A new struggle for intellectual dominance in constitutional theory is under way at the moment. The struggle is about the duty of judges with respect to the Constitution. It is taking place out of public sight, in a sense, because it is carried on almost entirely in the law schools and in the law reviews. But that doesn’t mean it won’t affect our entire polity in the years ahead. The ideas that win hegemony there will govern the profession, including judges, for at least a generation and perhaps more.
Judge Robert Bork
The struggle to which Judge Bork refers is the latest chapter in the perennial American debate over the place of judicial review in a democratic polity. That debate is, at bottom, a dispute over the role of constitutional values in American life, and it is now at a critical juncture. It is possible that the ideas of Robert Bork—and a small group of like-minded legal theorists—will soon achieve dominance in constitutional law.
This is not because of any impending triumph in the intellectual sphere but rather because President Reagan has elevated a number of the most forceful of those theorists—men who combine, in unnerving degree, reactionary views and professional competence—to the Federal bench. There is every reason to expect that if he is reelected, he will follow the same course in making appointments to the Supreme Court, thereby determining the shape of the Court for the rest of the century.
Prediction in these matters is, of course, tricky, but several things are clear. Three of the nine members of the Court are 75 or older. The Justices farthest to the right are also the youngest (William Rehnquist is 58; Sandra Day O’Connor, 53). In view of the present alignments on the Court, even a single appointment could have great impact; depending on whom he or she replaces, the next appointee may represent the decisive vote on a wide range of issues. Two or three vacancies—and at least that many can be expected between now and the end of the next presidential term—could produce a solid right-wing majority of Justices with the skill, the energy and the unified vision to remake constitutional law.
Robert Bork is the most prominent of the legal scholars Reagan has named to the Federal appeals court. (The others are Richard Posner and Antonin Scalia, formerly of the University of Chicago Law School, and Ralph Winter of Yale.) And his name has long been rumored to be at the top of the list of candidates for the next Supreme Court vacancy. It is hard to imagine how Reagan could, for his purposes, do better. Bork is best known outside legal circles as the man who executed President Nixon’s order to fire Watergate special prosecutor Archibald Cox, but apart from that blemish, his professional credentials are impeccable: Yale law professor, Solicitor General in the Nixon and Ford Administrations, judge on the United States Court of Appeals for the District of Columbia Circuit. And he is more than just a reliable conservative vote. He is an intellectual force: a formidable and uncompromising advocate of an approach to constitutional interpretation that would severely restrict the role of the Federal judiciary—and of constitutional values—in our public life.
The fullest expression of Bork’s philosophy is a 1971 article in the Indiana Law Journal, “Neutral Principles and Some First Amendment Problems,” in which he sets forth his general approach and then, by way of illustration, applies it to the First Amendment. The result is one of the most restrictive theories of freedom of speech ever advanced. After sketching his stance on constitutional interpretation, I want to consider his First Amendment analysis in some detail, for it is at the level of concrete application that one can most clearly see what is at stake in the debate over constitutional theory.
Bork’s point of departure is the familiar conservative complaint that the Federal judiciary has exceeded its legitimate authority within our democratic system. His argument goes like this:
The Federal courts—above all, the Supreme Court— have usurped the legislative function. In the guise of interpreting broad constitutional language, judges have substituted their personal preferences for those of the majority as expressed in law. If such “judicial imperialism” is to be curbed, we must insist that judges decide constitutional cases in accordance with “neutral principles.” Those principles must be neutral not only in the sense of being defined in general terms and applied evenhandedly; they must also be neutral in derivation—that is, they must reflect the intentions of the framers of the Constitution insofar as those intentions can be inferred from the text, the history of its adoption and “their fair implications.” There is no place in constitutional adjudication for value judgments by the Court; its proper role, its only role, is to implement the value judgments of the Constitution’s framers. When the Court strikes down legislation on any other basis, it abuses its power and invades the domain of democratic choice.
In other words, where the text and the historical record do not unambiguously yield the meaning of a constitutional provision—and this will be true in varying degrees of all but the most specific provisions—the articulation of constitutional values is beyond the competence of the courts. The Constitution speaks of broad values like equality and liberty, but judges who attempt to give concrete meaning to such general concepts without clear and specific guidance from the text or history overstep their proper role:
There is no principled way in which anyone can define the spheres in which liberty is required and the spheres in which equality is required. These are matters of morality, of judgment, of prudence. They belong, therefore, to the political community.
Bork’s point is not simply that the farther judges move from the text, the greater the risk of error becomes. It is that they will inevitably err, will inevitably impose their own values: “Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other." [Emphasis added.]
Here we touch upon the source of the hard-edged clarity of Bork’s vision, the source of both its rhetorical power and its essential poverty—a moral skepticism so profound that it renders weightless everything in the Constitution that is not specifically nailed down. Bork rejects the possibility of moral knowledge; for him, all questions of value reduce down to matters of preference. That is the premise on which his approach to constitutional adjudication—and, presumably, to all moral and political questions—rests. Viewed through this prism, the only legitimate source of constitutional meaning is the framers’ intentions; any other line of inquiry into the meaning of a constitutional value can yield only an expression of the judge’s personal preferences.
