Why Bork’s appointment should concern conservatives

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?

  1. A lot of conservative Christians, reacting to the Enlightenment, have a problem with the notion of reason. Reason is both biblical and foundational to self-government, however.