1 The term “Modern Court” is used to describe the many Supreme Courts that have decided cases since the New Deal revolution finally took hold of constitutional doctrine. The era of the Modern Court began with the shift away from the Lochner Court's active review of laws regulating the economy and commerce. See, e.g., West Coast Hotel Co. v. Parish, 300 U.S. 379 (1937); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942). At the same time the Court began to lay the foundation for more active protection of individual rights and judicial scrutiny of whether “prejudice against discrete and insular minorities” may systematically infect otherwise democratic processes. United States v. Carolene Products Co., 300 U.S. 144, 152–53 n. 4 (1938).Google Scholar

2 To be sure, Bronner also includes more detailed (and revealing) accounts of political maneuvering, lapses of political judgment and rhetoric, debates about the meaning of constitutional provisions and cases, lobbying, and strategy on both sides (and infighting within sides), and tales of what went on inside the Senate Judiciary Committee and outside on the street of public opinion.Google Scholar

3 To be sure, Bork also includes more detailed (and revealing) accounts of his position on a wide variety of constitutional issues, philosophies of judging, the tensions between majority rule and judicial review under the Constitution, and his decision to stay the course of his confirmation struggle all the way through to his ultimate rejection by the full Senate and beyond.Google Scholar

4 At the time Justice Powell announced his retirement, however, the nine sitting justices included seven appointed by relatively conservative Republican presidents. Republican presidents had also appointed more than 75% of all federal judges then sitting. These hard numbers apparently did not enter into Bork's political calculus.Google Scholar

5 See Paul Dimond, The Supreme Court and Judicial Choice: The Role of Provisional Review in a Democracy (Ann Arbor: University of Michigan Press, 1989) (“Dimond, Supreme Court”).CrossRefGoogle Scholar

6 Even assuming that this theory of the original understanding can be fairly implemented in practice, it remains “a curiously undemocratic notion.” The historic reality is that the original Constitution and most of its important amendments were framed and ratified by representatives elected by a small minority of the people: “until well into the twentieth century, suffrage was effectively limited to a relatively few, privileged white males. The vast majority of the people never had the opportunity to consent to the Constitution as any kind of social contract binding on themselves, let alone future generations.” To the extent the original understanding limits the discretion of the people's elected legislatures to respond to today's needs and tomorrow's imperatives through legislation, it is therefore a fundamentally undemocratic hand from the past that limits majority rule today. See Dimond, Supreme Court 6. For purposes of evaluating whether Bork's theory resolves the Madisonian dilemma on his own terms, this essay assumes that the original understanding poses no such conflict with representative democracy.Google Scholar

7 See, e.g., Bork at 81–82, 144; and Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings Before the Committee on the Judiciary, U.S. Senate, 100th Cong., 1st sess., 817–19 (1987) (“Hearings”).Google Scholar

8 17 US. 316 (1819).Google Scholar

9 Bork at 271; Hearings at 335–36.Google Scholar

10 See, e.g., G. Gunther, Constitutional Law 83–87 (Mineola, N.Y.: Foundation Press, 1985).Google Scholar

11 17 US. at 407–11.Google Scholar

12 Id. at 423.Google Scholar

13 In Marshall's famous words, “Let the end be legitimate, let it be within the scope of [the powers enumerated in the] Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” 17 U.S. at 421. Under this standard, Congress has the discretion to legislate so long as the means it employs are rationally related to ends within the wide scope of any of its enumerated powers as broadly implied. The Modern Court has applied this rational basis standard so as to impose no judicially enforceable limits from the enumeration of congressional powers in article I. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 241 U.S. 241, 258 (1964).Google Scholar

14 Thus, any conceivable state sovereignty limit on congressional power would have to depend on a fair construction of the constitutional document as a “whole.” McCulloch, 17 U.S. at 406.Google Scholar

15 Id. at 435.Google Scholar

16 Id. at 425–37.Google Scholar

17 See generally Dimond, Supreme Court 61–66 (cited in note 5).Google Scholar

18 Compare, e.g., R. Berger, Federalism: The Founders' Design (Norman: University of Oklahma Press, 1987), with J. M. Balkin, “Constitutional Interpretation and the Problem of History,” 63 N.Y.U.L Rev. 911 (1987), and H. J. Powell, “The Modern Understanding of Original Intent,” 54 U. Chi L Rev. 1513 (1987).Google Scholar

