ROBERT'S RULES OF ORDER: A Conversation with Robert Bork

today on uncommon knowledge Bork on the court funding for this program is provided by the John M Olin foundation welcome to uncommon knowledge I'm Peter Robinson our show today how an originalist understands the Constitution of the United States a conversation with Robert Bork it is often said that there are fundamentally two competing schools for interpreting the United States Constitution one school believes that the meaning of the document must be allowed to evolve over time the other school insists by contrast that the only correct way of interpreting the Constitution is according to the original intent of the framers themselves Robert Bork as you'll see is a champion of the second school Robert Bork has taught law at Yale University served as Solicitor General of the United States and served as a United States Court of Appeals judge he was nominated for but not confirmed for the United States Supreme Court Judge Bork is now a fellow at the American Enterprise Institute law professor Jeffrey grants quote the Constitution was written in the 18th century when blacks and whites were slaves and indentured servants and women were chattel the first 10 amendments were written when information moved only as quickly as the fastest horse on land or the fastest boat in the water close quote even if they wish to interpret the Constitution according to original intent or understanding Ren's argues judges today must have quite a lot of flexibility in doing so back to quotation that's the rub original understanding is not a firm or precise approach close quote judge Bork I don't know what the first part of that has to do with the second of course nothing about interpreting the Constitution can be precise we're dealing with words we're dealing with principles and you have to discuss how far the principle reaches how far it doesn't reach it's not a mathematical exercise it's a question of judgment all right go ahead the problems he raises are not problems at all that is nothing in there could not be solved by legislation Constitution doesn't require slavery Constitution doesn't require that women not have the vote that was up to the states so that to say that the Constitution is somehow out-of-date is quite wrong all right a couple of problems putative problems with original understanding and and the first couple of these all fall under the category of we live in a different world new technology fourth amendment prohibits unreasonable searches and seizures but the court has used the amendment to praise to place strict limits on electronic surveillance which of course the framers had no way of foreseeing just for this little lame and explain how original understanding gets you from the document to limits on electronic surveillance well that's precisely an example I use in my book as a proper use of the Constitution the reason they had a fourth amendment about limiting unreasonable searches and seizures was that they had government intruding upon your privacy in your home or your office and they didn't want that done when they when the government no longer had a constable clapping in and heavy boots but managed to get electronic devices the principle is the same the government is intruding upon your home or your office it's a form of a search there's no problem with that just as the first amendment they didn't know about electronic communications but they have extended the First Amendment to electronic communications because it is speech now I don't think they have extended it far enough but they have come a long way so there's no absolutely no problem this is not hard work the new technology doesn't doesn't present as difficult problems the problem it arises when when the court invents a new principle that's not in the Constitution the application of existing principles well people can disagree about it but at least we know what we're talking about okay let me change is in Social Attitudes it give me another existence how you get from the document to the modern world the framers lived in a world in which many condone slavery and all those who all though those who drafted the 14th amendment lived in a world that had just abolished slavery they took segregation for granted and yet you have written approvingly of Brown versus the Board of Education of Topeka Kansas 1954 case that strikes down segregated schools proclaiming that separates schools for blacks are inherently unequal a notion that presumably would have surprised those who wrote the 14th amendment so how do you work that one out it would have surprised that them and surprises me today to say that they're inherently unequal what they were on equal about was they weren't treated equally by the government but let's go back for a second right the framers of the Fourteenth Amendment knew that they had segregated public schools it was a very small public school system but they knew they had segregation so that they wrote a requirement of equality in assuming that segregate separate-but-equal was equal right we you then know over a period of 50 or so years that it's never equal that you've know that empirically you keep litigating cases about segregated colleges segregated high schools segregated drinking fountains on and on and on golf courses you keep litigating fine you realize that there's never going to be a quality under segregation mhm at that point you have to choose between what the framers wrote which was equal protection of the laws and what they assumed that equal equality could be achieved with segregation you have to choose between those I think it's proper to choose what they wrote and the basic principle of equality rather than their assumption the segregation was consistent with equality let me ask how an originalist approaches aspects of the Constitution that are unclear or ambiguous second amendment a well-regulated militia being necessary to the security of a free State the right of the people to keep and bear arms shall not be abridged now on this very program we've had historians come on and say that clearly was intended to give individuals the right to bear to own arms and we've also had historians come on and say no no we've done the research looked at the documents the framers intended only to permit states to raise militias of their