Last year, Mitt Romney made Robert Bork the co-chair of his justice advisory committee. The appointment offers a window into Romney’s judicial philosophy and suggests that Romney would nominate people with Bork’s constitutional notions to the federal bench, including the Supreme Court.

Most commentary about Bork is the usual red-blue stuff. Conservatives generally like him for the same reasons liberals dislike him: he has conservative views on social issues, and he believes in expanding states’ rights. But can we get past his political beliefs, as important as they are, and look at his constitutional ones, too?

Bork’s constitutional beliefs are no secret. He sets them out in The Tempting of America, a bestselling book he published shortly after his failed Supreme Court nomination during the Reagan Administration.

Read the book: Bork doesn’t believe in inalienable rights. He doesn’t believe in self-evident truths. That should concern all Americans — conservatives, liberals, and moderates alike.

Instead of truths, Bork believes in certain values. (Haven’t I heard so many of my socially conservative friends mock the notion of “values” as a subjective substitute for the notion of objective truth?) If the Constitution is silent or unclear about a point, Bork believes, then the “majority morality” — the majority’s values — should control:

There is no way to decide these questions [placing moral positions at odds with one another] other than by reference to some system of moral or ethical principles about which people can and do disagree. Because we disagree, we put such issues to a vote and, where the Constitution does not speak, the majority morality prevails. (From The Tempting of America)

In our pluralistic society, he says, the controlling values are the majority’s. But is this really a majority’s prerogative? Isn’t this the kind of nihilistic thinking conservatives often attribute to liberals?

Here’s conservative Edward J. Erler‘s response to Bork:

Indeed, Madison, like Jefferson, argued . . . that a majority may do only those things “that could be rightfully done by the unanimous concurrence of the members.” Thus it is not simply the will of the majority that “rightfully” rules in a democracy, but the rational will of the majority. In the same vein, Jefferson wrote that “[i]ndependence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law.” Thus, it is clear that Madison and Jefferson viewed the people as a moral entity, not simply as a collection of discrete value-positing individuals. The positivism of both Bork and Rehnquist is predicated on a kind of moral relativism that ultimately leads to nihilism.

– Edward J. Erler, in his introduction to Harry V. Jaffa’s Storm Over the Constitution, p. xxix

What makes a Strict Constructionist a Strict Constructionist? At bottom, the denial of self-evident truth. Strict Constructionists adhere to the letter of the Constitution even in situations when traditional Constitutional construction would lead jurists outside of the text. (John Marshall, for instance, sometimes would argue a Constitutional provision only to reinforce a finding he would make chiefly through natural law.) What drives Strict Constructionists to overly fixate on the Constitution’s text? Partly the same literalism with which some Protestants approach the Bible in response to the Enlightenment. Partly their core belief that no one can divine the Constitution’s spirit or distinguish between its ideals and its political compromises. And partly their reaction to the progressives’ Living Constitution. But Strict Constructionists never meet the Living Constitution’s argument that we can’t know what the Framers meant. Instead, they reinforce the Living Constitution’s argument through their over-insistence on the Constitution’s letter.

We can usually know what the Framers meant. It’s no secret. Sure, a lot of important, fundamental matters divided them — the nature of federalism and the extent of the franchise, for instance. But a relatively new philosophy and an older heritage united them: Lockean liberalism and the broader notions of natural law and English common law. Original intent is an open mind informed by a vigorous legal and constitutional tradition. Beside it, Strict Constructionism and the Living Constitution appear merely as simplistic rules of statutory and constitutional construction.

Bork believes that we cannot, as a society and through reason¹ and difficulty, rediscover the first principles in the Declaration of Independence that animate the Constitution. But if our society is incapable of discovering first principles, then self-government must in the long run fail. No one with such a narrow and pessimistic view of human nature can believe in American republicanism.

Are conservatives so anxious to reverse the last century of progressive gains that they would surrender their beliefs in self-evident truths, inalienable rights, and republican government to do it?

I wrote my first letter to the editor before I was ten, and I’ve been writing them about every ten years since. Here’s my latest.  The Washington Post column I was responding to seems to be no longer on the paper’s web site or anywhere else on the Internet, for that matter.

Like my previous letters, this one was not published.

Dear Sir:

Mr. Brag Bowling [Civil War 150, “No Abolitionist He,” Mar. 4] offers the South’s rejection of the Corwin Amendment as evidence that it wasn’t fighting to preserve slavery but “for a higher purpose, their political independence.” (The 1861 Corwin Amendment would have prevented any future Constitutional amendment from allowing Congress to end slavery in any state.)

While many Southerners didn’t trust Northern promises to uphold slavery in states where it existed, the South seceded over the Republicans’ promise to stop slavery’s spread into the nation’s considerable western territories.  The territories had been the national slavery debate’s political focus from the time of the Northwest Ordinance (1787) to the Missouri Compromise (1820), the Wilmot Proviso (1847), the Compromise of 1850, the Kansas-Nebraska Act (1854), and Bleeding Kansas (1854 – 1858). One need only peruse Donald Reynolds‘s excellent book Editors Make War: Southern Newspapers in the Secession Crisis to get an idea of how quickly the South turned to secession as a result of the Republicans’ 1860 electoral success and their commitment to stop slavery’s spread.

I’m a Virginian who, like Mr. Bowling, had forefathers who fought for the Confederacy, but I cannot honor – much less reinvent – the Confederacy’s motive.

During last night’s CNN-sponsored Republican presidential debate in South Carolina, Newt Gingrich alluded longingly, as he often does, to the Lincoln-Douglas debates. “I’d be quite happy to have a three-hour, Lincoln-Douglas-style debate with Barack Obama. I’d let him use a teleprompter. I’ll just rely on knowledge. We’ll do fine.”

