THE TEMPTING OF AMERICA Judge Robert Bork

In the past few decades American institutions have struggled with the temptations of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. In this quest, politics invariably tries to dominate another discipline, to capture and use it for politics' own purposes, while the second subject - law, religion, literature, economics, science, journalism, or whatever - struggles to maintain its independence. But retaining a separate identity and integrity becomes increasingly difficult as more and more areas of our culture, including the life of the intellect, perhaps especially the life of the intellect, become politicized. It is coming to be denied that anything counts, not logic, not objectivity, not even intellectual honesty, that stands in the way of the "correct" political outcome.

The process by which this is accomplished may vary from field to field, from universities to the media to courts. In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision in the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

The American people are tempted as well. Many of the results seem good, and they are told that the choice is between a cold, impersonal logic, on the one hand, and, on the other, morality and compassion. This has always been the song of tempters, and now it is heard incessantly from those who would politicize the courts and the Constitution, as a necessary stage in the politicization of the culture at large.

The democratic integrity of law, however, depends entirely upon the degree to which its processes are legitimate. A judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually coherent and politically neutral way to his result. Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy.

This strategy, however, contains the seeds of its own destruction. Since the politicization of the law has, for half a century, moved results steadily to the left, a very large number of Americans do not like those outcomes. Increasingly, they are not deceived by the claim that those results are compelled by the actual Constitution. This perception delegitimizes the law in their eyes. Conservatives, who now, by and large, want neutral judges, may decide to join the game and seek activist judges with conservative views. Should that come to pass, those who have tempted the courts to political judging will have gained nothing for themselves but will have destroyed a great and essential institution.

The clash over my nomination was simply one battle in this long-running war for control of our legal culture. There may be legitimate differences about that nomination, but, in the larger war for control of the law, there are only two sides. Either the Constitution and statutes are law, which means that their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win.

In the clash between law and politics, the integrity of the law has already been seriously undermined and the quality of its future remains very much in doubt. The forces that would break law to a tame instrument of a particular political thrust are past midway in a long march through our institutions. They have overrun a number of law schools, including a large majority of America's most prestigious, where the lawyers and judges of the future are being trained. They have an increasing voice in our politics and in Congress. But the focus of the struggle, the commanding height sought to be taken, is control of the courts and the Constitution. The Constitution, or the law we call "constitutional" - they are by no means identical - is the highest prize, and control of the selection of judges is the last step on the path to that prize. Why? Because the Constitution is the trump card in American politics, and judges decide what the Constitution means. When the Supreme Court invokes the Constitution, whether legitimately or not, as to that issue the democratic process is at an end.

Twice a year, I watched massive marches come down Constitution Avenue, one by anti-abortionists and one by pro-abortionists. The reason for those parades was, of course, Roe v. Wade, the Supreme Court's 1973 decision making abortion a matter of constitutional right, thus largely removing the issue from state legislatures, where it had rested for all of our history. Each group gathers to demonstrate outside the White House, then forms, carrying placards and sometimes chanting, to begin the lengthy walk down Pennsylvania Avenue to Constitution Avenue and on to Capitol Hill. There the demonstrators march past the Houses of Congress with hardly a glance and go straight to the Supreme Court building to make their moral sentiments known where they perceive those sentiments to be relevant. The demonstrators on both sides believe the issue to be moral, not legal. So far as they are concerned, however, the primary political branch of government, to which they must address their petitions, is the Supreme Court. There is something very disturbing about those marches, for, if the marchers correctly perceive the reality, a major heresy has entered the American constitutional system.

The foundation of American freedoms is in the structure of our Republic. The major features of that structure are the separation of the powers of the national government and the limitation of national power to preserve a large degree of autonomy in the states. Both are mandated by the Constitution. These dispersions of power, viewed historically, have guaranteed our liberties as much as, perhaps more than, the Bill of Rights itself. The phrase "separation of powers," briefly put, means that Congress has "All legislative Powers," as those are defined in Article I of the Constitution, while the President possesses "The executive Power," which is outlined in Article II, and Article III sets forth the elements of "The judicial Power." Those powers are very different in nature, as those who adopted the Constitution recognized and intended. When powers are shared, as they sometimes are by the President and Congress, the Constitution is usually explicit on the subject. Thus, the Constitution specifies that the President may veto a bill enacted by Congress and that Congress may override the veto by a two-thirds vote by each House. Similarly, the President may negotiate treaties, but they must be ratified by a two-thirds vote of the Senate. There is no faintest hint in the Constitution, however, that the judiciary shares any of the legislative or executive power. The intended function of the federal courts is to apply the law as it comes to them from the hands of others. The judiciary's great office is to preserve the constitutional design. It does this not only by confining Congress and the President to the powers granted them by the Constitution and seeing that the powers granted are not used to invade the freedoms guaranteed by the Bill of Rights, but also, and equally important, by ensuring that the democratic authority of the people is maintained in the full scope given by the Constitution.

The Constitution preserves our liberties by providing that all of those given authority to make policy are directly accountable to the people through regular elections. Federal judges, alone among our public officials, are given life tenure precisely so that they will not be accountable to the people. If it were otherwise, if judges were accountable, the people could, when the mood seized them, alter the separation of powers, do away with representative government, or deny basic freedoms to those out of popular favor. But if judges are, as they must be to perform their vital role, unelected, unaccountable, and unrepresentative, who is to protect us from the power of judges? How are we to be guarded from our guardians? The answer can only be that judges must consider themselves bound by law that is independent of their own views of the desirable. They must not make or apply any policy not fairly to be found in the Constitution or a statute. It is of course true that judges to some extent must make law every time they decide a case, but it is minor, interstitial lawmaking. The ratifiers of the Constitution put in place the walls, roofs, and beams; judges preserve the major architectural features.

That is the American orthodoxy. The heresy, which dislocates the constitutional system, is that the ratifiers' original understanding of what the Constitution means is no longer of controlling, or perhaps of any importance. The result is a belief, widely held and propagated, that judges may create new principles or destroy old ones, thus altering the principles actually to be found in the Constitution. Courts then not only share the legislative power of Congress and the state legislatures, in violation both of the separation of powers and of federalism, but assume legislative power that is actually superior to that of any legislature. The innovations are announced in the name of the Constitution - though they have little or nothing to do with it - and are therefore intended to be, and are accepted as, final. Courts have behaved in this way on occasion throughout our history, but never so often as in the modern era; what is more ominous, never before has such behavior been so popular in the law schools, in the press, and in the opinions of elite groups generally. Heresy sometimes becomes so pervasive that it becomes the new orthodoxy.

The heresy described is not peculiar to any political outlook. When it has suited their purpose, conservatives as well as liberals have surrendered to its temptation. Given the chance, no doubt many conservatives would be delighted to succumb again. If I address the failings of liberals more than those of conservatives, it is only because liberalism is currently in the ascendancy in constitutional theory and practice.

The orthodoxy of original understanding, and the political neutrality of judging it requires, are anathema to a liberal culture that for fifty years has won a succession of political victories from the courts and that hopes for more political victories in the future. The representatives of that culture hate the American orthodoxy because they have moral and political agendas of their own that cannot be found in the Constitution and that no legislature, or at least none whose members wish to be reelected, will enact. That is why these partisans want judges who will win their victories for them by altering the Constitution.