19 Bork at 27; Hearings at 336 (cited in note 7).Google Scholar

20 22 U.S. 1 (1824). See Bork at 27. Bork's first criticism is directed at Marshall's suggestion that the Court as a neutral national forum might provisionally strike down a state regulation restricting the Court's understanding of the national interest in the absence of any directly conflicting congressional legislation. See text at notes 16–17 supra. Bork's second criticism is that the Gibbons Court stretched beyond the legislative intent to interpret a federal statute as conflicting with the challenged state regulation, which must then fall under the supremacy clause of article VI. Unmentioned by Bork is that if the people who live in the states disagree with the Court's resolution, they remain free to legislate a different result through their representatives in Congress.Google Scholar

21 Hearings at 148, 465, 722.Google Scholar

22 The “political neutrality” of the Lochner Court's embrace of Bork's original understanding of federalism is, of course, doubtful. At the same time that the Lochner Court was holding that certain types of laws regulating the economy and social welfare were beyond the enumerated powers of Congress (and, hence, should be left to the states for decision), the Court was also holding that the very same types of laws enacted by the states were unconstitutional because they violated the liberty of business to contract under a substantive reading of the due process clause. See, e.g., Lochner v. New York, 198 U.S. 45 (1905). The combined result was to prevent Congress and the states from passing laws regulating the economy and social welfare that the Lochner Court felt were “unreasonable.”Google Scholar

23 Hearings at 148.Google Scholar

24 Hearings at 829.Google Scholar

25 But see text at 205 supra, quoting Bork at 5.Google Scholar

26 Robert H. Bork, “Neutral Principles and Some First Amendment Problems,” 47 Ind. L.J. 1 (1971). Prior to this conversion, Bork had written more as a libertarian in arguing that any governmental regulation (including prohibition of segregation in public accommodations) that conflicted with the political philosophy of free association was wrong. See, e.g., Robert Bork, “Civil Rights—a Challenge,” 149 New Republic 21 (1963); Robert Bork, “The Supreme Court Needs New Philosophy,”Fortune, Dec. 1968, at 138; Hearings at 151–52.Google Scholar

27 Hearings at 131.Google Scholar

28 Brandenburg v. Ohio, 395 U.S. 444 (1969).Google Scholar

29 Hearings at 430, 432; Bork at 335.Google Scholar

30 Compare Hearings at 430, 749–50, and Bork at 248–49 with Cohen v. California, 403 U.S. 15 (1971), and Hess v. Indiana, 414 U.S. 105 (1973).Google Scholar

31 Hearings at 424 and 327.Google Scholar

32 R. Berger, Government by Judiciary (Cambridge, Mass.: Harvard University Press, 1977).Google Scholar

33 J. ten Broek, The Anti-Slavery Origins of the Fourteenth Amendment (Berkeley: University of California Press, 1951); H. J. Graham, “The Early Anti-Slavery Background of the Fourteenth Amendment,” 1950 Wis. L Rev. 479, 610.Google Scholar

34 A. Bickel, The Least Dangerous Branch (Indianapolis: Bobb's-Merrill, 1962) (“Bickel, Least Dangerous Branch”); A. Bickel, “The Original Understanding and the Segregation Decision,” 69 Harv L Rev. 1 (1955); Dimond, Supreme Court (cited in note 5); P. Dimond, “Strict Construction and Judicial Review of Racial Discrimination Under the Equal Protection Clause,” 80 Mich. L Rev. 462 (1982); John Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980) (“Ely, Democracy”); Charles Fairman, “The Attack on the Segregation Cases,” 83 Harv. L Rev. 83 (1956).Google Scholar

