body would. Its purported resolution of the Madisonian dilemma is spurious, because there is no way of saying that the correct spheres of freedom have been assigned to the majority and the minority. Similarly, if the Court is free to define the scope of the principle as it sees fit, it may, by manipulating the principle's breadth, make things come out the way it wishes on grounds that are not contained in the principle it purports to apply. [FN31]
Neutral derivation of principles, in Bork's view, means that the principles must come from the Framers: "When a judge finds his principle in the Constitution as originally understood, the problem of the neutral derivation of principle is solved. The judge accepts the ratifiers' definition of the appropriate ranges of majority and minority freedom."' [FN32] Bork's theory quite clearly allows the creation of new constitutional principles and rules; he is not so unsophisticated as to require each question to be submitted to a phantom jury of Framers, an approach that would render the Air Force unconstitutional, since the Constitution provides only for land and naval forces, and since the Framers certainly never contemplated an air force. By requiring that principles be derived from the Constitution and in accordance with original understanding, though, Bork's formula purports to prevent judicial action from invading the sphere reserved to majority political action. That sphere, according to Bork, is quite broad, and majorities' action need not even be directed toward promoting the general good or public welfare: "'The only thing majorities may not do is invade the liberties the Constitution specifies."' [FN33]
But even if principles are derived from the Constitution as originallyunderstood, they must be stated and applied by courts. As Paul Brest has noted, this involves courts choosing the level of abstraction *1056 at which the stating and application are done, often with significant results in terms of the outcome of cases. [FN34] To choose an easy example, does "freedom of speech or of the press"' mean that the government may nonetheless regulate non- print media (or even photocopy machines) without first amendment regulation? Or do those terms really mean "freedom of expression,"' encompassing a wide range of activities from broadcasting to the wearing of particular items of clothing? Obviously, if courts are free to choose among alternatives as far apart as these, the notion of restraining them from interference with majoritarian decisionmaking is a hollow one, no matter how the principles are derived.
Unsurprisingly, however, Bork asserts that the "original understanding"' approach solves this problem, too. First, he notes that many parts of the Constitution do not pose problems of generality, as the level at which they are intended to apply is obvious. [FN35] (Although Bork gives no examples, this is probably true enough). [FN36] Where the problem does come up in its toughest form, he says, is with regard to rights. [FN37]
Bork doesn't say in so many words just why rights raise the toughest questions, but he does provide an example of the kind of problem he means. Thus, after noting that "[t]he equal protection clause was adopted in order to protect the freed slaves, but its language, being general, applies to all persons,"' [FN38] Bork goes on to explain why, in his understanding, the equal protection clause should not be read as a general grant of freedom from discrimination. For example, he says, if one assumes for the purpose of argument that the equal protection clause was intended only to guarantee that blacks should be treated no worse than whites, then it will not support cases such as Bakke [FN39] in which it is whites who are complaining *1057 of discrimination: "Democratic choice must be accepted by the judge where the Constitution is silent."' [FN40] If, on the other hand, one assumes that the purpose was the broader one of promoting racial equality, then the clause would protect members of all races. [FN41]
But even under this broader, "racial equality"' reading, where matters such as gender or sexual orientation are involved, Bork says that since the ratifiers of the fourteenth amendment did not envision those issues a court cannot read the language "equal protection of the laws"' to encompass them. [FN42] Such classifications would still, because of the general language of the clause, be reviewable for reasonableness. [FN43] Some gender classifications would thus be reasonable, while others would not, but all distinctions based on sexual orientation would be outside of the clause's protection. This is because "' s ociety's treatment of sexual orientation is based upon moral perceptions, so that it would be difficult to say that the various moral balances struck are unreasonable."' [FN44]
*1058 Finally, any principle derived and defined in accordance with original understanding must also be applied in the same fashion. The judge must not allow sympathy for a particular party or cause to impel the application of a principle to circumstances for which it is not suited. [FN45] Rather than explain this principle in detail, Bork supplies an example of what he regards as improper application. The case he invokes is Shelley v. Kraemer. [FN46] That case involved racially restrictive covenants in Delaware. Those covenants provided that the property in question could be occupied only by white persons. When white owners sold their property in violation of the covenants, other property owners sued to enforce the covenants, and the state courts, applying common law property rules, granted injunctions against the black owners' taking possession. [FN47]
If such a prohibition were established by statute, along South African lines, Shelley would have been an open-and-shut case. The problem was that the fourteenth amendment speaks only to state action, and the only state involvement was judicial enforcement of the covenants. The Supreme Court found, however, that the state courts' involvement was state action sufficient to satisfy the fourteenth amendment's requirement. [FN48] According to Bork, this rule cannot be applied in a neutral fashion:
Suppose that a guest in a house becomes abusive about *1059 political matters and is ejected by his host. The guest sues the host and the state courts hold that the property owner has a right to remove people from his home. The guest then appeals to the Supreme Court, pointing out that the state, through its courts, has upheld an abridgment of his right of free speech guaranteed by the first amendment and made applicable to the states by the fourteenth. The guest cites Shelley to show that this is state action and therefore the case is constitutional. There is no way of escaping that conclusion except by importing into the rule of Shelley qualifications and limits that themselves have no foundation in the Constitution or the case. [FN49]
The result, he says, is that since all private conduct is at least potentially subject to a lawsuit, and since any disposition of that suit is "state action"' under Shelley, the principle cannot be neutrally applied, for all issues would become constitutional issues. [FN50] Thus the principle would not be, and has not been, applied neutrally, making Shelley an egregious example of judicial usurpation. [FN51]
To summarize, then, Bork's conception depends on (1) construing the Constitution as we would other legal documents, according to the intent of the parties, though with some "play in the joints"' [FN52] perhaps being more appropriate in the course of constitutional interpretation than, say, in the interpretation of wills or contracts; and (2) formulating and defining the principles developed through this interpretive process in a manner that remains linked to the understood purpose of the Constitution and applying those principles in a neutral manner that is (again) consistent with that understood purpose.
B. The Sins of Our Fathers
Thus summarized, Bork's position sounds surprisingly uncontroversial to be coming from a man whose views have been the subject of so much controversy. Nonetheless, Bork says, the philosophy of "original understanding"' has been honored largely in the *1060 breach since the very beginnings of our republic. As he says, "The Constitution was barely in place when one Justice of the Supreme Court cast covetous glances at the apple that would eventually cause the fall."' [FN53] The Justice in question, of course, was Justice Chase in his famous colloquy with Justice Iredell in the case of Calder v. Bull. [FN54] Justice Chase expressed, in dicta, the view that an act of the legislature might beunconstitutional even though it violated no express provision of the Constitution. [FN55] Bork is unstinting in his contempt for Chase's view, which he says is "supported less by legal reasoning than by frequent recourse to the typographic arts,"' [FN56] and which he reproduces in heavily edited form at the beginning of his first chapter. The passage, as excerpted by Bork, follows:
I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by theConstitution, or fundamental law, of the State.... The purposes for which men enter into society will determine the nature and terms of the social compact.... An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority....