Gingrich chafes under the modern debate format’s time constraints – not the aggregate time constraints: last night’s two-hour debate wasn’t that much shorter than the ones Lincoln and Douglas agreed to – but the time each candidate has to lay out his position before the next one speaks.

Little I’ve heard from Gingrich, though, suggests that he wishes to debate anything like the fundamental issues Lincoln and Douglas debated on seven occasions across Illinois in 1858. He just wants the uninterrupted 30-, 60-, and 90-minute time blocks the debaters enjoyed back then. (Lincoln and Douglas didn’t use moderators, either, and Gingrich always reserves his greatest invective for whoever’s unlucky enough to moderate the debates he participates in.)

Oddly, though, in the final minutes of last night’s debate, two of the candidates began to address an issue central to Lincoln – Douglas: what active role does the Declaration of Independence play in interpreting the Constitution and defining our federalism?

All four candidates were defending their pro-life bona fides.  Two of them – Rick Santorum and Ron Paul – began to draw distinctions between their views on how the right to abortion should end.  Short as the exchange was, it sketched out Lincoln’s and Douglas’s different approaches to the South’s right to slavery.

Paul wants to return abortion to a pre-Roe vs. Wade condition.  That is, he sees abortion as an act of violence and groups it with other acts of violence, such as murder, that the states have traditionally regulated through criminal codes and common law.

Santorum, on the other hand, believes that abortion is a federal and not a state issue.  Looking on his web site this morning, I found his list of a number of bills he sponsored or supported as a United States Senator that limited, or would have limited, abortion rights.

As I understand him, Santorum seeks not to simply overturn Roe v. Wade, which would leave the states free again to choose between criminalizing abortion or not. He seeks to outlaw abortion on a federal level as inconsistent with the Constitution as informed by the Declaration of Independence.

Here’s the actual exchange from this morning’s Chicago Sun-Times transcript:

MR. SANTORUM: Congressman Paul has a National Right to Life voting record of 50 percent, which is pretty much what Harry Reid’s National Right to Life voting record is. So for — to go out and say that, you know, you’re someone who stands up for the right to life, you repeatedly vote against bills on a federal level to promote the right to life, and you say that this is an individual personal decision or state decision. Life should be protected, and you should have the willingness to stand up on a federal level and any level of government and protect what our — excuse me — what our declaration protects, which is the right of our Creator to life, and that is a federal issue, not a state issue. (Applause.)

MR. KING: Quickly, sir.

REP. PAUL: Well, just — just for the record, I wasn’t even thinking about you when I was giving my statement.

MR. SANTORUM: (Off mic.)

REP. PAUL: So you are overly sensitive. (Laughter, cheers, applause.)

But it — but it is true that we have a disagreement on how we approach it. I follow what my understanding is of the Constitution, and it — it does allow for the states to deal with difficult problems. As a matter of fact, it allows the states to deal with almost all the problems, if you look at it. It is not given — these powers aren’t given to the Congress.

I see abortion as a violent act. All other violence is handled by the states: murder, burglary, violence. That’s a state issue. (Cheers, applause.) So don’t try to say that I’m less pro-life because I want to be particular about the way we do it and allow the states the prerogative.

This is the solution. This is the solution, because if we would allow the states to write their laws, take away the jurisdiction by a majority vote in the Congress, you repeal Roe versus Wade overnight instead of waiting year after year to change the court system. (Cheers, applause.)

Two things to note in Santorum’s remarks.  First, he deliberately corrected himself when he started to describe an unborn child’s right to life as something our Constitution protects.  He settled instead on describing it as something our Declaration of Independence protects.  He therefore seems to stand with Lincoln, who saw the Declaration of Independence as the soul of the Constitution.  (Lincoln, of course, never addressed abortion, but Santorum’s approach seems to model Lincoln’s from a Constitutional standpoint.) Lincoln went so far as to say that the Constitution’s primary mission was to protect the self-evident truths in the Declaration.

Lincoln’s penchant for reading the Constitution as a mix of ideals and political compromises and for using the Declaration to distinguish between the two was the backbone of his position in the debates.  Slavery could not be extended to the territories because the Constitution’s compromise with slavery should be strictly construed. Lincoln, therefore, saw slavery’s existence as solely a federal issue.

Douglas saw slavery as a state issue.  His doctrine of popular sovereignty, which had been embedded into the Kansas-Nebraska Act of 1854, would permit each territory to decide whether to permit slavery within its borders. Commensurate with his position, Douglas did not read the Declaration has having any bearing on the slavery issue.

The second significant point from Santorum’s remarks is this: Santorum not only described abortion as a federal issue, but he also specifically stated that it was not a state issue.  I doubt the ramifications of that statement sunk deeply into the ears of the debate’s audience. Santorum wants to in some manner make abortion illegal on a federal and Constitutional level.  Apparently, under Santorum’s formulation, states would have as much ability to make abortion legal as they now have to make slavery legal under the Thirteenth Amendment. (And read Paul’s brief defense of a limited role of the federal government under our Constitution in his response to Santorum.  It’s almost precisely Douglas’s position concerning the federal government and slavery.)

If Santorum’s argument (as I understand it) advances, think how it may shape our view of federalism and state’s rights.  Would abortion rights advocates become our next generation of states rights advocates? Would the pro-life advocates split over the issue of federalism? (Santorum, interestingly, got “applause.” Paul got “cheers, applause.”)

I don’t think Roe v. Wade will survive another forty years. The way the right to abortion ends, though, is important to our federalism, and perhaps echoes of that larger, future debate may reach back to last night in South Carolina, as brief and as halting as the exchange about it was.