own quite a separate matter from whether individuals have the right to bear arms now I as a layman and can't choose between these historical views there's at least in good faith you've got bright people suggesting there's historical ambiguity what do you do with that a judge has done and decides which is the more persuasive evidence the reason that people are called judges because it requires a judgment incident they're not mathematicians they can't take a premise and work out inexorably to a result Scalia and I were on the same court we both were originalist believed in the original understanding occasionally we would disagree strongly about what that meant now that was only in 1% of the cases we sat together on but nevertheless but still reasonable people both attempting very hard faithful to the original understanding can indeed disagree to disagree but the important thing is that they stay within the same framework that is one thing we could always agree on was that you can't make up new principles and say that and say that they're in the Constitution mm-hmm we could disagree about the application of existing principles mm-hmm okay and so one of the tools in your toolbox as a judge in original understanding that is historical research I'm sure that becomes tremendously important and it would be the case that if new research began to emerge that over a decade or so suggested that the framers did want individuals to bear arms or did not yeah the judge would would presumably revise his opinions accordingly you're constantly seeking the best understanding you can get of their understanding that's the whole method that's the whole method unfortunately we have right now an example of a case where research is just devastated the Supreme Court's historic assumptions and that's in the religion clauses of the First Amendment this misses about strict separation of church and state right that is nowhere to be found in the history of the First Amendment in fact it's quite clear you know this book by Philip hamburger called separation of church and state which is a wonderful book and it's quite clear that the idea of strict separation between church and state was Anathem at all religious groups and others at the time they didn't want the Church controlling the state they didn't want the state controlling religion but the idea that you know today you can't have couldn't put so help me God in the Noth or put yea we trust on a coin that's ridiculous yeah or praying before a football game that nobody gets hurt that's you know an outrage they say they say now we have the historical evidence the court is quite wrong the court is dead wrong the question is whether the court will ever turn around and give way to that historical evidence I doubt that as long as president membership of the court is there that they will you have just laid out original understanding as a guide that can it's accessible to us you can use the historical tools you can go back do your best take your best shot at understanding what they understood what the debate said right what the newspaper articles the time said the question is what reasonable men would have understood those words to mean right not a secret intention in the back of somebody's skull at the convention right but what laws a public act and the question is what what the public would have understood let me get judge bork's opinion on the Supreme Court's recent decision overturning the Texas homosexual sodomy law and on the decisions that led up to it the Lawrence decision is quite recent so-called Texas sodomy law in which the court overturned it I'd like to get to Lawrence and discuss several of the precedents for Lawrence simply go through what the court has done in this matter and have you give me a layman's education on what the court did wrong should have done did right we begin with the house that William O Douglas built the house of privacy now 1965 Griswold versus Connecticut the Supreme Court strikes down a Connecticut statute outlawing the use of contraceptives Justice William O Douglas writes for the majority quote the foregoing cases he's just cited some cases suggest that specific guarantees in the Bill of Rights have penumbra's formed by emanations you're smiling already from those guarantees that help give them life and substance the right of association contained in the penumbra of the First Amendment is one the third Amendment in its prohibition against the quartering of soldiers in any house in time of peace without the consent of the owner is another facet of that privacy the present case concerns a relationship here he's talking about the marital relationship lying within the zone of privacy created by several fundamental constitutional guarantees now he's using language that we find visible the penumbra and the emanations and the zone of privacy but a moment ago you yourself referred to the prohibition on search and seizure and suggesting that the founders had some understanding some principle of privacy at work so is this they have specific that a specific principle of privacy work in the Fourth Amendment it was privacy in your home and in your office from search by the government that is he's not a bird not a just a broad-ranging right of privacy you can apply anywhere now Douglas made up a right of privacy it's attached to nothing and and the interesting thing was he attached it he said it's inherent that it's crucial to the marriage relationship okay the next thing they do is take it and apply it outside the marriage relationship right and to any kind of sex then they take it to and they apply it to abortion which is not exactly a private transaction we'll come to these cases okay well and then they come to they come to homosexual sodomy and well now that's hardly marital relationship this this thing the right of privacy is a free-floating right that the court can do with as it wishes can I go on tours when when this comes out if this case is decided in 1965 if I remember your career correctly you were teaching at Yale at the time did you spot that this was trouble right away no no no I take it back I once tended to believe you could make something like that and you could create a privacy right of some kind well not privacy it really is an autonomy right I mean if you take the Bill of Rights what they are