In short, in Bork’s view, constitutional values have no independent reality apart from what can be gleaned from the text and the historical record, and they make no claims upon us. In a passing gibe at the Equal Protection Clause—the textual basis of the egalitarian legacy of the Warren Court and a primary target of his argument—he offers what he calls the “Equal Gratification Clause,” the principle that where the Constitution does not provide specific direction, there is no way “to decide that one man’s gratifications are more deserving of respect than another’s or that one form of gratification is more worthy than another.” In other words, some like equality, some like pistachio ice cream, and there is no principled way to distinguish between these “gratifications.”
If one grants Bork’s central premise, if one shares the nihilism that informs his approach, then his severe conclusions follow. If, however, one believes in the possibility of moral knowledge, if one believes that our understanding of constitutional values can be deepened by experience and advanced by moral inquiry, then one must reject his stance as profoundly illogical and intolerably wasteful. For it is precisely the most central constitutional values that, by virtue of their generality and scope, are rendered unsuitable for judicial enforcement and so are surrendered to the will of the majority. The net result of his argument is to convert broad public values into matters of private taste.
This perverse constitutional alchemy can be observed when Bork turns to the First Amendment. It becomes clear that what animates his approach is not his stated concern with “neutral principles” but his underlying moral skepticism. And its impact is devastating. In a world in which everything is a matter of taste, the only way he can see to practice fidelity to a constitutional provision—the only way he can see to guard it against misinterpretation—is to empty it of meaning.
Contemporary First Amendment doctrine—even its most ardent aficionados would concede—is messy. It is various and complex; it defies succinct summary. Bork’s thesis, by contrast, is the soul of simplicity and clarity:
Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.
One must pause to absorb the full import of those confident words. We are accustomed to thinking of First Amendment protection as a general rule subject to a few limited exceptions. But Bork asserts that government power to regulate expression should be the general rule, and constitutional protection the exception. Consider all that he would banish from the domain of the First Amendment: art, science, philosophy, literature—all expression, all communication between human beings, that is not “explicitly political.” And within that category he would deny protection to the advocacy of revolution and the violation of any law. In other words, the only speech courts may protect is that which is explicitly political in character and not too radical in its conclusions.
Bork arrives at this pinched and ungenerous reading of the First Amendment by way of a brisk exercise in the “neutral derivation” of constitutional meaning: Although neither the text of the amendment nor the history of its adoption provides much guidance as to its meaning, the governmental structure established by the Constitution does. Representative democracy is “a form of government that is meaningless without open and vigorous debate about officials and their policies.” Hence “even if there were no first amendment,” freedom for “explicitly political” speech “could and should be inferred.” And despite the fact that there is a First Amendment, no more can properly be inferred. The sole end served by the amendment, he argues, quoting a famous opinion of Justice Louis Brandeis, is the “discovery and spread of political truth.”
Few would dispute the proposition that the First Amendment protects political speech, but does that exhaust its meaning? Are there no other constitutional rationales for freedom of speech besides facilitating the democratic process? Bork insists there are not. The rationale for constitutional protection, he argues, must be unique to speech; otherwise, there is no neutral basis on which to protect speech but not to protect the various forms of conduct that serve the same ends. It follows that benefits often attributed to free speech—such as “the development of the faculties of the individual” and “the happiness to be derived from engaging in the activity”—do not provide acceptable rationales for First Amendment protection:
An individual may develop his faculties or derive pleasure from trading on the stock market, following his profession as a river port pilot, working as a barmaid, engaging in sexual activity, playing tennis, rigging prices or in any of thousands of other endeavors.
Thus, a judge “cannot, on neutral grounds, choose to protect speech that has only these functions more than he protects any other claimed freedom.”
This is sophistry. The fact that playing tennis and reading Shakespeare, rigging prices and writing a poem, all contribute to personal happiness and self-development does not mean that there is no constitutional basis for distinguishing between them. Indeed, the framers of the First Amendment made such a distinction when they explicitly and without qualification provided constitutional protection for speech as distinct from conduct. Such protection has traditionally been understood to reflect a perception that while speech may serve the same ends as various forms of conduct, it does so without generating the adverse effects that may attend other activities, and further that it is especially vulnerable to unwarranted suppression and hence in need of special protection.
Perhaps the First Amendment should be limited to speech that contributes to the political process, but it is hardly a sufficient argument for that proposition simply to reject other rationales for protection on the ground that they do not satisfy the artificial requirement that the ends served by the First Amendment be unique to speech. This requirement is little more than a logical trick. And one might well ask whether even the speech Bork would protect can really be said to satisfy it: Do not various forms of conduct convey political messages and thereby serve the same ends as political speech?
In any case, it is not necessary to assert other rationales for First Amendment protection in order to challenge Bork’s theory. It can be criticized on its own terms. Indeed, the really startling thing about the theory is how poorly it serves the sole function he ascribes to the First Amendment: protection of speech that contributes to the democratic process. In this respect, the theory confounds indignation: it is hard to know whether to be more disturbed by all that he is prepared to sacrifice in the name of democracy or by his insensitivity to the requirements of democracy. Perhaps both reactions amount to much the same thing. For his conception of democracy is dictated by his moral skepticism and is untouched by any other values or aspirations. It is a vision not of vigorous self-government but of blunt majoritarianism as the appropriate institutional response to a world in which all is preference.
