Robert Bork's reckless majoritarianism

By TIBOR R. MACHAN
Freedom News Service

Judge Robert Bork is known to many Americans because back in the presidency of Ronald Reagan he was nominated by "the great communicator" to the Supreme Court, then rejected on controversial grounds by the Senate Judiciary Committee, which at that time was ruled by Liberal Democrats. They didn’t like some of his published opinions, which isn’t supposed to be a reason for such a decision.
In his recent book, "Coercing Virtue: The Worldwide Rule of Judges" (American Enterprise Institute, 2003), Bork argues that there's no support whatsoever in the Constitution for striking down numerous pieces of legislation on the spurious thesis that the doctrine of judicial review – made prominent in an early Supreme Court decision, Maybury v. Madison (1803) – authorizes the Court to invalidate legislation other than by reference to explicitly stated provisions of the Constitution.Thus, it is OK to rule that a law aimed at establishing a state church or censorship of the press is unconstitutional. That is because the First Amendment states explicitly that Congress may not make laws like that.
But, Bork argues, when the Court ruled, in Lochner v. New York (1905), that legislatures may not make laws regulating the hours of bakers, it overstepped its authority.
Although Robert Bork is considered to be a conservative, he approves neither liberal nor conservative judicial activism. The Lochner decision, which is now famous mainly for the dissenting opinion by Justice Oliver Wendell Holmes Jr., was a form of the latter. The recent ruling striking down a Texas anti-homosexual sodomy law was, Bork argues, an example of the former.
On a recent appearance on American Enterprise Institute co-fellow Ben Wattenberg’s television program "Think Tank," Judge Bork summarized his position and received a bit of resistance from the host, although not enough, and that is too bad. Although Bork’s book is worth a read, most folks probably won't buy it and try to wade through its various twists and turns of legal argumentation.
One point Wattenberg should have made but did not in response to Judge Bork is an important one and could be raised to seriously challenge Bork’s very restricted conception of constitutionality. The Constitution does lay out, quite explicitly, various prohibitions on the federal legislature, Congress, and on first inspection may appear to fully support Bork’s view that what courts have been doing since Maybury v. Madison has indeed been to block legislation in an imperial fashion – meaning without proper judicial authority. For example, in the Texas homosexual sodomy case, as in others such as Roe v. Wade, which affirmed the constitutional right to abortion before the 27th week of pregnancy, the court claimed there is a right of privacy in the Constitution. Bork vigorously disputes this.
Yet, the "forgotten" Ninth Amendment states clearly, unambiguously, that there are rights not enumerated in the Constitution that are retained by the people. Contrary to Bork, it is by no means a stretch to argue that, especially in light of the Declaration of Independence's statement that we have the unalienable right to liberty (a statement that at least helps to gloss the Ninth Amendment), free men and women ought not to be coerced to behave as majorities want them to behave. Sure, this doesn't accord with Judge Bork's conservative views, nor with his view of how the Constitution must be read, namely by paying attention only to explicit bans on legislatures. However, resistance to Judge Bork's claim could well be based on the Ninth Amendment, combined with the philosophical message of the Declaration, a message that could well inform Justices as they attempt to understand the Ninth.
More generally, we could pose the question to Judge Bork and his supporters: "Why is it OK for majorities and legislatures to coerce virtue but not OK for Justices, with their own version of legal clout, to restrain majorities? Didn't James Madison and other Founders of our republic caution us about the tyranny of majorities? And aren’t courts just those bodies that are supposed to make sure legislatures do not become tyrannies or lynch mobs that run roughshod over our rights?"

Tibor Machan is a professor of business ethics and Western Civilization at Chapman University in Orange, Calif., and author of "The Passion for Liberty" (Rowman & Littlefield). He advises Freedom Communications, parent company of this newspaper. E-mail him at Machan@chapman.edu