*1061 The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.... To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments. [FN57]
By contrast, Bork's approval of Justice Iredell's reply to Chase is strong. As Bork tells it, Iredell replied that the judiciary had power to negate actions by the legislature within the general scope of its constitutional authority only where such power was granted by the Constitution, and, characterizing Chase's approach as invoking natural law, noted that "[t]he ideas of natural justice are regulated by no fixed standard; the ablest and the purest of men have differed upon the subject .... " [FN58]-a passage which Bork himself italicizes by way of emphasizing his agreement with Iredell's sentiments. According to Bork, this colloquy represents the first surfacing of "judicial authoritarianism"' and the ready response of brave defenders of the democratic order. [FN59]
Bork then devotes the next fourscore pages or so to a discussion of how things have gone downhill since this first clash. [FN60] In so doing, he discusses many cases. It rapidly becomes clear, however, that for unprincipled and antidemocratic judicial decisionmaking, there is no case that in Bork's mind equals Griswold v. Connecticut, unless it is to be found among Griswold's offspring, Eisenstadt v. Baird [FN61] and Roe v. Wade. [FN62]
*1062 C. Griswold and Its Progeny
It is almost impossible to describe adequately Bork's unhappiness with the Griswold decision. The case is described as developing a "loose canon in the law"' [FN63] (the right of privacy), as an "intellectual catastrophe,"' [FN64] as "spurious,"' [FN65] as a case whose reasoning "was not meant to be taken seriously"' [FN66] and as the "construction of a constitutional time bomb,"' [FN67] phrases that suggest, but do not fully capture, the depth of Bork's sentiments on the subject. Plainly, Bork believes that this case, andits descendants, violate the very essence of what he is urging in the way of appropriate decision making in constitutional law.
Bork's unhappiness, or outrage, with Griswold stems, he says, not so much from the outcome (though he does describe it and its progeny as symptoms of "'the rampant individualism of the modern era,"' which asserts that "all individuals are entitled, as a matter of constitutional right, to engage in any form of sexual activity"') [FN68] as from the fact that the opinion finds a right, the right of privacy, that is not in the Constitution. [FN69] Now, it is certainly true that the opinion in Griswold bears the unmistakable mark of Justice Douglas' enthusiasm, and that the Court's reasoning might have been stated more clearly. Bork's criticisms go beyond this sort of complaint, though, to involve the assertion that Douglas' action was lawless and unprincipled, as it flew in the face of any conceivable "original understanding"' reading of the Constitution.
Griswold, as most readers will remember, involved a challenge to a Connecticut statute forbidding the distribution of contraceptives. In terms that would do Bork proud, Justice Douglas disclaimed any intent on the part of the Court to "sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic *1063 problems, business affairs, or social conditions."' [FN70] Here, however, he said that the statute in question operated on "an intimate relation of husband and wife,"' necessitating further inquiry. [FN71]
Douglas next looked to the text of the Bill of Rights, saying that:
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice-whether public or private or parochial-is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.
By Pierce v. Society of Sisters the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff)-indeed the freedom of the entire university community. Without those peripheral rights, the specific rights would be less secure. [FN72]
Having found that the Court in the past had found specific rights that depended for their existence on more general statements in the Bill of Rights, Douglas went on, then, to review specific provisions in the Bill of Rights that seemed to protect people in situations similar to married couples in Connecticut (that is, individuals, in their homes, not menacing others). He noted that the first *1064 amendment protects the right of association; the third amendment protects citizens from having soldiers quartered (without consent) in their homes in time of peace; the fourth amendment explicitly affirms the right of persons to be secure in their persons, homes, papers and effects from unreasonable searches and seizures; and the fifth amendment, through its self- incrimination clause "enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment."' [FN73] Douglas additionally noted the ninth amendment's explicit provision that " t he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."' [FN74]
Drawing on all of this, Douglas concluded that the various provisions described above permitted an inference that there existed a right of privacy sufficient to overturn the Connecticut statute. [FN75] Douglas described this right as being formed by the overlap of "penumbras"' from the other enumerated rights and supported by "emanations"' from them. He also asked rhetorically, "'Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?" and noted that " w e deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system."' [FN76]
As mentioned, Bork is hardly impressed with Justice Douglas' handiwork, and certainly one could imagine the opinion displaying a greater degree of craft than Justice Douglas actually employed, perhaps omitting the use of unlawyerly sounding terms like "penumbras"' and "emanations."' [FN77] Bork's hostility is not, however, *1065 aimed primarily at matters of style and craft. Rather, he views the opinion as an unprincipled tour de force that makes a mockery of original intent and the notion of judicial accountability to meaningful standards of interpretation, especially those based on original understanding:
Douglas raised the stakes to the sky here by treating Connecticut as though it was threatening the institution of marriage. "'We deal with a right of privacy older than the Bill of Rights-older than our political parties, older than our school system."' The thought was incoherent. What the right of privacy's age in comparison with that of our political parties and school system had to do with anything was unclear, and where the "right"' came from if not from the Bill of Rights it is impossible to understand. [FN78]
Bork goes on to note, "That makes it all the more perplexing that Douglas in fact purported to derive the right of privacy not from *1066 some pre- existing right or law of nature, but from the Bill of Rights."' [FN79]
Bork's criticism of Douglas' analysis of the various Bill of Rights provisions leading to his decision is similarly harsh:
None of the amendments cited, and none of their buffer or penumbral zones, covered the case before the Court. The Connecticut statute was not invalid under any provision of the Bill of Rights, no matter how extended. Since the statute in question did not threaten any guaranteed freedom, it did not fall within any "emanation."' ... Justice Douglas bypassed that seemingly insuperable difficulty by simply asserting that the various separate "zones of privacy"' created by each separate provision of the Bill of Rights somehow created a general but wholly undefined "right of privacy"' that is independent of and lies outside any right or "zone of privacy"' to be found in the Constitution. Douglas did not explain how it was that the Framers created five or six specific rights that could, with considerable stretching, be called "privacy,"' and, though the Framers chose not to create more, the Court could nevertheless invent a general right of privacy that the Framers had, inexplicably, left out. It really does not matter to the decision what the Bill of Rights covers or does not cover. [FN80]
Obviously, Bork believes that Justice Douglas' decision in Griswold is incorrect, a judicial invention not justified by the text of the Bill of Rights. Yet he sees the decision as more than simply a matter of judicial error.
