Everyone ascending the steps of the National Archives building sees these words chiseled in stone: “Eternal Vigilance is the Price of Liberty.” No one was more vigilant than Judge Robert Bork, who passed away in December, in courageously defending principles that make our liberty possible.
In 1968, then a Yale law professor, Bork wrote in Fortune magazine that the Supreme Court was becoming a political institution, its decisions increasingly based on the Justices’ personal sympathies rather than on neutral and objective principles. If the Supreme Court is not controlled “by principles exterior to the tastes of the Justices,” he argued, it “is merely a superlegislature.” Three years later, he wrote that “a legitimate Court must be controlled by principles exterior to the will of the Justices.”
The Supreme Court, after all, was interpreting the Constitution and deciding cases based on the Justices’ own views, tastes, and will. In the 1930s and 1940s, for example, the Court expanded federal government power by changing the meaning of the power to regulate interstate commerce. Writing in 1953, Justice Robert Jackson described the “widely held belief” that the Supreme Court decides cases based not on “impersonal rules of law” but “personal impressions which from time to time may be shared by a majority of Justices.” In the 1960s, when Bork began his teaching career, the Court turned its attention to restricting state government power by creating new individual rights that were not in the Constitution but which suited the Justices’ personal impressions.
Bork’s effort over the next several decades to challenge this trend was both traditional and controversial. It was traditional because he merely channeled America’s founders. George Washington said in his 1796 farewell address that the heart of our form of government is the people’s authority to control the Constitution. Letting judges control its meaning, Thomas Jefferson wrote, would turn the Constitution into a “mere thing of wax…which they may twist and shape into any form they please.” The “legitimate Constitution,” James Madison argued, has the meaning it was given by those who created it.
Bork said the very same thing. “A Court that makes rather than implements value choices,” he wrote in 1971, “cannot be squared with the presuppositions of a democratic society.” If the people did not put a fundamental value in the Constitution, judges have no authority to put it there. This was controversial only because many Americans and their leaders, as well as most law professors and lawyers, had either abandoned this principle or never learned it in the first place.
In his 1968 Fortune article, Bork warned that if the Supreme Court continued on its political path, it would be “attacked and beaten on political grounds.” Two decades later, Bork himself was attacked and beaten on political grounds when the Senate rejected his Supreme Court nomination. I said at his confirmation hearing that if judges “base their decisions on political criteria,” the process for selecting them will be based on “political rather than legal criteria.”
The anti-Bork forces opposed much more than one-man’s nomination. They opposed then, and oppose today, letting the American people govern ourselves. In December 1989, I reviewed for National Review Bork’s book “The Tempting of America: The Political Seduction of the Law.” That book, I wrote, addressed “the central legal question of our time: Are we to be governed by our elected representatives…or by an unelected judiciary.”
Thankfully, though he left the bench, Bork continued teaching Americans about our liberty and how to keep it. During 15 years as a scholar at the American Enterprise Institute and another decade back in the law school classroom, he published law journal articles on the judge’s role in law and culture, Congress’ power to regulate commerce, and technological innovation. He wrote for broader audiences through dozens of op-ed pieces on legal, cultural, and political topics. And his books are still coming, with his memoir “Saving Justice” expected in May.
Bork warned in 1971 that judges must not be free to make up their own principles, to impose their own value choices or their own will. Two years later, in Roe v. Wade, the Supreme Court did just that in order to legalize abortion on demand. The Court simply could not reach that result by any principle found in the Constitution, and so they did so by politics they found outside the Constitution. The essence of judicial activism is the political ends dictating the judicial means, and the inevitable result of judicial activism is the death of liberty itself. When judges govern us by controlling our Constitution, we are no longer free.
Bork’s professional life was a class example of people attacking the messenger because they cannot respond to the message. There simply is no legitimate case for judges controlling the Constitution that they have sworn to follow. But he knew that, as James Madison said in his 1810 State of the Union Address that “a well-instructed people alone can be permanently a free people.” To the very end of his life, Robert Bork taught us all about what our liberty cannot live without.
Senator Orrin G. Hatch is a former chairman of the Senate Judiciary Committee and has served on that committee since 1977.