As conceived by Bork, the great public debate under the First Amendment is a gray and impoverished affair. His theory would produce a bizarre divorce of political discourse from its social and cultural foundations. Many— perhaps most—political issues cannot be discussed fully and intelligently without drawing on other bodies of thought. The artistic, literary and scientific speech Bork would exclude from First Amendment protection is often integral to the debate over a public issue. Moreover, works of an artistic, literary or scientific character may inform our understanding of political matters and deepen the judgment we bring to our responsibilities as citizens.
It is instructive to contrast Bork’s theory with that of Alexander Meiklejohn, the great proponent of the principle that the First Amendment is intended to serve the ideal of self-government. There is an obvious kinship between their theories. Both derive the meaning of the First Amendment from its relationship to democratic government; both distinguish between speech that is concerned with public matters and speech that is not. Yet they reach widely divergent conclusions as to the scope of the First Amendment.
When Meiklejohn first articulated his theory in the late 1940s, it appeared that his category of “public”—and hence protected—speech was almost as narrow as Bork’s category of “explicitly political” speech. But in response to criticism that his theory left much speech of undeniable public value unprotected, he ultimately broadened the category of protected speech to include not only public discussion of public issues but also education, philosophy, science, literature and art. The people “need novels and dramas and paintings and poems,” he wrote, “because they will be called on to vote.” That concession may, as some have argued, have damaged the coherence of Meiklejohn’s theory. It also testified to his good sense.
Bork, by contrast, stands his ground. While acknowledging that “the publication of a novel like Ulysses” may contribute to the formation of “attitudes that ultimately affect politics,” he insists that there is no neutral basis under the First Amendment for a judge to distinguish between censorship of the novel and “regulations of economic activity, control of entry into a trade, laws about sexual behavior, marriage and the like,” for those activities too may contribute to the formation of political attitudes.
The upshot is that under his theory, speech that serves the function he ascribes to the First Amendment—speech that is political, albeit implicitly or indirectly—would be denied protection. Such speech may shape our perceptions of the world, of human nature, of political arrangements; it may touch our politics at the deepest level. Yet Bork would cede it to the domain of the censor in order to guard against the threat to democracy posed by allowing judges the latitude to distinguish under the First Amendment between, say, the suppression of King Lear and a restriction on the sale of underwater real estate.
At this juncture we can see one of the major ways in which Bork’s philosophy affects his approach in practice. Confronted by the need to define the scope of constitutionally protected activity—by the need to draw lines—he is compelled by his moral skepticism to do so in terms so narrow that they amount to a surrender of the particular activity to the will of the majority. Thus he can agree that a novel like Ulysses advances the ends of the First Amendment, but his moral skepticism prevents him from drawing a line that would protect it—a problem he resolves by excluding all literature from protection. This strange dynamic reaches its climax with his argument that advocacy of the violent overthrow of the government or of the violation of any law should be categorically excluded from First Amendment protection. Here, the speech he surrenders to censorship is not merely valuable within the terms of his theory; it is essential.
The keynote of his argument is a perverse misreading of the phrase he borrowed from Brandeis to describe the end served by the First Amendment: the “discovery and spread of political truth.” He turns classic free speech rhetoric inside out and defines “political truth” as “what the majority thinks it is at any given moment.” “It has no unchanging content,” he writes, “but refers to the temporary outcomes of the democratic process. Political truth is what the majority decides it wants today.” It follows that the advocacy of forcible overthrow of the government—speech which calls for a minority to seize control of the state—“is not political speech because it violates constitutional truths about process and because it is not aimed at a new definition of political truth by a legislative majority.” Hence there is no constitutional basis for judicial intervention to protect it. Similarly, the advocacy of the violation of any law falls outside the protection of the First Amendment because it is “a call to set aside the results that political speech has produced.”
Two basic issues are implicated in this tidy logical exercise. The first is posed by civil disobedience. Typically, the advocacy of this form of violating the law is an appeal to democratic processes, not a rejection of them. Bork does not address—or even acknowledge—the problems this creates for his argument. Under his theory, would a speech by Martin Luther King Jr. advocating sit-ins at segregated facilities have been denied the protection of the First Amendment? I am not sure that this is an intended implication of the theory, but there is nothing in the Indiana Law Journal article that bars such a reading.
Civil disobedience aside, the primary issue is posed by the advocacy of political doctrines that call for revolution or for the use of violence and lawlessness as political tactics. This has been the central issue of political speech in the American experience. It has elicited some of the most profound judicial reflections on the meaning of freedom of speech, and it has occasioned a series of cases, from World War I to the present, that provide rich material for understanding the dynamics of dissent in a free society.
Bork largely ignores that body of experience and analysis. Sweeping aside a half-century of doctrinal development, he argues that the law in this area should be built on two decisions of the 1920s—Gitlow v. New York and Whitney v. California—in which the Supreme Court upheld convictions for speech that in general terms and without evident effect advocated revolutionary action. Today these decisions are remembered chiefly because they prompted an eloquent dissenting opinion (Gitlow) and a concurrence in the spirit of dissent (Whitney) by Justices Oliver Wendell Holmes and Louis Brandeis on behalf of the proposition that speech may be constitutionally suppressed only if it produces “a clear and present danger” of law violation.