Bork regards the decision as not only wrong, but as a destructive encroachment by the judiciary into areas properly reserved to majority rule. That is, as noted above, where the Bill of Rights does not provide otherwise, Bork believes decisions should be left to the majority to decide through democratic means. And, so long as the Bill of Rights does not explicitly intervene, majority decisionmaking may be based on whatever criteria the majority may choose, whether connected with some general public good or not- moral *1067 disapproval of sexual activity not aimed at procreation, for example. Bork says that because "[t]he stark fact is that the Constitution has nothing whatever to do with issues of sexual morality,"' such matters "are left entirely to the morality of the people of the various states."' [FN81]
Since, in the sphere outside the specific provisions of the Bill of Rights and hence (in Bork's view) reserved to the majority, all interests are equal in the eyes of the Constitution (which is to say that constitutional analysis is equally irrelevant to all), there can be no judicial choosing among different kinds of interests. Thus, Bork says, society's moral disapproval of certain acts is enough to justify limitations on sexual activity, even if there is no other impact on society beyond the offending of those morals:
Suppose that the lawyer for Connecticut in Griswold argued that a majority, or even an intense and politically influential minority, regarded it as morally abhorrent that couples capable of procreation should copulate without the intention, or at least the possibility, of conception. Could the Court demonstrate that this moral view is wrong or that moral abhorrence is not an important and legitimate ground for legislation? [FN82]
The answer for Bork is no, even where the majority's interests are characterized as selfish ones not related to some broader concept of the general good:
The law prohibiting the use of contraceptives impairs their sexual gratifications. The state can assert, and at one stage in the litigation did assert, that the majority of Connecticut's citizens believes that the use of contraceptives is profoundly immoral. Knowledge that it is taking *1068 place and that the state makes no attempt to inhibit it causes those in the majority moral anguish and so impairs their gratifications. [FN83]
Furthermore, since, as Bork has said, there is no ground for regarding the married couple's sexual gratifications as more important than the majority's moralistic ones, a court may not interfere:
In Griswold, there is no way for a judge to say that the majority is not entitled to its moral view.... Knowledge that immorality is taking place can cause moral pain. The judge has no way to choose between the married couple's gratifications (or moral positions) and the majority's. He must, therefore, enforce the law. [FN84]
Now this is pretty strong stuff, even if Bork has made some of these points before. [FN85] It is also, as I will demonstrate, pretty wrong stuff, for the Constitution does in fact provide guidance in just the sort of cases that Bork posits here. Although I am not at all sure that I would characterize Griswold as simply a conflict between the sexual gratifications of couples and the "'moral anguish"' experienced by those who know, somehow, that people are enjoying sex without the likelihood of children, [FN86] I will accept this characterization *1069 for the purposes of argument in order to test Bork's theory on its own ground. I will also demonstrate that in cases so characterized, a court employing the very interpretive approach that Bork advocates could find, should find and probably would find, [FN87] that the Framers, the ratifiers and just about anyone else whose original understanding of the Constitution has any relevance intended to prevent the sort of "moral taking not for public use"' (if I may use such an awkward phrase) that Bork seems to find appropriate.
II. ATTACK OF THE UTILITY VAMPIRES
Bork's idea that it is difficult, if not impossible, to distinguish in any meaningful fashion among the various sources of satisfaction that different people in society may enjoy is not original with him, of course. It is, in fact, a staple of utilitarian theory. Where Bork goes farther than most, if not all, is in explicitly giving equal position to those whose satisfactions come from denying others their satisfactions. Where most utilitarian theorists have worried about the problem of "utility monsters"'-those so constituted as to get so much greater satisfaction ("utility"') than others from consuming a particular resource that under conventional utilitarian calculus they always come out ahead [FN88]-Bork seems to be advocating equal treatment for a certain subspecies of utility monster-whom we might call a "utility vampire"'- who gets satisfaction not from robbing others of something for his/her own use, but simply from denying others the opportunity to pursue satisfaction themselves.
Of course, Bork would require that these creatures of the moral night exist in a political majority-or at least "an intense and politically *1070 influential minority"' [FN89]-before they could work their evil spell. But once they did so, the Constitution would have nothing to say about it and those couples denied their "sexual gratifications"' would have only the alternative of relieving their frustrations in the privacy of the voting booth. Readers of this Article-and of the Constitution-might find it hard to believe that the Framers intended anything like this. If so, they would be right.
III. TAKINGS, RIGHTS AND ORIGINAL INTENT
The truth is, of course, that the Framers, whoever they may have been, were not the enthusiasts of majoritarian decisionmaking that Bork seems to be. Nor is a reading of the Constitution to the effect that only the specific provisions of the Bill of Rights restrain majoritarian decisionmaking a correct reading-whether as an exercise in textualism, in original intent or simply in competent lawyering. To the contrary, any reading of the Constitution that is faithful to the "original understanding"' and to the text will make it abundantly clear that the Framers did not contemplate empowering legislative majorities to work their will on minorities solely for their own benefit and, indeed, saw their enterprise as preventing just such an outcome even where specific Bill of Rights provisions were inapplicable. [FN90]
A. The Constitution and Majorities
The Framers, of course, were coming out of a period in which state legislatures reigned largely supreme and the will of the political *1071 majority ruled largely unchecked. The result of this period, for the most part, was disaster; hence the need for the Constitution. As a result, the Constitution contained a number of features, even before the adoption of the Bill of Rights, designed to ensure that majority action was far from free- wheeling. An examination of these features will tell us a good deal about the Framers' view of the "appropriate ranges of majority and minority freedom,"' to use Bork's phrase. [FN91]
Some of these checks were structural-the division of Congress into two houses of different composition, for example. [FN92] Already Bork's statement that the Constitution leaves matters outside the Bill of Rights' specific prohibitions to "the majority"' becomes suspect. For a bill to become law, it must pass both the House of Representatives, a majority of whose members, being apportioned according to population, does reflect a majority of the people, and the Senate, a majority of whose members reflects a majority of the states and quite conceivably (both now and then) a distinct minority of the populace- particularly as, in the original scheme, senators were not even elected by the populace of their states. [FN93] The Constitution also provides that bills passed by the Congress shall not become law if disapproved by the President (who is also not popularly elected, properly speaking) [FN94] unless both bills shall be approved again, after their return, by at least two-thirds of each house. [FN95] Furthermore, Congress is further limited-beyond the *1072 constraints above-to the exercise of only enumerated powers. [FN96]
Of course, as regards the Constitution itself (rather than its structural features), "majority rule"' is hardly the rule either. Amending the Constitution, as provided for in article V, requires a substantial super- majority. Amendments may be proposed either by a two-thirds vote in each House of Congress (itself, as noted above, not exactly a majoritarian institution) or by a convention called by two-thirds of the states; in either case such amendments require ratification by three-fourths of the states (acting either through conventions or state legislatures, as Congress specifies). [FN97] But this is not all, for the Constitution specifically puts two items beyond the reach of any amendment at all. One is the importation of slaves (the Framers' careful circumlocution of this word in article V is a mini-lesson all its own in artful drafting) prior to the year 1808, a matter now of historical interest only (though understandably intense to many). [FN98] The other item set beyond any change by amendment is precisely the anti-majoritarian element of Congress that I mentioned above-to wit, article V provides "that no State, without its Consent, shall be deprived of its equal suffrage in the Senate."' [FN99]
Think for a moment what this provision means in practice. If every person in 49 states, and a bare fifty-percent-minus-one minority in the remaining state, thinks that representation in the Senate should be apportioned according to population in the same manner as it is in the House, it cannot happen, at least as to that remaining state. (And, since the state withholding its consent is likely to be a small one that would lose out under a proportional *1073 regime-say, Delaware-its refusal to go along is likely to kill the whole deal). This means that according to the Framers' conception here, the will of virtually every American can be thwarted for the lack of a single vote in a single house of the Delaware State Legislature.
Now, these provisions seem to me to make a "majoritarian"' theory of political and judicial legitimacy under the Constitution already a bit suspect, and even if the constitutional characteristics above are not enough to demonstrate a positive suspicion of majoritarian politics, they certainly do not suggest any particular enthusiasm, along the lines of Professor Bork's, for majoritarianism either. For the purposes of argument, however, I will assume that what Professor Bork really means by his rather loose references to "the majority"' is "a legislative majority"' or "a majority as required by the Constitution, with such exceptions as it makes here and there,"' not a majority of the people, or even a majority of those entitled to vote.
