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.