It is from those opinions rather than from the majority opinions that the law in this area has grown. Bork acknowledges their power. Holmes and Brandeis were, he writes, “rhetoricians of extraordinary potency, and their rhetoric retains the power, almost half a century later, to swamp analysis, to persuade, almost to command assent.” He does not, however, submit to that power. Had he sat on the Court in the 1920s, he would have joined the majority in holding that it is constitutional for a state to outlaw the advocacy of violent overthrow, no matter how general and remote from action such advocacy might be. Crisply dismissing the development of First Amendment doctrine since Gitlow and Whitney, he asserts that the majority opinions in those cases have never been “discredited, or even met, on intellectual grounds.” Intended to provoke, these words have their desired effect. Why, indeed, should we protect the advocacy of force and the violation of law?
The answer rests on a premise Bork claims to share, namely that “no society in which seditious libel, the criticism of public officials, is a crime can call itself free and democratic.” This principle has not always been securely anchored in American law; through much of our history the constitutional status of seditious libel was unsettled. It was only in 1964, in New York Times v. Sullivan, that the Supreme Court unequivocally declared that the abrasive criticism of government that in other times and places has been punished as seditious libel could not in America be made a crime. This follows, Justice William Brennan wrote for the unanimous Court, from “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”
Bork writes in similar, if less eloquent, terms. Indeed, he places this principle at the center of his theory. Yet he refuses to acknowledge its implications for the issue of subversive advocacy. He flatly declares such advocacy to be of “no political value within a republican system of government,” as though tile withdrawal of constitutional protection from this category of speech would have no implications for the speech that, by his own account, is essential to democracy: criticism of government officials and policies. But subversive advocacy does not take place in a vacuum; it occurs in a political context and is invariably part of a larger political critique. Thus, to draw the line beyond which such advocacy becomes criminal is also to determine the limits of permissible criticism of government. My father, Harry Kalven Jr., a legal scholar who wrote widely about the First Amendment, once framed the issue this way:
If a man is seriously enough at odds with the society to advocate violent overthrow, his speech has utility not because advocating violence is useful but because the premises underlying his call to action should be heard. He says something more than “Revolt, Revolt!” He advances premises in support of that conclusion. And those premises are worth protecting, for they are likely to incorporate serious and radical criticism of the society and the government. . . . [T]here is a fundamental tension between the principle that seditious libel cannot be proscribed by law and the common sense of stopping free speech at the boundary of incitement to crime. The accommodation between these two notions is perhaps the central issue for the American tradition of free speech.
By categorically excluding subversive advocacy from constitutional protection, Bork denies the existence of this problem—or, at any rate, denies that it falls within the province of the courts. His position is that such speech is somehow rendered unworthy of protection by the speaker’s hostility toward democracy. But he never explains why this should override our need as self-governing citizens to hear the speaker’s criticisms and to consider his or her arguments. Thus again, Bork’s theory, while invoking the democratic ideal, promotes a stunted view of the responsibilities and requirements of citizenship in a democracy.
The prevailing approach to subversive advocacy, which grows out of the Holmes-Brandeis dissents, has sought to reach an accommodation between the necessity of protecting radical criticism of the government and the claims of public order by drawing the constitutional line at the point at which advocacy merges with criminal action—the point beyond which the remedy of counter-speech is no longer available. The current standard, articulated in Brandenburg v. Ohio in 1969, is that the government may forbid the advocacy of force and lawlessness only “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The importance of this stringent standard resides not only in the protection it affords the most radical speech but also in the “breathing space” it provides for criticism of the government that stops well short of the line. Without such a secure margin, many potential critics would be silenced by fear and uncertainty. By drawing the boundaries of permissible advocacy at the last possible moment and with the greatest possible clarity, the Court has sought to insure a spacious forum for vigorous debate about public issues.
In Bork’s view, by contrast, it is the government that needs breathing space: it may constitutionally claim the power to silence the least whisper of sedition. That is the meaning of a passage from the majority opinion in Gitlow, which he quotes and endorses without qualification:
A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the state is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into conflagration . . . it may, in the exercise of its judgment, suppress the threatened danger in its incipiency.
Note the fragility of the political system evoked by that imagery. Surely a system so delicate cannot tolerate much free speech. Note too the boundless logic that supports the suppression of threats of disorder in their “incipiency.” If the political order is so vulnerable that all subversive advocacy must be prohibited, no matter how general and remote from action, no matter how deeply embedded in serious political criticism, then surely it is only prudent to take the next step and curtail abrasive criticism of the government that is not joined to explicit advocacy. After all, such speech is likely to breed disrespect and contempt, which may in turn lead to acts of resistance and lawlessness. And so on . . . Thus it is that in times of tension governments, if unrestrained, tend to read the threat of disorder and subversion into virtually all challenging criticism.
The constitutional standard set forth in Brandenburg is intended to restrain that tendency. But Bork insists that any such standard is “improper” because “it erects a barrier to legislative rule where none should exist.” The irony here, the ultimate absurdity of his argument, is that he sees an intolerable threat to democracy if judges are allowed to set standards to protect the speech he calls essential to democracy— criticism of government—but he apparently sees no danger to democracy if the task of defining the limits of tolerance for such criticism is left to the government officials criticized.