35 Compare Plessy v. Ferguson, 163 U.S. 537 (1896), with Brown v. Board of Education, 347 U.S. 483 (1954).Google Scholar

36 Compare Bradwell v. Illinois, 83 U.S. 130 (1873), with Reed v. Reed, 404 U.S. 71 (1971), and Frontiero v. Richardson, 411 U.S.677 (1973).Google Scholar

37 Compare The Civil Rights Cases, 109 U.S. 3 (1883), with Fullilove v. Klutznick, 448 U.S. 448 (1980).Google Scholar

38 Bork, 47 Ind L.J. (cited in note 26).Google Scholar

39 Bork at 330; Hearings at 132–33, 254–55, 332–33, 395, 435, 703 (cited in note 7).Google Scholar

40 Bork at 75–76; Hearings at 132, 286. As noted, however, others who have reviewed the historical evidence find that the original understanding intended to leave the segregation issue open for decision in the future through interpretation of the Fourteenth Amendment. See note 34 supra. Google Scholar

41 Bork at 81–83; Hearings at 132, 286.Google Scholar

42 Bork at 329; Hearings at 161.Google Scholar

43 Bork at 329–30; Hearings at 160–61, 330, 393, 436.Google Scholar

44 See, e.g., the Freedmen's Bureau Act, the Military Reconstruction Act, and the 1875 Civil Rights Act.Google Scholar

45 Bork hints that he earlier thought that affirmative action “might be all right” during a “transition period” until an outcast minority group had been brought “into the mainstream of American life.”Hearings at 261. His change of view echoes the Court's words in the Civil Rights Cases, 109 U.S. 3, 17 (1883), in holding the 1875 Civil Rights Act unconstitutional and signaling the end of the first Reconstruction: there must come a time when the freedman “who has emerged from slavery … takes the rank of mere citizen and ceases to be the special favorite of the laws.”Google Scholar

46 Hearings at 316–17; also at 116–19, 250. Compare Poe v. Ullman, 367 U.S. 497, 522, 539–45 (1961) (Harlan, J., dissenting), Griswold v. Connecticut, 381 U.S. 479, 524–25 (1965) (Harlan, J., concurring).Google Scholar

47 Hearings at 700–703, 705–6. Indeed, Bork appears to concede that his entire “reasonable basis” test is really an attempt to make some sense out of settled judge-made law concerning the development of equal protection doctrine that may have little if anything to do with the original understanding. Hearings at 436. (Whether the original understanding of the Fourteenth Amendment is general and open-ended or the judge-made law interpreting the equal protection clause is as open-ended as Bork's “reasonable basis” test or the “three-tier” approach sometimes invoked by the Burger Court, there are alternatives that try to focus the conscientious judge's analysis on what constitutes wrongful discrimination. See, e.g., Dimond, Supreme Court 46–51, 82–85, 105–17, 122–23, 126–28; P. Dimond, “The Anti-Caste Principle,” 30 Wayne L Rev. 1 (1983); Ely, Democracy (cited in note 34). This focus serves to limit the judge's discretion and to cabin judicial lawmaking. The inquiry is not into what groups the Court chooses to single out for protection but what groups the elected majority in any decision-making body has itself chosen, out of invidious prejudice against the group identified, to single out for abuse or disregard. This anti-caste principle provides an alternative approach that focuses the judicial inquiry (a) into the sort of wrong that gave rise to the equal protection clause in the first place and (b) on the invidious discrimination that, as our history has shown, may so infect our elective institutions that majority faction can be fairly said to have taken over for representative democracy. Interestingly, Bork himself suggests that such a representation-reinforcing view may be read into the guarantee clause of article IV to invalidate state legislatures so systematically malapportioned that majorities are fenced out of the representative process and they have no opportunity to remedy the resulting undemocratic mess. Hearings at 156–57; Bork at 85–86.)Google Scholar

48 Bork at 9; Hearings at 267, 386 (cited in note 7).Google Scholar

49 Hearings at 104–5, 132–33, 161, 316, 402.Google Scholar

50 For purposes of analysis only, I assume in this section that the open-ended invitation that Bork has made of equal protection doctrine (see text at notes 32–47 supra) doesn't provide the same roving commission for judges to make substantive rights law.Google Scholar

