Bork Reconsidered, Part II

3601327017_cf29db46c31In an earlier post, I compared the nominations of Judge Sonia Sotomayor and Judge Robert Bork in order to make some observations about the role of stare decisis and its relationship to judicial activism.  My argument was that a respect for the wisdom of past practice and a preference for incremental change will allow Judge Sotomayor to avoid being tagged as a radical jurist unworthy of confirmation.  In contrast, Judge Bork had a record that left him vulnerable to such a charge (even if unwarranted).  Also worthy of mention here is Professor David Papke’s earlier recollection of Professor Bork in the classroom.

In the discussion that follows, I will continue to use the Sotomayor/ Bork comparison in order to draw out the manner in which the Supreme Court’s interpretation of the Second Amendment threatens to undermine the very philosophy of constitutional interpretation that is most closely associated with Judge Bork.

Opponents of the Sotomayor nomination have seized on the Second Amendment as an issue with which to attack her.  Portraying her as an opponent of the constitutional right to own firearms is a strategy that will certainly succeed in energizing the base of the Republican Party.  If she rises to the bait during her confirmation hearings, and expresses any skepticism over the correctness of the District of Columbia v. Heller case – striking down the DC handgun ban– then efforts to paint her as a liberal jurist who is out of the mainstream might gain some traction with the public.

Certainly there are grounds to criticize the textualist reading of the Second Amendment endorsed by the Heller majority.  In the course of finding that the Constitution prohibits the federal government from banning handguns, Justice Scalia applies the modern, colloquial usage of the phrases “bear arms” and “keep arms” in order to conclude that the text of the Second Amendment guarantees a right to own handguns for personal use.  He also chooses to interpret the operative clause of the Second Amendment independently of the prefatory clause in the first instance, and only later reintroduces the prefatory clause into the analysis in order to determine whether it forecloses his chosen interpretation of the rest of the Amendment.

Although Justice Scalia denies it, the meaning of the phrase “bear arms” did possess a distinctive meaning in the 18th century that differs from the way in which the phrase is commonly used today.  The phrase was applied to the military use of weaponry and was derived from its Latin roots (arma ferre) describing the “equipment of war.”  Justice Scalia’s method of interpreting the text also ignores the Style Periodique used by the drafters of many formal 18th century documents (i.e., Thomas Jefferson in the Declaration of Independence), whereby a series of linked propositions gradually reveals the full meaning of a sentence at its conclusion.  In other words, it is likely that the meaning that Justice Scalia ascribes to the words of the text was not in fact the original intent of the drafters of the Second Amendment.  The Heller opinion is strong evidence that textualism is not a reliable technique for divining original intent.

Indeed, more than twenty years ago Judge Bork asserted that the originalist interpretation of the Second Amendment was limited to the protection of formal state militias as a counterweight against a standing federal army.  Many forget that the National Rifle Association was critical of Judge Bork during his confirmation hearings for this very reason.  I do not know whether Judge Bork has subsequently modified his views on the matter.  My assumption is that Judge Sotomayor is wise enough to avoid any direct criticism of the Heller opinion during her confirmation hearings.

However, Judge Sotomayor will undoubtedly be questioned closely about her ruling in the Second Circuit case of Maloney v. Cuomo.  The issue there was whether the Heller opinion guaranteeing an individual right of gun possession applies to state and local governments as well as to the federal government.  In other words, does the 14th Amendment “incorporate” the Second Amendment and apply it to the states despite the fact that the original Bill of Rights only applied to the federal government?  In Maloney, Judge Sotomayor sat on a three judge panel that refused to read the Heller decision to in any way limit state gun control laws.

Opponents of Judge Sotomayor would like to use this ruling as evidence that she is hostile towards gun rights.  Unfortunately, the underlying premise of such an attack is that the Heller opinion gives circuit court judges carte blanche to overturn hundreds of years of Supreme Court precedent.  A long line of Supreme Court cases rejects the wholesale incorporation of the Bill of Rights against the states via the 14th Amendment (The Slaughter House cases) and also upholds state laws restricting gun ownership (Cruikshank, Presser and Miller).  As Judge Easterbrook of the Seventh Circuit noted — in the course of oral arguments in a case where he ultimately adopted the same reasoning as the Maloney panel– the decision to depart from such established precedent is “above [a circuit judge’s] pay level.”  The issue of the incorporation of the Second Amendment against the states may come before the Supreme Court as early as next year.