This then is where his theory comes to rest. Having radically reduced the scope of the First Amendment on the ground that it protects only explicitly political speech, he greatly restricts the ability of judges to intervene on behalf of the speech that nominally remains within its protection. His singular achievement is to have fashioned a theory of freedom of speech under which most of the speech men have historically been moved to suppress would be left exposed to the will of the majority. His argument completed, the First Amendment stands all but empty: a principle—a neutral principle—which would not be offended if the clamor of “uninhibited, robust, and wide-open” public debate about the myriad things that matter to human beings was drowned out, in Brandeis’s grim phrase, by “silence coerced by law.”
Bork closes the article in which he presents his blueprint for overhauling First Amendment doctrine by characterizing his arguments as “tentative and exploratory.” Dare we hope that Judge—and perhaps Justice—Bork will disavow the ideas advanced by Professor Bork? Is there a chance that he will prove susceptible to what my father used to call the “charisma” of the First Amendment—its power to recruit patient inquiry and generous interpretation from the judges charged with its protection?
Perhaps. But I doubt it. Bork’s views on the First Amendment are an expression of a general stance toward constitutional adjudication that is anything but “tentative and exploratory,” and that his every utterance about constitutional theory reaffirms. This stance is cast in the attractive idiom of neutral principles, but as I have tried to show, it is animated by a moral skepticism which is deeply alien to the way most Americans, including many conservatives, think about law, justice and the Constitution. Having seen the impact his approach would have on the First Amendment tradition, a relatively settled area of constitutional law, it is not hard to imagine how it would affect more controversial and fragile constitutional traditions. For as Bork’s First Amendment analysis shows, his deafness to the moral resonance of constitutional values leads inexorably to the triumph of majoritarianism over all else. It debases—trivializes—the Constitution. And it is a threat to our most basic freedoms.
"Robert Bork and the Constitution," The Nation, October 1, 1983.
Last fall in these pages I examined the constitutional philosophy of Robert H. Bork, a judge on the U.S. Court of Appeals for the District of Columbia who is widely thought to be destined for the Supreme Court should President Reagan be re-elected [see “Robert Bork and the Constitution,” October 1, 1983]. I took as my text a 1971 law review article in which Judge Bork—at the time a professor at Yale Law School— set forth his general approach to constitutional interpretation and then applied it to the First Amendment. He did not respond directly, but when an item about my article appeared in the December issue of the American Bar Association Journal, his response was swift and sharp. Apparently he was prepared to leave the readers of The Nation in a fog of uncorrected error about his views, but not the 340,000 lawyers who receive the A.B.A. Journal.
The offending item, titled “Here Comes Attila the Hun of the Constitution,” appeared in a column called “Browser,” which presents short, chatty summaries of recent articles thought to be of interest to the bar. Judge Bork’s reply, in the February issue [reprinted here with the A.B.A. Journal’s permission], began:
It is unfortunate that the Browser department . . . should choose to summarize my constitutional philosophy as presented in the Nation (not the New Republic as you suppose.* There is a difference.). The Nation piece, by Jamie Kalven, in turn purports to state my views entirely on the basis of a 13-year-old article. It is one thing for a column to digest articles from other publications in which a writer states his views. It is quite another to repeat, without checking, what another writer reports to be the views of a third person. The Browser piece commits that journalistic sin and then compounds it by adding its own Attila-the-Hun characterization to what Mr. Kalven actually wrote. Perhaps your writer thinks the matter humorous, but a number of readers are likely to suppose that reporting contained in the official publication of the American Bar Association would be accurate.
I sympathize. The column collapses a long, complex argument into a few paragraphs. It imparts to that argument a somewhat ad hominem flavor. And the title is deplorable: it is not only insulting to Judge Bork; it misses the point of my article. Bork is dangerous not because he is some sort of wild man. He is dangerous because he is a persuasive champion of an approach to constitutional adjudication that is powerfully coherent, appeals to common sense and would, in practice, largely empty various central constitutional values of judicially enforceable meaning.
To see clearly the perverse dynamic that underlies the surface plausibility of Bork’s theory, it is necessary to engage his ideas at the level of application. That is why Bork’s “Neutral Principles and Some First Amendment Problems,” in the Fall 1971 Indiana Law Journal, is of such interest. This “13-year-old article” remains his central statement on constitutional law. Often cited by his admirers, it is part of the canon of right-wing constitutional scholarship. Most important, it offers his account of what the approach would mean in practice for one highly valued constitutional tradition.
The article’s thesis is that the proper role of judges is to decide cases in light of ‘‘neutral principles’’ that reflect the intentions of the framers of the Constitution insofar as those intentions can be inferred from the text, the history of its adoption and “their fair implications.” When judges go beyond those sources in interpreting a constitutional provision, argues Bork, they have only their personal preferences to guide them. And in a democracy, it is intolerable that the preferences of judges should exercise a veto over the preferences of the majority.
Applied to the First Amendment, Bork’s mode of interpretation yields the principle that the amendment’s sole function is to protect speech that contributes to democracy. He proceeds from that premise to a set of startlingly narrow conclusions: First Amendment protection should be limited to “explicitly political” speech; there is no constitutional basis for protecting any other form of expression; and within the category of political speech there should be no constitutional bar to the suppression of “any speech that advocates forcible overthrow of the government or the violation of any law.”