If the structure of the Constitution does not reveal much enthusiasm for majoritarian decisionmaking, specific provisions go farther and seem to suggest at the very least that there are times and subjects-other than those specifically found in the Bill of Rights-for which majoritarian decisionmaking is not thought appropriate. For example, article I, section 9 provides that "'[n]o Bill of Attainder or ex post facto Law shall be passed"' by Congress. [FN100] This presumably reflects a judgment that in matters bearing directly upon an individual's liberty and security the will of the majority is not to be trusted, but that, instead, the judicial branch, with its political insulation and greater impartiality, should decide such matters. [FN101] Similarly, article I, section 10 prohibits the states *1074 from passing such laws as well, and additionally prohibits the states from passing laws impairing the obligation of contracts. [FN102]
The purpose of the contracts clause's prohibition on the states seems to have been to prevent local majorities from oppressing minorities in order to produce benefits essentially private in nature. Bork's favorite expositor, Justice Story, [FN103] explains that the purpose was to ensure that states could not interfere with an obligation that (surprisingly, given Bork's endorsement of Story as a practitioner of original understanding and eschewer of fuzzy-headed noninterpretivism), [FN104] Story explicitly roots in natural law, saying that "' n or is this obligatory force so much the result ... of the municipal law, as of the general principles of natural, or, (as it is sometimes called) universal law."' [FN105] Story then stops to chastise those who have attempted to limit artificially the contracts clause by maintaining (for example) that it does not encompass charters granted by the states:
The great object of the framers of the constitution [in drafting the Contracts Clause] undoubtedly was, to secure the inviolability of contracts. This principle was to be protected, in whatever form it might be assailed. No enumeration was attempted to be made of the modes, by which contracts might be impaired. It would have been unwise to have made such an enumeration, since it might have been defective; and the intention was to prohibit every mode or device for such purpose. The prohibition was universal. [FN106]
Contrary to Bork, Story appears to be saying at the very least that constitutional protections against majority oppression should be *1075 read broadly.
Reading Story further shows Bork's basic theory of majority/minority relations to be in serious trouble, for Story goes on to question whether other similar actions by the legislature might be prohibited notwithstanding the lack of specific prohibitions in the Constitution:
Whether, indeed, independently of the constitution of the United States, the nature of republican and free governments does not necessarily impose some restraints upon the legislative power, has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the trancendental [sic] sovereignty to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property should be held sacred. At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power. The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect. [FN107]
What Story seems to be saying here, if I read him correctly, is that Bork has things exactly backward. Where Bork says that we must read the Constitution as implicitly granting power everywhere that the Bill of Rights does not restrict it (a position that Bork defends as a necessary inference from the structure of government established *1076 by the Constitution [FN108]), Story conceives it otherwise. To him and presumably to the Framers (to whose intentions he is a reliable guide according to Bork), at least where "the rights of personal liberty, and private property"' are concerned, the legislature is not empowered simply to take from one party and give to the other, no matter who has the votes. And Story founds this not on some fuzzy conception of non-interpretivism, but in a simple (and easy to apply) rule of construction, to the effect that the people should not be presumed to have given up rights-especially important ones involving liberty and property- without an explicit declaration to that effect, general grants of legislative power notwithstanding. [FN109]
Thus, even where the Constitution is silent-a case where Bork would have the courts do nothing-Story says that courts should be skeptical, to put it mildly, of the legislature's power to act where the result would be to take liberty or property away without corresponding gains to the general welfare, say for the benefit of "utility vampires."' [FN110] That the "Madisonian dilemma"' is involved seems to trouble this proponent of original understanding [FN111] and contemporary of James Madison not at all.
B. Islands, Seas and Powers of Attorney
This is a serious contradiction. Where Bork sees individual rights as islands in a sea of legislative power, Story sees legislative powers as islands (and artificial ones at that) in a sea of preexisting individual rights, and believes that the courts should be hesitant to conclude that the people have granted those powers indiscriminately. This conflict raises serious problems since Bork purports to derive his own view of majority/minority relations, and of the "original understanding"' jurisprudence needed to police those relations, from the original understanding of the Framers-and since Bork himself identifies Story as a leading practitioner of just the approach he espouses.
Interestingly, Story's position looks more like that of Justice Chase in Calder v. Bull, [FN112] for which Chase was excoriated by *1077 Bork. [FN113] The congruence between these two positions will be made clearer by revisiting what Chase said, without Bork's editorial omissions. The italics in the following passage are mine, not Justice Chase's.
I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the constitution, or fundamental law of the state. The people of the United States erected their constitutions or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the federal, or state legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law, in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded. [FN114]
There is more in this vein, leading Chase to conclude, as Bork emphasizes, *1078 that a contrary assertion "that our federal or state legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments."' [FN115]
Lest I myself be accused of substituting typography for argument, I will elaborate here on what Justice Chase and Justice Story seem to be saying. In essence, it appears to be their position that, since the American revolution and the establishment of "free and republican"' governments at both the state and federal levels, governmental power should be seen as limited to serving those objectives for which the governments were established-security, the protection of personal liberty and property and the promotion of general welfare. Where a legislative act is not intended to serve those functions, because it consists of taking liberty or property from A to give to B without involving some effort to promote the general good, it is outside the power of the legislature and hence is void. Note that despite the language of Justice Iredell quoted by Bork, [FN116] no conception of "natural law"' or "natural justice"' enters into this position-it is, rather, a rule of construction (much as a court might use in construing, say, a contract) based on what the framers of state and federal constitutions intended in establishing those constitutions. [FN117] So think both Justice Story-whom Bork *1079 himself identifies as both a leading practitioner of original understanding and as a leading and reliable expositor of what the Framers meant-and Justice Chase, whom Bork identifies as a leading exponent and practitioner of judicial lawlessness. What is more, Bork's hero, Justice Iredell, also chimes in with something that sounds rather similar:
If, then, a government, composed of legislative, executive and judicial departments, were established, by a constitution which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government any court of justice would possess a power to declare it so....