all every one that was about a personal freedom right so if you want to generalize that you have a right of general freedom general autonomy well of course you can't have that that's anarchy mm-hmm so I for a long time spent time and of course I taught trying to devise reasoning about when the government was entitled to coerce and when it was not a totally ridiculous episode effort on my part because I was in effect saying what what Douglass said and what others have said since that the framers really weren't as bright as we are and they had these specific episodes of privacy or rights that they wanted to they wanted to protect and we now can stand back in see that they had a larger concept they should have seen it explains all of these things and and we can apply that larger concept so you next how the concept of a right to privacy led to the legalization of abortion 1973 Roe versus Wade writing for the majority justice Harry Blackmun quote the right of privacy it's now not a zone of privacy but a right of privacy whether it be founded in the 14th Amendment's concept of personal liberty and restrictions upon state action as we feel it is or as the district court which had reviewed the case before it went to the Supreme Court determined in the ninth amendments reservation of rights to the people is broad enough to encompass a woman's decision whether or not to terminate her pregnancy we therefore conclude that the right of personal privacy includes the abortion decision close quote you have written that that majority opinion was 51 pages but contain not a line of legal reasoning that's right what you get in there is a history of abortion in the Egyptian days you get history of abortion under English common law you learned about the attitudes of the American Medical Association towards abortion you learnt all these things all of a sudden he says there is a right of privacy and it's broad enough to cover abortion and that's it and that's it it's simply asserted in the most brazen possible way you know all right seven justices of the Supreme Court seven out of nine yes signed on to that decision that's right you don't surprise me but the point is you argue your point of view as if this activism were somehow errant and obviously Aaron no no no it's going on all the time it's it's it's a mistake it's a perversion of the judges function but it is the dominant view of on the court today they've all signed on to it not all not all or 1992 now Planned Parenthood of southeastern Pennsylvania versus Casey because medical science had made it clear that fetuses were in fact viable that is that they could live outside the womb during the second trimester of the pregnancy in Roe the court has set up this schema where if there's a first trimester second trimester third trimester the court in the Casey case throws out the framework of Roe the three tries framework of Roe but it refuses to overturn Roe citing the doctrine of you'll have to help me with the pronunciation the start decisis story I decide isn't right and that is the need to ensure the stability of the law by referring to precedent that was reasonable wasn't it isn't that something that a a conservative well no it wasn't reasonable there because they did in fact change row they didn't adhere to Roe they did have a lot of it out yeah and changed and secondly in constitutional law precedent is less important than anywhere else because if it's a statute or a common law decision that Congress can say we don't like what you've done and change the law if the court makes a bad mistake about the Constitution nobody can cure it except the court and that's why precedent is less important in constitutional law that is elsewhere so at any moment in American history the nine justices if the Supreme Court have to be especially alert to the possibility that their predecessors are they have to be especially alive to the possibility that they might need to overturn a previous decision that's right you get a Scalia points out in the Barnes against Texas case in in Casey they talked a great deal about how we can't overturn this because of precedent because of a we be giving way and when they come to Lawrence which is the homosexual sodomy case they do overturn the president only of seventeen years standing and Bowers against Hardwick which says you can have a homosexual sodomy law mm-hmm so every reason they gave not to overturn Roe they gave in the opposite direction to overturn the Texas sodomy law now on to the Lawrence decision itself June 2003 two gay men say that the state of Texas deprived them of privacy rights and equal protection when they were arrested in 1998 for having sex in Houston home attacked the Texas statute under which they were arrested the so-called sodomy law banned homosexual sodomy but not heterosexual sodomy and the court overturns the Texas statute writing for the majority Justice Anthony Kennedy who if you do a google search for him you'll see him described over and over again it's centrist or conservative and he's reappointed by Ronald Reagan quote had those who drew and ratified the due process clauses of the Fifth Amendment or the Fourteenth Amendment known the components of Liberty and its manifold possibilities they might have been more specific that isn't protecting the right to homosexual conduct they new times can blind us to certain truths and later generations can see that laws once thought Necessary and Proper in fact serve only to oppress close quote are you impressed wonderful rhetoric and and where's the where's the error where's the meat where's the beef the Constitution has nothing in it that would prevent a state from allowing homosexual sodomy from allowing abortion or from disallowing homosexual sodomy and disallowing abortion those are topics simply not addressed by the Constitution the Constitution assumes that most of our laws will be made by the moral choice of the American people acting through their legislatures the Constitution doesn't isn't the only law that exists it's only a framework for how we go about things and a list of specific things legislators must not do beyond that it's up to the legislature we used to say that the Supreme Court's capacity to set aside the Democratic will would be kept in check by informed professional criticism and by public reactions the