In his A.B.A. Journal reply, Judge Bork, having dealt with the ‘‘Browser,’’ turns to my analysis of his First Amendment theory:
As it happens, Jamie Kalven’s summary of my views is both out of date and seriously mistaken. I do not think, for example, that First Amendment protection should apply only to speech that is explicitly political. Even in 1971, I stated that my views were tentative and based on an attempt to apply Prof. Herbert Wechsler’s concept of neutral principles. As the result of the responses of scholars to my article, I have long since concluded that many other forms of discourse, such as moral and scientific debate, are central to democratic government and deserve protection. I have repeatedly stated this position in my classes. I continue to think that obscenity and pornography do not fit this rationale for protection.
It is good news indeed that Judge Bork has in some respects broadened his view of the scope of the First Amendment. But how was one outside the halls of Yale Law School to know? Surely it is beyond the pale of civilized discourse to answer one’s critics by implying that they cut class!
The fact is that the 1971 article remains the central statement of his First Amendment views. So far as I have been able to determine, he has published nothing prior to his A.B.A. Journal reply that in any way disavows or revises it. Moreover, in the course of my research last year, I informed Judge Bork, via one of his law clerks, that I was working on an article on the First Amendment theory he advanced in 1971, and requested copies of two more recent statements by him which had not yet been published: a lecture on the First Amendment delivered in 1979 at the University of Michigan Law School, and an essay that was to appear in a forthcoming book on the role of the judiciary in America. His clerk wrote back, explaining why I could not see either piece and adding: “On behalf of Judge Bork, I am sorry that we could not assist you more in your First Amendment study. I hope that the pieces Judge Bork has already published on the subject will suffice for your work.” But his published work on the First Amendment is the 1971 article; there is virtually nothing else. Thus, notified that a study of his First Amendment views was in the works, Judge Bork, in effect, referred me to the article he now characterizes as “out of date.” Under the circumstances, I find it hard to accept his implication that it was somehow underhanded of me to take seriously what he wrote in 1971.
There is perhaps a lesson here about the risk one runs in a society committed to uninhibited, robust and wide-open debate when one does not publicly respond to criticism of ideas one has urged on one’s fellow citizens. In any case, had Judge Bork at any time over the last thirteen years publicly acknowledged that he had been moved by “the responses of scholars” to revise his First Amendment theory, I certainly would not have misreported his current views on the constitutional status of nonpolitical forms of speech, such as moral and scientific debate.
In the interest of avoiding any further misunderstandings and embarrassments, I would like to ask Judge Bork which portions of the First Amendment theory he advanced in 1971 he still stands by. Are we to understand that he continues to subscribe to that which he does not explicitly disavow in his A.B.A. Journal reply? Specifically, is artistic expression—literature, art, film, etc.—embraced within the “many other forms of discourse, such as moral and scientific debate,” that he now believes the First Amendment ought to protect? Or does he perhaps find it necessary to exclude all artistic expression from protection in order to get at “obscenity and pornography”?
And what are his current views on speech that advocates forcible overthrow of the government or violation of the law? In 1971 he argued that all such advocacy, no matter how general or remote from criminal action, could constitutionally be suppressed. To my mind, this is the most dangerous part of his theory, and a substantial part of my article was devoted to refuting it. Yet his A.B.A. Journal reply fails to mention the point. How are we to interpret that silence?
The closing, and most heated, passage in Judge Bork’s reply is addressed to my use of the term “moral skepticism” to characterize the premise underlying his approach to constitutional adjudication:
More serious, however, is the wholly fallacious statement [by Mr. Kalven] that my view of neutral principles in constitutional adjudication is “animated by moral skepticism.” Here, the Journal is betrayed by Mr. Kalven’s unaccountable inability to understand what he reads. I believe in moral values and moral choice, and I, in common with the vast majority of men and women, live my life that way. It is absurd that an irresponsible allegation should require me to state that. My article argues that a judge has no means of demonstrating that his moral views about forms of human gratification are superior to the views of others. For that reason, a judge has no warrant, where the Constitution is silent, to force his morality upon a legislature that has made a different moral assessment. To suggest, on the basis of that argument, that I reject the “possibility of moral knowledge” is nonsense, and vicious nonsense at that.
Your writer obviously did not take the necessary 30 minutes to look at my article or the necessary five minutes to call me. He should have. It is no light matter to make public assertions about another person’s moral views. It is astounding that the Journal, of all publications, should display such a light-hearted disregard for truth and reputation.
Judge Bork has defended himself against an allegation I never made. He appears to have been moved to do so by a misunderstanding of the term “moral skepticism.” The term as I used it referred not to his character but to his philosophical assumptions. I did not mean to imply that he is amoral or unprincipled or without personal scruples. Moral skepticism is not skepticism about morality. It refers, rather, to the philosophical position that there is no way to demonstrate the correctness—or, for that matter, the wrongness—of particular moral judgments. That is what I understand Judge Bork to be saying, albeit in a rather opaque way, when he writes, “A judge has no means of demonstrating that his moral views about forms of human gratification are superior to the views of others.”
It follows, he argues, that “a judge has no warrant, where the Constitution is silent, to force his morality upon a legislature that had made a different moral assessment.” But the issue is not what to do when the Constitution is silent. It is what to do when the Constitution speaks loudly and distinctly but in broad generalities: equal protection, due process, cruel and unusual punishment, freedom of speech and so on.