51 Bork at 31–32, 36–37, 39, 60, 95–100, 179–85, 230–40; Hearings at 114–15, 130, 249, 287, 321–22, 712, 715–18, 820.Google Scholar

52 Hearings at 130, 447.Google Scholar

53 Id; Bork at 39, 181, 185.Google Scholar

54 Hearings at 718.Google Scholar

55 347 U.S. 497 (1954).Google Scholar

56 Bork at 83; Hearings at 284. Judge Bork testified, however, that he had come to accept his understanding of this reverse incorporation of the equal protection clause into the due process clause of the Fifth Amendment as a matter of settled judicial lawmaking. Hearings at 351, 405.Google Scholar

57 Hearings at 287. See also Bork at 83–84.Google Scholar

58 323 US. 214 (1943).Google Scholar

59 Hearings at 314.Google Scholar

60 See Dimond, Supreme Court 83–85, 92.Google Scholar

61 See note 32 supra. Google Scholar

62 See note 33 supra. Cf. M. K. Curtis, “The Bill of Rights as a Limitation on State Authority,” 16 Wake Forest L Rev. 45 (1980) (incorporation of Bill of Rights).Google Scholar

63 See note 34 supra, and Charles Fairman, Reconstruction and Reunion, pt. 1 (New York: Macmillan, 1971) (“Fairman, Reconstruction pt. 1”); pt. 2 (New York: Macmillan, 1987) (“Fairman, Reconstruction pt. 2”).Google Scholar

64 See Dimond, Supreme Court, and Dimond, 80 Mich. L Rev. (cited in note 34).Google Scholar

65 Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” 2 Stan. L Rev. 5 (1949).Google Scholar

66 Fairman, Reconstruction pt. 1 at 1297.Google Scholar

67 Id. at 1388. After 16 years of further immersion in the study of the Fourteenth Amendment and the Reconstruction Court, Fairman offers this original understanding of the privileges or immunities clause as another way of rethinking why the Civil Rights Cases 109 U.S. 3 1883), were wrongly decided, as well as using this understanding to support the right to travel under Justice Jackson's concurring opinion in Edwards v. California, 314 U.S. 160, 171 (1941). Fairman, Reconstruction pt. 2 at 566–67, 586–87.Google Scholar

68 In the same vein, Bork later recites (at 166), “That clause has been a mystery since its adoption and in consequence has, quite properly, remained a dead letter.”Google Scholar

69 83 U.S. 76 (1873).Google Scholar

70 Bork, however, recommends bringing other, far longer “dormant” clauses of the Constitution to life to decide hard cases when he wants. Cf. Bork at 85–86 (resurrecting guarantee clause of article IV to decide reapportionment cases). In contrast to what appear to be Judge Bork's manipulation of the original understanding to avoid having to face the real Madisonian dilemma if the Constitution authorizes the Court to declare substantive rights limits on majority rule, John Ely honestly addresses the issue. See Ely, Democracy 23–41 (cited in note 34). Ely (at 41) contends that the Court, as a matter of its own judicial choice, should restrain itself from any such forays until an approach to open-ended judicial review of substantive rights can be developed “that is not hopelessly inconsistent with our nation's commitment to representative democracy.”Google Scholar

71 See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).Google Scholar

72 See note 1 supra; Bruce Ackerman, “Transformative Appointments,” 101 Harv L Rev. 1164 (1988).CrossRefGoogle Scholar

73 See, e.g., Bork, 47 Ind. L. J. (cited in note 26); speeches (Catholic University, 31 Mar. 1982; Yale University, 24 April 1982; Harvard Law School, 15 Sept. 1983; University of Chicago, 13 Nov. 1984; Canisius College, 8 Oct. 1985; Attorney General's Conference, 24–26 Jan. 1986).Google Scholar