In order, therefore, to guard against so great an evil, it has been the policy of all the American States, which have, individually, framed their state constitutions, since the revolution, and of the people of the United States, when they framed the federal constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. ... There are then but two lights, in which the subject can be viewed: 1st. If the legislature pursue the authority delegated to them, their acts are valid. 2d. If they transgress *1080 the boundaries of that authority, their acts are invalid. [FN118]
Or, as Iredell had said earlier, before joining the Court, a constitution is "a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given."' [FN119] Thus, although it is impossible to tell whether Iredell, Chase and Story would all agree on precisely what authority might be delegated in a given case, all seem to agree that legislative authority is not generally unrestrained, and that (apart from any consideration of identified rights) where that authority exceeds the objects of the intended delegation it is void. All, in other words, agree that legislative powers are "islands"' and individual rights the "sea"' rather than the other way around, as Bork would have it, and furthermore would look closely to see whether there was a "meeting of the minds"' regarding a claimed grant of legislative power that seems to put important rights of liberty and property at stake. [FN120]
*1081 Now this, it seems to me, goes right to the heart of Bork's theory, and we haven't even gotten to the Bill of Rights yet. Even if Bork's theory is correct as a general guide to interpreting the Constitution, it is patently useless in its (to him) primary purpose as a check on judicial action, since it can lead to results fundamentally incompatible with the analysis undertaken by Bork. After all, if a group as diverse as Story, Chase and Iredell agrees on a view of what the Framers had in mind regarding the roles of majorities and minorities that is exactly the opposite of that held by Bork, then "original understanding"' does not appear to be of much use in determining first principles, let alone results. What is more, Bork's political theory is itself entirely inconsistent with his theory of judicial interpretation, since the "'original understanding"' of the Framers seems-based on what we have just seen-to preclude the sort of largely untrammeled majoritarianism that Bork champions. Furthermore, as Bork himself applies his theory, results are determinable purely by assignments of the burden of persuasion-assignments made without any reference to the intentions of the Framers and, in fact, contrary to the Framers' views on the subject. [FN121] If a theory can produce results over a wide range, as Bork himself says, it is useless as a check on the judiciary, and Bork's own theory certainly seems to fail this test. [FN122] In fact, it has been useless even as a check on Bork himself, since he has managed to manipulate it to achieve the results he wants-quite possibly without even realizing that he was doing so. However, in case it is not yet entirely clear just how little there really is to his approach, at least in terms of what he thinks it is good for, I will *1082 revisit the case of Griswold v. Connecticut [FN123] in these terms.
IV. JUDICIAL UNDERSTANDING AND ORIGINAL SIN
If, as Robert Bork would have it, interpretation without narrowly formal restrictions is a red-cloaked siren tempting scholars and judges to their ruin, then I must remind him of what Christ said to the onlookers in the Gospel's recounting of Mary Magdalene's rescue: "He that is without sin among you, let him cast the first stone."' [FN124] Bork identifies the Griswold case and its progeny as the premier examples of judicial seduction, and yet (as we have seen) close examination of his analytical collar and tie suggests that he has been engaging in a bit of scholarly dalliance of his own. With this in mind, perhaps a second look at Griswold is in order.
Bork, you will recall, attacked the Griswold opinion in rather intemperate terms. Without repeating either the various epithets that Bork applied to the case, or my earlier discussion of it, [FN125] I will briefly revisit what Douglas did. First, he noted that the Court lacked power to review policy decisions of the legislature that applied generally to matters such as economic problems, business affairs or social conditions. [FN126] In the instant case, though, he noted that what was at stake was an "intimate relation of husband and wife,"' so that the legislature's action could not be upheld without further analysis of its legitimacy. [FN127] He next looked at various provisions of the Bill of Rights that seemed to bear on similar situations-privacy, the home, etc. [FN128] Then he quoted the ninth amendment, which provides that " t he enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."' [FN129] In light of the above, he concluded that the Connecticut legislature was without power to pass a law that prohibited contraception, because doing so would interfere with the right of privacy. [FN130]
If this sounds interestingly like what Bork's favorite originalist, *1083 Joseph Story, said in the passage quoted a bit earlier, [FN131] it is with good reason. While most would agree that Douglas' strengths as a Justice lay more in the areas of intuition and vivid prose style than in analytical rigor, and while the language about "penumbras"' and "emanations"' seems to cast shadows more than it illuminates, a good argument can be made (heck, I'm making it right now) that what Douglas was really doing was trying to determine whether the state government could be presumed to possess (in Story's words) the "transcendental sovereignty"' to invade the "sacred"' right of liberty in this fashion, [FN132] or whether " t he people ought not to be presumed to part with rights, so vital to their security and well-being"' as the right to decide whether or not to have children (or sex), "without very strong, and positive declarations to that effect"' going beyond any general delegations of legislative power. [FN133] As additional evidence, I note Douglas' quotation of the ninth amendment, which to my mind commands just the rule of construction propounded by Story. [FN134] In this regard, Douglas' reference to the *1084 fact that the liberty in question predated the Bill of Rights and the Constitution is not "incoherent,"' as Bork would have it, [FN135] but entirely relevant in assessing whether it is the sort of liberty that people ought to be presumed not to have parted with through general delegations of legislative power, whether at the state or federal level. [FN136]
*1085 Note that if this is the case, Bork's criticism falls apart entirely. We have already seen that the Constitution on its face rejects his equal-rights-for-utility-vampires construction. And we have seen that the Framers understood the scope of legislative power, and the means of determining it, much differently than does Bork. Now we see that his original understanding philosophy, conscientiously and rigorously applied, actually supports the decision in Griswold, particularly when we refer to the commentator, Joseph Story, whom Bork himself holds out as a leading practitioner of, and authority on, original understanding. Such contradictions demonstrate that "original understanding"' jurisprudence isn't much good at constraining results even when applied by Bork himself. These are problems that are serious-in fact fatal-when judged according to Bork's own pronounced methods of testing theories for legitimacy, and suggest that Bork's argument, though vigorous, has generated far more heat than light. Further examination of what the Framers might have said about the issue in Griswold (at least as that issue is characterized by Bork) should make this still clearer.
*1086 A. Griswold: The New Generation
Of course, as a teacher of constitutional law it is my professional duty to maintain that I could-if allowed-improve on virtually any Supreme Court opinion, a sentiment with which Professor Bork will surely sympathize. Thus, were I given a license to revise Griswold to be more in line with the original understanding of the Constitution, I would not change the outcome (which, as I have said, is entirely consistent with a reasonable construction of original intent as is), but might add a few points as follows.
Remembering that, in Bork's characterization, the case is about the ability of a majority to obtain moral satisfaction by preventing minority activities of which it disapproves, notwithstanding the lack of any tangible adverse impact of these activities on others, I would look first at the text of the Constitution. Reading it in order, I would first notice the preamble. [FN137] It is true, of course, that the preamble is not generally regarded as having binding legal effect-Bork characterizes its language as "entirely hortatory and not judicially enforceable"' [FN138]-but surely it is there for some reason. After all, in construing contracts or wills, courts certainly pay attention to the purposes set out in their recitations, and (if we are to act as lawyers) we can do no less with regard to what is part of our most important document. Moreover, since we have seen that the Framers believed that the scope of legislative power granted by a constitution, like the reach of a contract, is determined by the ends that its parties had in mind, the part of the Constitution that states those ends certainly ought to be worth looking at-particularly if we are construing the Constitution in the same fashion as a contract or will, as Bork would have us do.