In the name of fidelity to the Constitution, Judge Bork would, in effect, bar judges from undertaking the interpretive effort that such broad provisions, by their nature, demand. Constitutional values, he insists, are enforceable by the courts only to the extent that the text and legislative history yield clear and specific guidance as to their meaning. Beyond that they are matters of preference, of taste, and as such should be left to the political process. Because the more open-ended the provisions, the less specific and unambiguous is the guidance afforded by the text and history, the effect of Bork’s approach would be largely to surrender various central constitutional values to the will of the majority.
Argument at this level of generality takes one only so far. My point is that the clarity of Bork’s vision is less the product of what he sees than of what he does not see. Something essential is missing. I have called that absence “moral skepticism”; perhaps another name would be more apt. In any case, it is at the level of particulars that the absence becomes palpable—nowhere more so than in his treatment, in the 1971 article, of the issue posed by advocacy of forcible overthrow of the government or violation of the law.
Central to First Amendment doctrine is the principle that seditious libel, the criticism of government, cannot be made a crime. Given this premise, which Bork says he accepts, government efforts to suppress advocacy of force and of law violation pose an issue that goes to the heart of the First Amendment. For the call to criminal action does not stand alone; it is typically part of a larger political critique. Hence, to set the boundaries of permissible advocacy is to delineate the point beyond which advocacy may be constitutionally suppressed.
It has fallen to the judiciary, as the institutional guardian of First Amendment freedoms, to decide when the government may legally suppress advocacy. The best known device for this purpose has been the “clear and present danger’’ test; and the current standard, articulated in Brandenburg v. Ohio in 1969, is “incitement to imminent lawless action.” Whatever the precise phrasing of the legal formula, a consensus has emerged in American law about the underlying principle: our constitutional commitment to vigorous and unrestrained debate of public issues demands the maximum protection for subversive advocacy consistent with public order.
This is not a theoretical matter. It is an insight born of experience. We can fix with some precision the cost in political freedom and the constriction of public debate that result when courts cede to government the power to suppress all such advocacy. We know that in times of stress the government tends to construe dissent as subversion and to punish seditious libel under the name of illegal advocacy. That is the lesson bequeathed by the series of decisions handed down during and immediately after World War I, in which the Supreme Court held that advocacy of force and lawbreaking could be suppressed without regard to its proximity to criminal action. And it is a lesson that was renewed and enlarged by the decisions of the 1950s—decisions like Dennis v. United States (1951) which affirmed the convictions under the Smith Act of Communist Party leaders for, in effect, conspiring to organize a political party for the purpose of advocating revolution at some future time.
The tradition of freedom of political speech we enjoy today issues from a repudiation of those decisions—from a deep, widely shared sense that they were fundamentally at odds with the First Amendment, that they were wrong. Judge Bork, writing in 1971, does not share this view. The advocacy of force and of law violation, he writes, “has no political value within a republican system of government.” He expresses agreement with the majority opinion in Gitlow v. New York (1925), the culminating decision in the World War I era series of cases. And his only complaint about Dennis appears to be that in justifying its decision, the Court felt compelled to restate the clear-and-present-danger test in such a way as to eliminate its stringency, thereby bringing the teaching of Marxist doctrine within its terms. In his view, the proper course would have been to dispense with the test altogether, since any such standard “erects a barrier to legislative rule where none should exist.”
Thus a theory that starts from the premise that the First Amendment’s purpose is to protect the essential democratic freedom to criticize government ends by leaving the task of defining the limits of permissible criticism to the government officials criticized. This is an absurd outcome—a telling illustration of the general tendency of Bork’s approach, in defiance of both logic and experience, to subordinate essential constitutional values to the preferences of the majority.
But, then, perhaps the passage of time and “the responses of scholars” have moved him to change his mind. What, I wonder, has Professor Bork been telling his students in recent years about the issue posed by the advocacy of force and of law violation? And what, given the opportunity, will Judge—perhaps Justice—Bork tell us all about the extent of our freedom to criticize our government and to dissent from its policies?
* The A.B.A. Journal had cited The New Republic rather than The Nation.
"Round Two for Judge Bork," The Nation, June 16, 1984.
Supporters of Supreme Court nominee Robert Bork are making a concerted effort to portray him as an open-minded moderate. Toward that end, they make much of his views on the First Amendment. His work in this area, they say, shows that he is more sensitive to civil liberties and less ideologically rigid than his critics suggest. They acknowledge that he advanced an extremely narrow interpretation of the First Amendment in a 1971 article in the Indiana Law Journal but argue that his more recent pronouncements, seen against that background, testify to his capacity for intellectual growth. The press has, for the most part, accepted those claims uncritically. The Senate Judiciary Committee should not, for this portrait of Bork as a champion of First Amendment values has virtually no basis in fact. On examination it proves to be based on nothing more than a single concurring opinion and an ambiguous, self-serving reply to criticisms published in these pages.