74 Hearings at 152–54, 194–236, 360–62, 647–48 (cited in note 7).Google Scholar

75 Id. at 280–83.Google Scholar

76 Id. at 94–97.Google Scholar

77 Id at 103–5.Google Scholar

78 Id at 131, 327, 424, 430, 432, 749–59.Google Scholar

79 Id at 132–33, 160–61, 254–55, 316, 332–33, 393, 395, 435–36, 703.Google Scholar

80 Id at 253–55, 261, 330, 332.Google Scholar

81 Id at 284, 287.Google Scholar

82 Id at 116–19, 250, 316.Google Scholar

83 Id at 160–61, 330, 393–96, 436.Google Scholar

84 Id at 148, 829.Google Scholar

85 Id at 829.Google Scholar

86 Id at 714–16.Google Scholar

87 Id at 114–15, 118, 184, 287, 321–23, 712, 715–21.Google Scholar

88 Id. at 447.Google Scholar

89 Id.Google Scholar

90 Id. at 185, 753–54.Google Scholar

91 Bork's testimony before the Senate Judiciary Committee was reasoned and, in most respects, remarkably restrained with respect to political commentary, particularly when compared with the impassioned cultural critique that pervades his book. At his confirmation hearings, Bork did his level best, consistent with his stated constitutional positions and philosophy, to avoid the appearance of being the pivotal person who President Reagan nominated with the express purpose of remaking the Modern Court into a new Court with a more conservative bent. Unfortunately for Judge Bork, the president set the stage for hearing and deciding this apparently climactic controversy in the Senate and in the nation. On this stage, once it became evident that the original understanding did not compel the particular path to decision chosen by Judge Bork in a variety of types of cases, any pretense of political neutrality in the president's nomination fell. The Bork nomination then turned into a largely symbolic referendum on whether the Senate preferred the basic thrust of the Modern Court or that of a new Court envisioned by the president.Google Scholar

92 Compare Henry Monaghan, “The Confirmation Process: Law or Politics,” 101 Harv. L Rev. 1202 (1988), with Ackerman, 101 Harv. L Rev. (cited in note 72).Google Scholar

93 Ackerman, 101 Harv. L. Rev; Monaghan, 101 Harv L Rev. Google Scholar

94 To fill this gap, Ackerman, 101 Harv. L Rev. at 1180–84, proposes a constitutional amendment which would empower the president to request that Congress consider enacting a type of national referendum for the people to vote on the choice(s) made by the Supreme Court in interpreting the Constitution.Google Scholar

95 Bork at 36–68; Hearings at 148, 465, 722 (cited in note 7).Google Scholar

96 Bork at 75–76, 81–83; Hearings at 132, 286. See Dimond, Supreme Court 31–36 (cited in note 5).Google Scholar

97 See Derrick Bell, “Brown v. Board of Education and the Interest-Convergence Dilemma,” 93 Harv. L. Rev. 518 (1980).CrossRefGoogle Scholar

98 Compare Debs v. United States, 249 U.S. 21 (1919), with Brandenburg v. Ohio, 395 U.S. 444 (1969); Hess v. Indiana, 414 U.S. 105 (1973); and Cohen v. California, 403 U.S. 15 (1971).Google Scholar

99 See Jeb Rubenfeld, “The Right to Privacy,” 102 Harv L Rev. 737, 791 (1989).Google Scholar

100 See L. Tribe, American Constitutional Law 1308 (Mineola, N.Y.: Foundation Press, 1988) (“Tribe, American Constitutional Law”).Google Scholar

101 Compare Roe v. Wade, 410 U.S. 113 (1973), with Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989). See also Walter Dellinger & Eugene Sperling, “Abortion and the Supreme Court: The Retreat from Roe v. Wade,” 138 U. Pa. L. Rev. 83 (1990).Google Scholar

102 See, e.g., Hearings at 188–89 (cited in note 7); Bickel, Least Dangerous Branch (cited in note 34); Dimond, Supreme Court 84–87 (cited in note 5); Ely, Democracy 131–34 (cited in note 34); Tribe, American Constitutional Law 178–89, 323, 365–66, 1677–87.Google Scholar