I am not the only one to think the preamble important-Justice Story devotes an entire, rather lengthy, chapter to it in hisCommentaries. [FN139] Story's views on the importance of the preamble are much closer to my own than to Bork's:
The importance of examining the preamble, for the purpose of expounding the language of a statute, has long been felt, and universally conceded in all juridical discussions. *1087 It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute.... There does not seem any reason, why, in a fundamental law or constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble. And accordingly we find, that it has been constantly referred to by statesmen and jurists to aid them in the exposition of its provisions. [FN140]
Thus, being content to remain on the side of the "statesmen and jurists,"' I will quote the preamble in full:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. [FN141]
So what does this tell us about the "originalunderstanding" of whether Connecticut moralists should be able to prevent others from using birth control simply because the idea bothers them? [FN142] Well, to begin with, in light of their experience with the "excesses of democracy"' during the period between the Revolutionary War and the adoption of the Constitution, it seems doubtful that the Framers would regard a "more perfect union"' as one that permitted such laws. "'Winner take all"' majority rule, as we have seen, *1088 was hardly what the Framers had in mind. [FN143]
We will (with some misgivings) pass over the term "Justice,"' which Bork assures us is not intended to mean anything of substance, [FN144] and look at the term "ensure domestic tranquility."' Justice Story informs us, and all sources seem to agree, that one of the main concerns of the Framers was the minimization of disputes growing out of what they called "faction."' [FN145] "'By a faction,"' Story says, "we are to understand a number of citizens, whether amounting to a minority or majority of the whole, who are united by some common impulse or passion, or interest, or party, adverse to the rights of the other citizens, or to the permanent and aggregate interests of the community."' [FN146] Story goes on to note that
[i]f a faction be a minority, the majority may apply the proper corrective, by defeating or checking the violence of the minority in the regular course of legislation.... But if the faction be a majority, and stand unchecked, except by its own sense of duty, or its own fears, the dangers are imminent to all those, whose principles, or interests, or characters stand in the way of its supreme dominion. [FN147]
So far, a grant of untrammelled power to the moralistic majority of Connecticut seems to be in conflict with the Framers' intent since, by Bork's own characterization, it is a group, united by some passion or interest, adverse to the rights of other citizens. If the preamble means what that noted originalist Joseph Story says it does (and what I believe it does, though Bork no doubt would find my opinion less persuasive), then the idea that one group of citizens, simply because it is in the majority-or at least is an "intense *1089 and politically influential minority"' [FN148]-can, consistently with the original understanding of the Constitution, legislate against an activity of a minority not for any general public good but in order to satisfy its own selfish moralistic cravings (these being indistinguishable on any principled basis, according to Bork, from the "sexual gratifications"' of the couples whose contraceptive use is outlawed) [FN149] seems outlandish, as does a view of majority/minority relations that explicitly endorses such an outcome. Thus, an "'original understanding"' version of Griswold might easily invoke an antifactionalist reading of the proper scope of legislative powers along its way to striking down the Connecticut statute.
Furthermore, if maintaining "domestic tranquility"' remains important (and I mean no pun here), a ban on contraceptives is not the way to do it. If one accepts Bork's characterization of the law, the minority is undoubtedly going to be aware that it is being pushed around-in a particularly intimate and affecting way-by the majority for no reason other than the majority's private gratification. [FN150] That is hardly likely to promote public spiritedness, "'domestic tranquility"' or an absence of factionalism, and argues against a reading of the Constitution that would permit such legislation, which is arguably what Douglas meant in talking about the special consideration due intimate affairs as opposed to matters of social and economic policy. [FN151] So far, Douglas' approach in Griswold is looking better, and Bork's is continuing to do poorly.
Skipping over the part about "common defence,"' which seems to me to have little to do with the question at hand, [FN152] we come next *1090 to the language about promoting the "general welfare."' This language seems to me, and to Justice Story, to relate primarily to the superior power of a single, unified government to deal with such matters as international trade and commercial regulation. [FN153] I would note, though, that the language is "'general welfare,"' not "the welfare of whoever is on top politically at the moment."' In this regard, it is significant that Congress is forbidden, for example, from favoring any particular state or port in the regulation of trade, notwithstanding that majority interests might desire it. As the Constitution says, "No preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another."' [FN154] This suggests that "general welfare"' means general welfare. Read together with, say, the takings claus s in the fifth and fourteenth amendments (about which I will say more in a moment), this reading seems to be responsive to our question in suggesting that general welfare is more than just what the legislature says it is at a given moment-which would be mere tautology. Thus, were I rewriting Griswold in response to Bork's argument, I might rest part of my revision on the idea that legislatures simply are not empowered to advantage one group at the expense of another merely for some private gain to the group in power, and in doing so, I could draw on this provision as evidence that this was the Framers' understanding.
We are finally faced with the last clause in the preamble, "to secure the blessings of [l]iberty to ourselves and our [p]osterity."' What could the Framers have meant by this? They might have meant simply whatever liberties people had under their state constitutions. On the other hand, the preamble does not say that; it says "we the people"' want "to secure the blessings of liberty."' Note that it does not say that "we the people of various states,"' desire "to hold on to the liberty we have."' It says that "we, the people of the United States," that is all Americans, want to "secure" the blessings of liberty "to ourselves and our posterity."' Although I admit that there is room for debate here, and this matter *1091 is hardly necessary to my general point, to me the preamble says that the existing liberties are not enough and that that is why the Constitution is adopted. And the mention of "our posterity,"' along with the generally prospective language of the preamble, [FN155] suggests to me that the Framers are taking the long view as to what "'liberty"' may come to mean. [FN156]
Having already discussed a number of provisions in the main body of the Constitution that seem, to me at least, to undercut Bork's political theory and that also tend to support the approach taken in Griswold, and having discussed as well Justice Douglas' treatment of the Bill of Rights and the ninth amendment in that same case, I will out of mercy to readers refrain from analyzing them in more depth here, though I think that there is room to do so. [FN157] Instead, I will touch briefly on the part of the Constitution that seems to me to shed particularly useful light on Bork's characterization and Douglas' disposition.
B. Moral Takings
Somewhat earlier, the reader may recall, I used the term "moral taking not for public use"' [FN158] to describe the Connecticut birth control statute, at least as characterized by Professor Bork. Although I have already explored that conception somewhat in terms of the contracts clause, I believe that the most useful way of viewing Bork's problem is in the context of the takings clause. That clause (contained in the fifth amendment and applicable to the states through the fourteenth) provides that property shall be taken only for public use, and only where just compensation is paid. [FN159]
*1092 The point of the takings clause is fairly obvious, though its application can become complex. Basically, though, it is intended to ensure that the political majority does not make use of its position to rob minorities of their interests through the exercise of raw power. [FN160] The "public use"' requirement means-or at least was intended to mean, which is just as good for our purposes-that whatever is taken must be seized for the benefit of the general public, not for the benefit of private interests. The compensation requirement serves two distinct but related purposes: first, it ensures that those whose property is taken are compensated, at least for the economic value of what is taken. Second, it ensures that the exercise of political power at someone else's expense is not costless to the majority; the majority must pay out money, which requires either foregoing other government activities (and paying the political and economic costs thereof) or raising taxes (and paying the political and economic costs thereof). [FN161] Based on the Constitution as a whole, along with other things that they wrote, the Framers appear to have been sufficiently shrewd judges of human character to know that people's enthusiasm for all sorts of activities (especially, I would suspect, moral crusading) often proves astonishingly *1093 thin once it is clear that they will receive a bill at the end.
Yet in Bork's version of Griswold the majority gets something for nothing. For the trivial cost of passing a law, it is able to enjoy a wonderful sense of moral gratification, while the costs of that gratification are borne entirely by the couples who are unable to use contraceptives. Is it unreasonable of me to say, particularly in light of all the foregoing, that the Framers would probably have looked askance at this kind of transaction, and probably, as Justice Story suggests, [FN162] would have regarded such an action, for such a reason, as outside the power of a legislature in a free society? I don't think so. Although Justice Story might have made these points more explicitly and thus have written a better opinion than did Justice Douglas, from an "original understanding"' perspective the outcome would likely remain the same.
