Bostan, Bork, and the jurisprudence of limited government.

• Author: Rutten, Andrew
• Position: Response to article by Richard Boston in this issue, p. 271, on Richard Posner

Richard Bostan offers a spirited and witty critique of Richard Posner's constitutional jurisprudence. He argues that Posner is not a real conservative, but a poseur who plays the part when it suits him. Like a real conservative, Posner embraces economic theory and free markets when discussing economic policy. But unlike a real conservative, Posner embraces pragmatism as the method of interpreting the Constitution. According to Bostan, a real conservative follows Robert Bork and embraces originalism as the method of interpreting the Constitution. In his words, "conservative intellectuals in the United States [with one exception] line up behind Robert Bork." They do so not out of blind hero worship but because any other interpretative approach gives judges far too much autonomy, thus leading us farther down the path toward tyranny of the majority -- the majority of the Supreme Court, that is.

This approach has its merits. Most obviously, because Posner wrote an unfriendly review of Bork's The Tempting of America (Posner 1995), he has given Bostan ready material from which to build his case. Thus, there is little need to worry that Bostan has misconstrued Posner. Unfortunately, arguing that because Posner disagrees with Bork he is not a conservative also has serious drawbacks. Most salient, it simply is not true that originalism is the only jurisprudence of those who espouse limited government. Nor does pragmatism imply a lack of respect for American constitutional traditions. To the contrary, Posner's position has a long and honorable history in the United States. Even today, many libertarians adopt it instead of the strict originalism favored by Bostan and Bork.

More distressing to Bostan's argument is that Bork provides a weak foundation on which to try to build a case for originalism. On closer inspection, Bork's defense of originalism turns out to be a house of glass built on the sand. Bork has built on the sand by relying on fictive history, a past that happened only in textbooks, not in the real world. And he has built out of glass by adopting, at crucial points, the methods he rejects in others. Taken together, these design flaws should make readers wary of Bostan's claim that Bork's is the only fit house for free men.

These are strong criticisms, but the arc easy to prove. Because Bostan's question -- What should guide constitutional interpretation? -- is important, and his answer -- the original intentions of the founders -- is propagated by scholars as distinguished as Bork, it is worth going over the contrary case in some detail.

Is Originalism Really the Jurisprudence of Constitutional Government?

Yes, according to Bostan. As already noted, he claims that agreement with Bork provides a litmus test of one's jurisprudential fitness. Indeed, his whole argument turns on the claim that rejection of Bork entails rejection of conservative values. Is this true? Do only originalists believe in limited government? No. In fact, plenty of proponents of limited government argue for other interpretive approaches.

It is hard to see why Bostan makes his claim. Even Bork does not go so far; he openly admits that many conservatives disagree with him. Indeed, he devotes an entire chapter of Tempting to the topic: chapter 10, "The Theorists of Conservative Constitutional Revisionism" (Bork 1990, 223-40). In it, Bork analyzes, and then rejects, the constitutional theories of two libertarians, Bernard Siegan and Richard Epstein. Though focusing on two very different clauses of the Constitution -- Siegan (1980) stresses due process, and Epstein (1985) the takings clause -- both Siegan and Epstein reject Borkean precepts about how to read the Constitution.(1) Yet, as Bork notes, they do so in the name of many of the same political values that Bork advocates. Nor are they alone; many other libertarians have explicitly rejected Bork's reasoning. For instance, Stephen Macedo, wrote an entire book, The New Right v. the Constitution, criticizing Bork's constitutional theory (Macedo 1986). Unlike Bork, Macedo embraces the Court's recent decisions protecting personal rights. He just wants the Court to extend those protections to economic rights as well.

Moreover, two of the best-known conservatives on the bench today, justice Antonin Scalia and Judge Frank Easterbrook, have argued against originalism as an approach to statutory interpretation. They advocate a rigorous adherence not to the original intent but to the words of the text. Although many (especially their critics on the Left) portray this radical textualism as a variant of originalism, it is not. Indeed, Scalia and Easterbrook explicitly developed their approach as an alternative to intentionalism.(2) Contra Bork, they argue that because the original intent of a collective body is inaccessible (if it even exists), originalist judges can pick and choose from among the detritus of politics for evidence supporting their policy preferences. Under these conditions, the only way to constrain judges is to restrict them to the words of the text. Any other materials will give them a de facto license to legislate. Although Scalia and Easterbrook couch their arguments with reference to statutes, it would seem that these same arguments would apply even more directly to the Constitution.

And, of course, there is Posner. A self-described "classical liberal" who takes his "stand with the John Stuart Mill of On Liberty," Posner seems to fit any sensible description of conservative (Posner 1995, 22). Yet, throughout his writings, Posner has also argued for a pragmatic approach to interpretation. Moreover, in contrast to Bork and Bostan, he argues that pragmatism is the interpretative approach most consistent with his political vision! In making his argument, Posner does not, as Bostan suggests, claim that judges are free to do as they please.(3) Instead, he argues that they should pay attention to the consequences of their decisions. He admits that when they do so, they might often decide to follow Bork and practice originalism. However, he believes that sometimes they should (or must) eschew originalism and take other factors into account when reading the Constitution. He wants them to do so openly, not furtively. And if they base decisions on consequences, he wants them to consider real consequences, not simply those cooked up in the judge's chambers.

Thus it appears that, as a matter of fact, Bostan is wrong to say that originalism is the only interpretative strategy acceptable to conservatives. Plenty of respectable libertarians disagree with Bork, and therefore with Bostan.

Is Interpretation Just an Obsession of Effect European Intellectuals?

Over and over throughout his article, Bostan, following Bork, claims that Posner is wrong, that it is really easy to interpret the law. To interpret is, he tells us, "to attempt to discern the intent of the author." This definition, he says, is clear to "everyone else in the world, save the academics influenced by...deconstructionsists." Thus, he concludes, by treating interpretation as a difficult process, Judge Posner has (perhaps inadvertently) joined forces with those who claim that since texts offer no guide, judges are free to read their own preferences into the law. And whatever it means to have rule of law, it cannot mean "rule at the whim of judges."

This argument sounds sensible, but is it correct? Are trendy followers of the latest fads in recondite European literary theory really the only people who find interpretation difficult? Does worrying about interpretation force one to accept the radical skepticism of the deconstructionists? Well, actually, no. A quick look at history reveals that concern over interpretation is neither new nor alien. Since before the founding, Americans have discussed interpretation. Moreover, their discussions reveal lots of reasons to reject the commonsense view of interpretation touted by Bork and Bostan.

One of the first Americans to worry publicly about legal interpretation was James Madison: in The Federalist no. 37, he defended the Constitution against charges that it was vague and incomplete. He argued that because the world is complex and we are relatively ignorant, those who draft and ratify...