Interestingly, the Robert Bork of twenty years ago might well agree with the reasoning of the Maloney decision.  As a law professor, Judge Bork wrote in opposition to the application of the Bill of Rights to the states, and he was very critical of the manner in which the Supreme Court “incorporated” the Bill of Rights through the Fourteenth Amendment’s right of due process.  In fact, his originalist theory of constitutional interpretation appears incompatible with both the Heller majority’s modern reading of a time-specific phrase and with the push to read the Second Amendment as a limit on state power.

As a Supreme Court Justice, Judge Sotomayor will not be shackled by precedent to the same extent as a circuit judge.  Therefore, she will face pointed questioning on her views of the Second Amendment and the incorporation debate.  My prediction is that if she is confirmed she will confound her critics and vote to apply the rights recognized in the Heller decision against state and local governments.

After all, the Heller opinion interprets the Constitution in a way that every liberal should love.  The case can be read to support the proposition that the individual rights expressed in the Constitution should be interpreted expansively in order to reflect current realities.  Nowhere did the Heller majority pause to consider whether the individual Second Amendment right that it found in the text applied specifically to automatic weapons, armor piercing ammunition, or any of the other modern aspects of “firearms” that were unknown in 1789.  Instead, Justice Scalia’s opinion attaches the right to bear arms generally to the kinds of weapons “typically possessed by law-abiding citizens for lawful purposes.”  Of course, the weapons that met this criteria in 1789 differ from the weapons that met this criteria in 1939, when the Court upheld the federal regulation of shotguns, which might very well differ form the types of weapons that meet this criteria today.  This fact suggests that once a right is located in the original text it continues to attach and respond to evolving societal circumstances.  Therefore, Justice Scalia’s treatment of individual rights under the Second Amendment contrasts with other instances where he has expressed doubt that the scope of conduct protected by the Constitution can evolve.

If we take an acceptance of evolving individual rights and add the additional confirmation that state and local governments are necessarily precluded from restricting these evolving rights to the same extent as the federal government, the result is some of the strongest rights-based jurisprudence of recent years.  I doubt that any of this would trouble a Justice Sotomayor.  On the other hand, a Justice Bork might have difficulty accepting such a result.

The Heller opinion provides a test case of what happens when conservative theories of constitutional interpretation come into conflict with culturally conservative values.  During his career as a scholar and a judge, Robert Bork made it clear that if forced to choose between the two he would choose the former.  His consistency of thought over his long career fed into the popular conception of Judge Bork as a jurist that placed fidelity to theory ahead of the real world consequences of his judicial rulings.  After all, the public wants to see a little pragmatism in its judges, just not too much pragmatism.  But Judge Bork’s place in the conservative canon has become somewhat ambiguous some two decades after his nomination battle.  Despite his continued iconic status as a symbol of conservative thought, the power brokers in today’s conservative political movement place a primacy on cultural values over theoretical consistency.

This focus on cultural conservatism has had unintended consequences for the political right.  I would contend that the litigation strategy of the National Rifle Association has done more to expand the protection of individual rights under the Constitution over the past few years than the strategy of the American Civil Liberties Union.  Paradoxically, the success of cultural conservatives in achieving their objectives on the issue of the right to bear arms has come at the expense of undermining the intellectual foundation of Judge Bork’s judicial philosophy.

This Post Has 5 Comments

  1. Richard M. Esenberg

    I don’t want to get into Heller, but I am not so sure that Scalia’s approach there is necessarily inconsistent with his stated method of interpretation or with the projects of textualism or originalism generally.

    There is not one “conservative” approach to originalism and conservative theories of constitutional interpretation do not always rule out the evolution of the scope of constitutional rights. To the extent that conservatives criticize Judge Bork (and they do even as his place in the pantheon is secure), the critique is not necessarily about the results he reaches.

    For Scalia, of course, the roadmap is the text. He is, in fact, famously dismissive of attempts to discern the framers intent. The text, he says, should be construed neither strictly nor narrowly but fairly. This may mean applying it in circumstances that could not have been contemplated by the framers, i.e., the application of the Fourth Amendment to electronic eavesdropping.

    Scalia’s view means that the text may be read expansively. In fact, he has argued that, in the constitutional context, it ought to be – but only if the language fairly bears the proposed interpretation.

    But textual exegesis may require consideration of the context in which it was adopted and what it meant to those who adopted it and, by doing so, gave it the force of law. This is where originalism may come in but there is not one originalism either. One approach is to discern the original public expected application. That seems to have been Bork’s approach, but, of course, there may be no answer to that question.

    Another is to ascertain a more general understanding of the original public meaning, perhaps even by asking what a reasonably informed adopter would have had to have endorsed in light of the context, debate, etc., at the time of adoption. This may be more faithful to the idea that the interpretive process is concerned with giving effect to the political decison represented by the adoption of a constitutional provision.