103 See text at notes 11–25.Google Scholar

104 See, e.g., L. Fisher, Constitutional Dialogues: Interpretation as Political Process (Princeton, N.J.: Princeton University Press, 1988); Henry Monaghan, “Constitutional Common Law,” 89 Harv. L. Rev. 1 (1985); Sandalow, “Judicial Protection of Minorities,” 75 Mich. L Rev. 1162, 1187–90 (1977); Wellington, “The Nature of Judicial Review,” 91 Yale L.J. 486, 504–20 (1982), and Book Review, 97 Ham L Rev. 323, 335 (1983); Dimond, Supreme Court 11–20, 153–56.Google Scholar

105 W. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 187 (Cambridge, Mass.: Harvard University Press, 1988); Boric at 75–76; Hearings at 132, 286.Google Scholar

106 Plessy v. Ferguson, 163 U.S. 537, 551 1896). The Court proceeded to heap racial insult on top of this hypocrisy: the plaintiff's “argument necessarily assumes that if, as it has been more than once the case, and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption.”Id. Google Scholar

107 Plessy v. Ferguson, 163 U.S. at 559 (Harlan, J., dissenting).Google Scholar

108 Giles v. Harris, 189 U.S. 475 (1903). See Dimond, 30 Wayne L Rev. at 18–20 (cited in note 47).Google Scholar

109 See Eugene Sperling, “Judicial Right Declaration and Entrenched Discrimination,” 94 Yale L.J. 1743 (1985).CrossRefGoogle Scholar

110 Dred Scott v. Sandford, 60 U.S. 393 (1856). The Court did not have to reach out to declare the act of Congress unconstitutional: earlier in its opinion, it had already ruled that Dred Scott, like all other blacks whether slave or free, was not even to be deemed a person under the Constitution and therefore had no right to sue for his freedom in federal court at all.Google Scholar

111 See Dimond, Supreme Court at 8, 73–74.Google Scholar

112 See Dimond, Supreme Court. Google Scholar

113 See, e.g., Robert Abrams & P. Dimond, “Toward a Constitutional Framework for the Control of State Court Jurisdiction,” 69 Minn. L Rev. 75, 85–95 (1984); C. Black, Structure and Relationship in Constitutional Law 13–20 ((Baton Rouge: Louisiana State University Press, 1984); J. Choper, Judicial Review and the National Political Process 205–9 (Chicago: University of Chicago Press, 1980); Dimond, Supreme Court; Herbert Wechsler, “The Political Safeguards of Federalism,” 54 Colum. L. Rev. 543 (1954).Google Scholar

114 See text supra at notes 8–25.Google Scholar

115 Compare Robert Summers, ‘Two Types of Substantive Reasons: The Core of a Theory of Common Law Justification,” 63 Cornell L. Rev. 707 (1978), and G. Calabresi, A Common Law for the Age of Statutes (Cambridge, Mass.: Harvard University Press, 1982), with Fairman, Reconstruction pt. 2 at 1388 (cited in note 63) (quoted supra, text at note 67); and Poe v. Ullman, 367 U.S. 497, 522, 539–45 (1961) (Harlan, J., dissenting).Google Scholar

116 See Dimond, Supreme Court. Google Scholar

117 See Ely, Democracy (cited in note 34); and Dimond, Supreme Court. Google Scholar

118 See Dimond, Supreme Court 80–156. Let there be no mistake, however; this largely process-oriented approach to judicial review of national action leaves the new Court with final authority to protect the rights guaranteed by the Bill of Rights, including, for example, free speech and the right of each person to be free from caste subordination at the hands of a hostile majority faction in Congress. If anything, the greater focus thereby provided to the Court's final authority might enable the new Court to be more protective of these basic democratic values than any earlier court, regardless of the pressures or hysteria rampant across the land at any given moment. See Ely, Democracy, and Dimond, Supreme Court. Google Scholar

119 See Dimond, Supreme Court 119–52. Let there also be no mistake here either: The provisional nature of this review of state acts under the privileges or immunities clause need not reduce the scope of the substantive rights addressed by the new Court. Liberated from the fear of finality of its rulings in these areas, the new Court might raise even more crucial substantive rights to the forefront of the national conscience for resolution by the people. What it means to be a member of this nation's community in the years ahead is an issue to which each new generation must address itself, building upon the traditions of the past to meet the challenges of the future.Google Scholar