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
September 17, 1982
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.