    Of course, depending on the generality with which you define the original principle, the latter approach can become indistinct from the construction of a Living Constitution. I’d argue that, where “conservatives” and “liberals” split is not on whether constitutional interpretation may be affected by changed circumstance, but on whether changed circumstances can alter this original public meaning or justify departure from whatever limitations might be found in the text.


  2. Ed Fallone

    The central tenet of originalism is that the Constitution “has a fixed meaning ascertainable through the usual devices familiar to those learned in the law.” Antonin Scalia, “Originalism: The Lesser Evil,” 57 U. CINN. L. REV. 849, 854 (1989); see also ANTONIN SCALIA, A MATTER OF INTERPRETATION 40 (1997) (“One would suppose that the rule that a text does not change would apply a fortiori to a constitution.”). Textualism is the interpretive process by which the language of the text is used to ascertain this original meaning in contrast to other possible sources such as legislative history or historical debate.

    The asserted advantage of textualism is that it can be applied in an objective fashion that limits the ability of judges to read their own preferences into the Constitution, whether intentionally or unintentionally. The Heller opinion demonstrates conclusively that textualism can be abused by a judge in order to arrive at a desired outcome just as easily as the selective application of legislative history can be abused. That should not come as a surprise to anyone. What is novel in the Heller opinion is the idea that the “original” meaning of the Second Amendment can be defined in a way that incorporates the continued evolution of this meaning into the future. We are all “activists” now.

  3. Richard M. Esenberg

    If we read a little bit further in A Matter of Intepretation, Scalia says, in his response to Professor Tribe, that:

    It is simply a caricature of originalism to portray it as narrow and hidebound — as ascribing to the Constitution a listing of rights “in highly particularistic rule-like terms.” I take many things to be embraced within “the freedom of speech,” for example, that were not in fact protected, because they did not exist in 1791 — movies, radio, television and computers, to mention only a few. The originalist must often seek to apply that earlier age’s understanding of the various freedom to new laws and to new phenomena that did not exist at the time.

    So, in Scalia’s view (if not in Bork’s), it is not critical whether the adopters of the second amendment would have thought it applicable to “to automatic weapons, armor piercing ammunition, or any of the other modern aspects of ‘firearms’ that were unknown in 1789.” Of course, they could not have.

    But the constitutional principle that they adopted, Scalia endeavors to show, was that persons had a right to keep weapons commonly used for self defense in service of the need to form a militia. If those weapons are different in 1939 or 2009 than in 1789, application of the constitutional principle requires that they be included just as the First Amendment ought to apply to television and movies.

    In Scalia’s view, this is different than varying the meaning of the principle to be applied in light of new circumstances, e.g., concluding that, in modern society, individuals ought not to be carrying guns either because it is more dangerous or because we really “don’t need” a militia anymore. It is different than methods that permit us to conclude that laws which were properly found to be constitutional in the past have “become” unconstitutional today (as opposed to today’s recognition that yesterday’s decision was in error.)

    In his view, the meaning has not evolved but has simply been applied to a new set of circumstances. Of course, Scalia may have read the text improperly. I take it that you think he did.

    He conceded, however, that the textualist can also put her thumb on the scale, but argues that, because she is responding to a more circumscribed set of questions, she is less likely to do so. To the dismay of many cultural conservatives and the NRA, Scalia’s discernment of the meaning of the Second Amendment seems to allow – or so he suggests -rather significant restrictions (e.g., bans on concealed carry) on this individual right. That seems to cut against a reading of Heller as nothing more than – or even primarily – an affirmation of conservative cultural values in disregard of the author’s preferred interpretive methods.

    I do agree, however, that there is often a conflict between the litigation strategies of conservative advocacy groups (although I tend to think of the Institute for Justice which is not much interested in cultural issues) and the interpretive methods that most, but not all, conservatives and libertarians favor. I’d be interested in hearing your argument about the NRA in greater detail sometime.

  4. Ed Fallone

    Rick, your perspective is helpful in fleshing out what one might call the “many colors of originalism.” I do not disagree with the distinctions that you draw between Judge Bork and Justice Scalia. Let me try to further explicate my reconsideration of Judge Bork as the legal thinker most closely associated with originalism. Then maybe we will see whether anyone else is reading our exchange or whether we would be better off having this discussion over a couple of pints at Hegarty’s.