Notice also that in keeping with Bork's prescription I have a neutral principle here: Where a majority, to satisfy its own sense of morality, intrudes into the lives of individuals regarding activities that do not create any cognizable non-moral harm, such an activity is a "moral taking not for public use"' and should be regarded as outside the power of a legislature in a free society. As Bork requires, the principle is derived from the Framers' understanding of what the Constitution was about, [FN163] and it should be entirely possible to apply it in a scope and manner consistent with that understanding without encountering the problems that Bork sees in the context of Shelley v. Kraemer. [FN164] Indeed, it would appear that Justice *1094 Douglas has done so, if imperfectly, in Griswold. [FN165] Yet despite applying Bork's methods and relying strictly on his sources, I (arguably along with Justice Douglas) have developed a principle, and reached an outcome, precisely opposite to that advocated by Bork. What this means, of course, is that the judicial paradise that Bork seeks is unattainable, at least in this world.
V. PUTTING HORNS ON THE DILEMMA-AND LEARNING TO LIKE IT
I have made two key points thus far: first, that Bork's majoritarian political theory-that the Madisonian dilemma requires *1095 that judicial review of statutes be limited to narrowly-drawn areas within the Bill of Rights-is inconsistent with his judicial theory that judges must follow the original understanding of the Framers. And second, that Bork's judicial theory does not mandate the outcome he says it does in Griswold but, instead, supports the outcome reached by Justice Douglas, though this seems to have escaped Bork's notice.
As to the first point, it is no surprise that Bork's judicial theory and his political theory are incompatible. The very nature of the Madisonian dilemma means that one cannot have both majoritarian rule and judicial review without potential for conflict. That is why it is a dilemma, and no theory-whether based on "original understanding"' or quantum mechanics-can make it go away, at least not without changing the Constitution or our society beyond recognition.
The second point, to me, is a bit more curious. I find it difficult to see how Bork can so misunderstand things. Perhaps he can be excused from misreading Griswold, which is hardly a model of clarity, though I find it difficult to see how someone as steeped in originalism and the works of Justice Story as Bork makes out to be can miss the boat so completely. Although I will agree that Justice Douglas could have written the opinion more clearly, there is certainly enough there for any "original understanding"' scholar to follow to its conclusion if she really wants to. I can only conclude that Bork, whether consciously or unconsciously, did not want to, as he does not raise, even to reject, the issues I have mentioned.
Of course, it may be that I am simply wrong, and that my reading of Griswold is incorrect. But that does not help Bork at all-in fact, it hurts his case rather badly. For if someone employing the tools of "original understanding"' as Bork himself describes them (and please note that I have stuck entirely to sources that Bork specifically approves and have not attempted to wallow in the endless mire of secondary sources, many of dubious validity, that are available under Bork's own prescription) can reach a result so thoroughly out of phase with that of Bork himself, then the theory is of little use in determining outcomes and, hence, in constraining judges to their constitutionally-defined role. The Madisonian dilemma remains.
*1096 A. Some Realism About Originalism
If the Madisonian dilemma remains, and rather obviously so, even in the face of "original understanding"' jurisprudence, how can Bork maintain otherwise with such confidence? Does he in fact know better, and is he simply lying [FN166] in order to reach the particular results that he does? It would be tempting to conclude so, and God knows that at this point in history the seductive appeal of cynicism has become well-nigh irresistible. I will resist, however, because I believe the reason to be otherwise. Early on, [FN167] I mentioned that Bork seems to see himself in the role of prophet, leading America away from the temptations of academic liberal-elitism and toward the path of majoritarian righteousness. Alas, the problem with being a prophet nowadays is that God (perhaps embarrassed by the crimes committed in His name over the years) does not make His presence as available to His instruments as He once did.
Bork, however, is not the sort to let minor problems stand in his path. In the absence of burning bushes in the libraries of the Yale Law School, the D.C. Circuit and the American Enterprise Institute, Bork has chosen to pursue our salvation in another way: through his doctrine, he seeks a kind of substitute god capable of generating the kind of answers he requires. Since, Roberto Unger's pleas notwithstanding, God will not speak and tell us what is right and what is wrong, [FN168] Bork substitutes the holy ghosts of the Framers. Indeed, he is almost explicit about what is going on:
Even if evidence of what the founders thought about the judicial role were unavailable, we would have to adopt the rule that judges must stick to the original meaning of the Constitution's words. If that method of interpretation *1097 were not common in the law, if James Madison and Justice Joseph Story had never endorsed it, if Chief Justice John Marshall had rejected it, we would have to invent the approach of original understanding in order to save the constitutional design. [FN169]
With this construction in mind, even Bork's ordeal before the Senate (which occupies a substantial portion of his book that I have not addressed) and the inclusion of that narrative in a book purportedly about constitutional interepretation, become understandable. All prophets, at some point, must be rejected and humiliated by the very masses whom they are trying to save. [FN170] Bork certainly sees himself in that role, and he predicts an Armageddon yet to come:
If the philosophy of political judging is heresy in the American system of government, it is the orthodoxy of the law schools and of the left-liberal culture. I would have done well to remember that in the old days nobody burned infidels, but they did burn heretics....
... That battle is over, but the war in both our legal and general culture goes on. There will be more blood at the crossroads where law and politics meet. [FN171]
With this in mind, the reason for Bork's otherwise puzzling view of *1098 Griswold-and of the constitutional role of majorities generally-becomes clear. One cannot expect a man who has gazed on the face of God (even, or perhaps especially, when the god in question is one that he has built himself) to see the things of our fallen world very plainly, especially when they seem to contradict understanding from on high.
It won't work, of course. Arthur Leff wrote eloquently and repeatedly about just this phenomenon in contemporary legal scholarship-the effort to derive from within the system of legal thought a way of objectively judging it from outside. As Leff said:
[M]uch that is mysterious about much that is written about law today is understandable only in the context of this tension between the ideas of found law and made law: a tension particularly evident in the growing, though desperately resisted, awareness that there may be, in fact, nothing to be found-that whenever we set out to find "the law,"' we are able to locate nothing more attractive, or more final, than ourselves. [FN172]
That Bork should flee from this notion is understandable; that setting up a substitute god in his own image must fail is inevitable. The Madisonian dilemma exists because we want two different, and incompatible, things: rule according to principle and rule according to will. [FN173] In this fallen world, at least, one cannot have both. That is why Bork's theory-and all like it that are made to carry the same weight-must ultimately fail.
So what do we do? That, not to put too fine a point on it, depends. If we wish to escape the Madisonian dilemma, I fear that the only answer is to emigrate to nations lacking either judicial review or democracy, or to get rid of one or the other at home. I recommend against the latter course. Readers will note that no *1099 complaints about such dilemmas have emerged from the Soviet Union-though that might change, and if it does it will be a sign of progress, not a cause for despair.
Instead, we might simply learn to live with the Madisonian dilemma, and even to find it a valuable source of creative tension that is worth any minor threat it may pose in the way of government by judiciary. My rather discouraging conclusion about the usefulness of theory in constraining judges does not by any means imply that judges may not be constrained in other ways that are effective enough, and at least as valid. The Framers themselves provided some ways of doing just this, and if the mechanisms that they prescribed are not airtight, they may nonetheless be considered adequate to the task at hand when it is remembered that-for all the talk about "judicial tyranny"' in the law reviews and on the political talk-show circuit-a search in the real world will turn up no real judicial tyrannies, but a wealth of more traditional varieties of oppression.