In the October 1, 1983, issue of The Nation, I analyzed Bork’s 1971 article to show what his general approach to the Constitution would mean for one highly valued tradition. When the American Bar Association Journal ran an item about my article under the memorable title “Here Comes Attila the Hun of the Constitution,” Bork responded angrily. His reply, published in the A.B.A. Journal, was at once heated and carefully crafted. In tone it seemed to disavow the 1971 article, implying that I had been somehow unfair to take seriously what he had written thirteen years earlier; in fact it conceded very little. On June 16, 1984, in a second article in The Nation, I posed the questions that his reply had left unanswered. Bork did not respond directly. He did, however, address First Amendment themes in another forum.
While the Nation/A.B.A. Journal exchange was in progress, the United States Court of Appeals for the District of Columbia Circuit, on which Bork sits, heard arguments in Ollman v. Evans and Novak, a libel case. Some months later it ruled that the statements at issue were protected under the First Amendment. Bork took the occasion to file a concurring opinion, in which he expressed concern about the rising incidence of libel suits against the press. He wrote eloquently about the necessarily rough-and-tumble character of political discourse in a free society and offered some thoughts on how libel law might best be developed. The opinion is lucid and helpful. It is not, as some of his supporters would have us believe, the Magna Carta.
It would be ungenerous to dismiss the Ollman opinion as merely an attempt by Bork to counter the image of himself— broadcast to 340,000 lawyers by the official publication of the organized bar—as a menace to the free speech tradition. It would be equally inappropriate, however, to disregard the timing and surrounding circumstances of the opinion. For this is just one of many instances that have stirred suspicions as to whether Bork’s actions are dictated by principle or by strategic considerations arising from his campaign for a seat on the Supreme Court. As they review his career and writings, the senators who will vote on Bork’s nomination must take care not to misread opportunism as evidence of an open mind.
Nor should they be deluded into thinking the Ollman opinion a significant departure from Bork’s earlier philosophy. On the contrary, it is wholly consistent with the First Amendment theory he advanced in 1971. At the heart of that theory is the idea, associated with the landmark libel decision in New York Times v. Sullivan, that the central meaning of the First Amendment resides in the protection of the public debate essential to democracy. So far so good. But he proceeds from that premise to the harshly narrow conclusions that First Amendment protection should be limited to “political speech” and that there should be no constitutional impediment to the suppression of speech that “advocates forcible overthrow of the government or the violation of any law.”
Neither Bork’s A.B.A. Journal reply to my article nor his opinion in Ollman discloses to what extent and in what respects he continues to subscribe to that theory. The Senate Judiciary Committee should question him closely about this. There are several lines of inquiry:
§ In the A.B.A. Journal, Bork stated that he no longer takes the view that First Amendment protection is limited to political speech: “I have long since concluded that many other forms of discourse, such as moral and scientific debate, are central to democratic government and deserve protection.” The phrasing of this apparent recantation is unnerving. What about literature and art? Do they fall within those “other forms of discourse”? On what basis would he distinguish the nonpolitical speech he would protect from that which he would not?
§ Bork would deny constitutional protection to speech that advocates the violation of any law. Does that include advocacy of civil disobedience? Under his theory would it have been constitutional for Alabama to jail the Rev. Martin Luther King Jr. for giving a speech urging sit-ins at segregated facilities?
§ Bork’s A.B.A. Journal reply was silent on the issue posed by the advocacy of forcible overthrow of the government, although my article had sharply challenged his views on this question. The issue is central to political freedom. Such advocacy is typically part of a larger political critique. Hence to draw the boundaries of permissible advocacy is also to determine the limits of permissible criticism. Starting with the elaboration of the “clear and present danger” test by Justices Oliver Wendell Holmes and Louis Brandeis in the years following World War I, the Supreme Court has strived to fashion constitutional standards that allow for the fullest possible protection of political criticism while curbing advocacy as it approaches the threshold of criminal action. In 1971 Bork curtly dismissed that line of doctrinal development. Does he still regard the clear and present danger test as an unwarranted judicial invasion of the legislative domain? Does he still believe that the development of First Amendment doctrine should have stopped with Gitlow v. New York, a case decided in 1925 and long since repudiated, in which the Court held that legislatures should be free to suppress any advocacy of force or the violation of law, no matter how deeply embedded in political criticism, no matter how general and remote from action? (The senators might present Bork with the speech at issue in Gitlow—a pamphlet about which Justice Holmes, dissenting, tartly observed, “Whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration”—and ask him if he would allow it to be suppressed today.) Does he remain prepared to argue that the purpose he discerns in the First Amendment—protection of the political criticism essential to democracy——is best served when the task of determining the outer limits of acceptable criticism is left to the majority and to the government officials criticized?
Inquiry into Bork’s First Amendment views has significance beyond the obvious importance of the freedoms at stake. This is the ground his supporters have chosen in their efforts to soften his image. Once the mirage of Bork as an ardent guardian of the First Amendment is dispelled, the pattern underlying his position on various constitutional issues emerges with harsh clarity. It is a pattern of unrelenting hostility to the entire enterprise of judicial review for the purpose of protecting individual and minority rights. When Bork and his supporters use the words “judicial restraint” to describe this orientation, they defame an honorable tradition. To reject the Bork nomination is not to reject that tradition. It is to reject a radical program fundamentally at odds with the way most Americans, conservatives as well as liberals, think about law, justice and the Constitution.
"Bork v. The First," The Nation, September 19, 1987.