Robert Bork at Heritage / Photo by Andrew Blasko
Former judge Robert Bork delivered the first lecture in Heritage’s Joseph Story Distinguished Lecture series that is a part of a larger 10-year initiative started by the Center for Legal and Judicial Studies to bring back judicial restraint and the rule of law.
The title of Bork’s lecture was aptly named, “A Republic — If You Can Keep It.” It was taken from a quote by Benjamin Franklin when asked what the Founding Fathers were giving to the American people when drafting the Constitution. He correctly asserted that the republic is contingent, not guaranteed. Bork contended the courts are a great threat to keeping the republic. Instead of interpreting law on the basis of the principles set forth in the Constitution, judges interject their own morality and political beliefs in their arguments.
Despite being nowhere in the Constitution, and its dubious beginnings, judicial review has become not only widely accepted, but also widely expected. Imagining a court without it is impossible. With it, the court assumes much greater power than it was ever intended to have. In Federalist Paper 78, Alexander Hamilton states:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.
Now, nine justices (often split 5-to-4) instantly make the executive, legislative and all the state governments irrelevant. When Canada was drafting its constitution, Bork stated, they wanted to avoid the “American Disease” of judicial review. However, Bork pointed out, Canada soon found out it was a judicial disease. Bork said an originalist view of the Constitution is the only way to interpret it without eroding the Rule of Law. Originalism is interpreting the Constitution the way the framers intended it to be. It is also called “original intent.”
Since 1965 and the Griswold v. Connecticut case, the Supreme Court has been very actively interpreting the Constitution to fit its own morals. There has never been legal, or Constitutional, backing for Roe v. Wade and there never will be. Justice Harry Blackmun agreed with Roe and used the newfound right of privacy that the court found in the 14th Amendment.
This creates a slippery-slope of arguments and morality. The Supreme Court has become an agent of change that reflects only the morality of the intellectual elite. Bork referred to these people as “Olympians.” They reside on “Mount Olympus” and grant us their knowledge and impose it upon us if necessary. The court was never meant to be an agent of change, and that much power in the hands of nine unelected people with lifetime terms is extremely dangerous and not found anywhere in the Constitution. Bork ended with a quote from Justice Antonin Scalia:
The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.