Certainly what the Framers did provides some insight into their views of the Madisonian dilemma, and appropriate ways of dealing with it, that Bork completely overlooks. Let us imagine that the Framers, being for the most part practical sorts drawn from the ranks of commerce and politics, considered and dismissed the prospect of constraining judges through theory. Perhaps they were smart enough to recognize the futility of such efforts, or perhaps-not being law professors-they simply lacked any very strong predisposition toward the theoretical. [FN174]
For whatever reason, though, if they distrusted theory they might have had more confidence in their own ability to judge human beings and to recognize those whose characteristics made them unfit for judicial duties. After all, politics, commerce and the practice of law all demand a familiarity with human nature, and just as law professors might look first to the kinds of things that we are used to judging-doctrinal rigor, theoretical consistency, length and number of footnotes-so those in more practical *1100 spheres might look to matters which they feel comfortable judging, such as honesty, firmness of character and open-mindedness. If the Framers trusted their own abilities in that regard, they might well have felt that in general the political and commercial types who would likely make up the Senate could be trusted to evaluate those kinds of qualities as well. [FN175]
Believing this, and perhaps believing that a good theory in the hands of a bad judge might do more damage than a bad theory in the hands of a good one, the Framers might have been expected to put more emphasis on the character and quality of the judiciary than on the theories that judges were to employ. And, in fact, that is exactly what they did. Although the Constitution sets out the character of the judiciary and the procedures by which its members are to be appointed, compensated and removed, the only guidance provided on the question of construction appears, interestingly enough, in the ninth amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."' [FN176] And that guidance is rather specific.
By contrast, the question of by whom the Constitution is to be construed receives considerably more attention, something thought fitting by none other than Justice Story himself. Story said that the Framers intended the judiciary to protect against majoritarian excesses, since otherwise the "people would thus be at the mercy of their rulers, in [both] the state and national governments; and an omnipotence would practically exist, like that claimed for the British Parliament."' [FN177] But for this protection to be meaningful, the judiciary must be honest, firm-willed, open-minded and wise. Story went on to say:
The judiciary must be so organized, as to carry into complete effect all the purposes of its establishment. It must possess wisdom, learning, integrity, independence, and firmness. It must at once possess the power and the means to check usurpation, and enforce execution of its judgments. Mr. Burke has, with singular sagacity and *1101 pregnant brevity, stated the doctrine, which every republic should steadily sustain, and conscientiously inculcate. "Whatever,"' says he, "is supreme in a state ought to have, as much as possible, its judicial authority so constituted, as not only not to depend upon it, but in some sort to balance it. It ought to give security to its justice against its power. It ought to make its judicature, as it were, something exterior to the state."' The best manner, in which this is to be accomplished, must mainly depend upon the mode of appointment, the tenure of office, the compensation of the judges, and the jurisdiction confided .... [FN178]
Thus, it is fair to say that the Framers did, in fact, believe that the judiciary was an important check against tyranny on the part of the political branches, that tyranny by the judiciary was on the other hand not much of a threat, and that to the extent that it was a threat, the best check against judicial tyranny was to be found in the appointment process [FN179] and its scrutiny of an appointee's qualifications, particularly in terms of character, independence and integrity. Since these are the sorts of things that the political branches, the executive and the legislative, are well equipped to evaluate, it is not surprising that the Framers assigned the process of nomination and appointment to them. Yet if this is all so straightforward, it is difficult to reconcile with Bork's rather different view of the process.
It should be pretty obvious where this is leading, so I will try to be brief. In short, Bork's confirmation hearings, though admittedly something of a circus, nonetheless represented a serious inquiry into just these kinds of questions: temperament, open-mindedness, integrity. They also demonstrated a great deal of interest in the results of applying his theories. Yet Bork in his book makes clear that he believes the hearings should have focused on his (undisputed) intelligence and in particular on his judicial philosophy. Bork does not deny that his judicial philosophy was discussed, but rather maintains that the Senate got things wrong:
*1102 I was now to learn that there is no possibility of an adequate judgment of judicial philosophy by a group of Senators, nor is that fact surprising. Aside from my years as a judge, I had spent decades analyzing and assessing courts and their performance in a wide variety of contexts. Senators, even the best of them, and the best are very good, simply do not have much experience with constitutional law, either as practitioners or professors. [FN180]
Well, yes. That is why, as I mentioned above, the confirmation process is not properly understood as a technical inquiry into theoretical matters. Such an inquiry is far more appropriate to those who, as Bork notes, have the experience and predisposition for such matters, such as law professors and judges. The Framers, however, did not place the confirmation process in the hands of law professors and judges. Assuming as we must that they knew what they were doing, the Framers by placing the confirmation power in the hands of a political branch must have intended it to act like a political branch. Certainly Bork, who has thought about these matters a great deal, does not suggests that the Framers had something else in mind.
What does it mean to "act like a political branch?" In terms of modern, interest-group political theory it simply means responding to constituent pressures. Bork certainly would not accuse the Senate of failing to do that. But even if one maintains (as I am not entirely certain that Bork would) that the senators were themselves bound by the intent of the Framers in considering Bork's nomination, it seems clear that such consideration properly involved concerns other than judicial philosophy and intelligence. Without going into the merits of the many charges made against Bork (some of which admittedly were unfair), the senators did in fact consider a number of issues of the sort that an "original understanding"' approach, as set out above, would make relevant.
To put matters simply, the most important question is whether a nominee can be trusted to judge fairly, impartially and on the basis of the case before her. In Bork's case, the very rigidity of his theories might have been thought to call that question into doubt, for if, as he says, the theory determines the result, then there is no *1103 constitutional case that he has not prejudged in some sense. Senators, being (as Bork rightly notes) not the best-suited for evaluating constitutional theories, can thus be excused for being doubly suspicious-first, of whether a judge by adopting such a mechanical theory has not in some sense abdicated the judicial role, and second, of the theory itself, which (according to Bork) will determine results and yet which they are by virtue of experience and inclination poorly suited to evaluate. And the senators may have felt that some of Bork's statements (the famous "confirmation conversion"') betrayed a willingness to compromise his principles that suggested a deficit of the very integrity, firmness of character and willingness to resist political pressure that (as noted by Story) are so essential to members of the federal bench in general and the Supreme Court in particular.
Leaving the nominee's character aside, the confirmation process also might rightly be seen as bringing the political branches into play precisely to focus attention on results as well as theory. Any theory, however well- grounded, will from time to time inevitably produce results that seem intuitively wrong, and in a democracy, as Bork should agree, perhaps the voters' intuitions deserve some role-a role that they clearly played in Bork's case. This may not be so bad. As Story himself says, in a passage quoted with approval by Bork, "'A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation."' [FN181] Perhaps this was what the Framers had in mind when they placed judicial appointments in the hands of the political branches; given the alternatives, it certainly seems like an adequate response (though by no means a cure) to the Madisonian dilemma. Bork, however, plainly sees concerns about the specific results of applying his theory as unprincipled and improper. [FN182] It is difficult to see why this should be so.