    I understand “originalism” to refer to a method of constitutional interpretation that begins with the assumption that most clauses of the Constitution had a clear and ascertainable meaning at the time of the document’s inception. Acceptance of this assumption leads to the conclusion that questions of law and governance should be decided in accord with the original meaning of the text, and that other sources of meaning removed from the text such as precedent and modern social attitudes should not be used if they result in moving the meaning of the words away from their source. A preference for the original meaning of the text is justified by the view that only the original meaning is a pure expression of the popular sovereignty of “the people” who ratified the Constitution, and thus the original meaning is properly given greater authority than the interpretation of the text by a limited pool of judges or by an amorphous and evolving public opinion (neither of which are a legitimate expression of the sovereign will of the people).

    Judge Robert Bork’s technique for ascertaining this original meaning was, in my view, based on three propositions.

    The first proposition was that the meaning of the text was fixed at the time of its drafting and does not change.

    The second proposition is that if this fixed text fails to specifically address a value then a judge has no basis for choosing to advance that value or not; in such cases the choice between competing values must be left to the legislature.

    The third proposition is the normative declaration that all other methods of constitutional interpretation are illegitimate (In a speech to the Federalist Society the same year as his nomination, Bork declared, “An originalist judge would have no problem whatever in overruling a non-originalist precedent because that precedent, by the very basis of his judicial philosophy, has no legitimacy.”).

    I do not agree with these three propositions, but I will admit that they come together into a coherent theory. My difficulty with the various other strands of originalism that have been advanced by other thinkers (including Justice Scalia) is that they seem to seek to replace Judge Bork’s second proposition with something different whilst maintaining his first and third propositions. I don’t know if this is possible.

    Some of the alternative techniques advanced as a means of defining original meaning in the context of modern life seem to me to turn the question of whether the text is “fixed” at the time of its drafting into a semantic game. And if the line between activism and strict construction can get a little bit blurry at times, is the third proposition still defensible? Judge Bork persists in the American mind as a symbol, but to me the Heller decision demonstrates that his particular version of originalism has little contemporary appeal. However in my opinion, alternative expressions of originalism lack the coherence of Judge Bork’s theory.

  5. Richard M. Esenberg

    Well, I think the line between activism (I try to avoid that term) and what I prefer to call judicial modesty is blurry and, while I would not call it a semantic game, there is a way in which defining the terms in the text at a sufficiently high level of generality darn near eliminates it. But let me see if I can address those three points which are helpful.

    Originalists do endorse something like the first principle. For textualists, what controls is the constitutional language and can control, I think, without regard to what the adopters intended. It may be, for example, that the framers of the 14th amendment didn’t really mean it when they adopted an unqualified command of equal protection, but that’s what they did.

    But text is often ambiguous or we have to apply it to a new situation. Originalists think judges ought to be bound by the original public meaning, i.e., what principle does it make sense to conclude that the framers enacted? It is that principle that ought to be applied and it doesn’t change.

    So, it seems to me, Scalia would not disagree with the second point. In his view, the text does address uncontemplated circumstances or unspecified applications by setting forth a principle that can be applied. Thus, Scalia says, the First Amendment – although it mentions only speech and press – may apply to handwritten letters (unspecified) and to television and computers (uncontemplated). Speech and press, he argues, “stand as sort of a synecdoche for the whole.”

    I appreciate that this allows room for judgment. It means that people will disagree on what the constitution requires. It provides room for a judge’s political preferences (and even empathy!) to enter the process. Scalia acknowledges that.

    But I don’t think that gives the game away. That it is difficult to ascertain the original public meaning does not mean that a method that calls for one to do so is not distinct from methods that permit evolution based on some extratextual principle or some sense of what we “need” today. To say that an interpretive method has elements of subjectivity and requires choices does not mean that we ought to throw off the tethers.

    As for the third point, don’t all interpretive methods make normative claims? But I stop over the term “illegitimate.” Of course, legitimacy in the sense of the proper scope of judicial authority is the issue. We (of course I mean Nino and I!)argue that a judge needs a source of authority outside of himself that is imbued with the authority of law. We think some variation of textualism and originalism is the best way to do it.

    My problem with using “illegitimate” to describe other methods is that many – but not all (see. e.g., whatever Douglas thought he was doing) – are attempts to serve that end (i.e., rooting judges in sources of legitimated authority) in other ways. (See, e.g., Breyer’s idea of active liberty)

    I don’t think they work. I think they result in too much judicial discretion and there is, often, nothing to legtimate the principle claimed to guide constitutional evolution.

    But often the differences are matters of degree, albeit significant degree. But does it help to call them illegitimate?

    This is one of the reasons I like to avoid the term “activist.” It means something but it has come to mean too many things.

    But I am thinking everyone else has gone to Hegarty’s. Smart.

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