fact is there is very little inform professional criticism most of the profession I think being on their side of the culture or likes this kind of thing certainly the universe the law school professors do and the public doesn't react much the public is kind of passive when these things happen so what is to be done well that's a good question and the one I have no answer to at one point I proposed that a constitutional amendment to allow both houses of Congress acting together to overrule a constitutional decision by the court I'd gave that up because it's never not only is it never going to be passed the amendment never nice never adopted but Canada has such a clause in their constitution that the legislature can in effect supersede that's right Court decisions it's a way of putting a democratic check up on a runaway Court but it is almost never used in Canada when they try to use it as a media scream about you're interfering with judicial independence of course that's precisely why the thing is in the Canadian Constitution independence has nothing to be cherished we're have to be sure not always were poised right now right last topic the impact of politics on the judicial process 1937 frustrated by Supreme Court that's overturning New Deal legislation Franklin Roosevelt steps forward with his so-called court packing scheme he's going to add new seats and put justices on the court that'll enact his legislation and as political pressure builds the court begins reversing itself and approving New Deal legislations marvelous witticism that the courts reversal was the stitch in time to say goodnight switch the switch in time that saved 9:00 exactly so the question here is is what we're seeing today simply the latest iteration of something that has been going on since the beginning and we just have to live with which is that justice is bow to political pressure ultimately and that what's going on right now is that they're bowing to political pressure from one particular informed and literate sector of American society I don't yeah I think it's political pressure I think it's it's a class that they identify with and whose approval they very much want that is who makes the reputation of a Supreme Court justice people in law schools who write articles journalists and so forth and so on and they begin to play to that audience I don't think it's political pressure in order to overcome that you'd have to have well even Roosevelt who at the time they just won a landslide victory over Landon and it was power as powerful as he ever ever was gonna be as any president ever wasn't the entire 20th century I think even he when he pulled the court packing plan in fact they blew up he tried to pack the court with new justices to change the results and even his Congress wouldn't go along with that that's right so such as deference so so deeply rooted his deference to the court in Americans they cry about you're interfering with our constitutional rights is always a powerful form of rhetoric even when it's not true I'll close with a couple of predictions let me begin by set that set this up by quoting Justice Scalia's dissent in the lorentz case the court today pretends that we need not fear judicial imposition of homosexual marriage Kennedy had said in the majority opinion in effect look sodomy they it just said he always said was it's not involved here right okay as has recently occurred in Canada back to Scalia do not believe it says Scalia today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions a decade from now will the Supreme Court have mandated homosexual marriage I think it's less than a decade they will happen in two ways one is Massachusetts about to announce a constitutional right under their constitution to homosexual marriage at that point people will come to Massachusetts get married go back to their home states there is the Full Faith and Credit Clause which says the other state must give credit to the Massachusetts to W fight about the constitutionality of an attempt to stop that the other route and ma spread across the country by state court action and by Full Faith and Credit Clause the other route is the direct appeal to the Supreme Court in itíd States which I think is ready to give a right to homosexual marriage at least will be ready in a few years the only way to stop this is there is a proposed constitutional amendment saying that marriage is something between a man and a woman and you and no statute or constitutional thing may be interpreted to say it's same sex marriages is a marriage now it doesn't try to stop civil unions if the if legislators want to approve civil unions it's up to them I would oppose that but but it's up to them but marriage itself is too important I think to be sacrificed in the way that homosexual marriage would do now it must be said that heterosexuals have already done enormous damage in the marriage with with their laws about no-fault divorce and that kind of thing so that the the the whole blame for the damage to the current situation of marriage and the family is certainly not to fall on homosexuals but this would be of a decisive step I think unless there's an amendment to the Constitution the court will indeed mandate homosexual marriage I think so do you then support such an amendment yeah you do and do you think that such an amendment is likely to pass zippy the fact is that the opposition to homosexual marriage is eroding in the public there's still a majority who doesn't like it thinks it's bad but the percentages are not as high as they used to be and that is in part because of a brilliant campaign homosexual activists have waged to convince us that homosexuality is just like heterosexuality just a question of taste question of preference and doesn't have no difference as I think that's not true but it's having its effect and it may be that the public will not be sufficiently alarmed to to pet to adopting the constitutional amendment so it's iffy yeah Judge Robert Bork thank you very much thank you I'm Peter Robinson for uncommon knowledge thanks for joining us

Channel: Hoover Institution

Views: 42,759

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Keywords: Bork, Constitution, rights, original, intent, Supreme, Court

Id: bRkhBav4ekA

Length: 26min 30sec (1590 seconds)

Published: Fri Oct 10 2008