Conservatism

• Author: Walter Berns
• Pages: 507-511

Page 507

Conservatives would agree with Robert Bork's understanding of the role of the Supreme Court under the Constitution and with its implicit understanding of the Constitution itself. Bork concluded a 1984 lecture at the American Enterprise Institute in Washington with the following words:

Page 508

In a constitutional democracy the moral content of the law must be given by the morality of the framer or the legislator, never by the morality of the judge. The sole task of the latter?and it is a task quite large enough for anyone's wisdom, skill, and virtue?is to translate the framer's or the legislator's morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist.

Bork's is not, of course, the popular view of the judge's role, a fact made manifest by the reaction to his nomination for a seat on the Supreme Court. Some 1,925 law professors?surely a good proportion of the total?publicly opposed his appointment and took the trouble of communicating their opposition to the SENATE JUDICIARY COMMITTEE. Bork, they said in one way or another, was out of the "mainstream," as surely he was and is. Whereas Bork would appeal to the Framers' morality, mainstream lawyers, arguing that the Framers represented "a world that is dead and gone," tend to prefer their own; some of them go so far so to accuse the Framers of being morally indifferent, a view popularized by Ronald Dworkin, one of Bork's principal opponents. Dworkin sees the Constitution as in need of moral principles and would supply that need. What is required, he says, is a "fusion of constitutional law and moral theory, a connection that, incredibly, has yet to take place."

Conservatives would protest that a Constitution that secures the rights of man?the equal rights of man?to the end of "securing the blessings of liberty" is not lacking in moral principle. Still, had he chosen to do so, Dworkin could have found in the mill of the founding documents an abundance of the grist he wants to grind. There is, for example, JAMES MADISON'S famous statement in THE FEDERALIST #10 to the effect that the first object of government is the protection of different and unequal faculties of acquiring property. Protecting the equal rights of unequally endowed men can only lead to what Madison said it would lead to, and has in fact led to, namely, different degrees and kinds of property. In short, liberty leads to inequality, not of Madisonian rights but of wealth, position, and rank.

Unlike mainstream (or liberal) lawyers, conservatives are willing to live with this dispensation, and not only because they object to the means used by the mainstream lawyers to change it. The history of Title VII of the CIVIL RIGHTS ACT OF 1964 provides an example of those means. That piece of legislation was enacted by Congress to put an end to EMPLOYMENT DISCRIMINATION against blacks and women. But the Supreme Court, over the objections of conservative Justices, including Chief Justice WILLIAM REHNQUIST and Justice ANTONIN SCALIA, has converted it into a statute permitting, and in effect compelling, discrimination favoring blacks and women. Concurring in a case dealing with gender discrimination, a somewhat shamefaced Justice SANDRA DAY O'CONNOR indicated how this was accomplished: "As Justice Scalia illuminates with excruciating clarity, [Title VII] has been interpreted ? to permit what its language read literally would prohibit." When necessary to further their political agendas, mainstream lawyers, on and off the bench, favor appeals to the "spirit," instead of the written text, of statutes and to what they contend is the "unwritten," instead of the written, Constitution.

No case better illustrates this practice than the 1965 BIRTH CONTROL case GRISWOLD V. CONNECTICUT, and none has given rise to so much criticism from conservatives (and even from a few liberals) as the most prominent of the cases it spawned, ROE V. WADE, the 1973 ABORTION decision. To strike down the Connecticut statute forbidding the use of contraceptives?a statute that for practical reasons could not be enforced and for political reasons could not be repealed?the Court found a right to privacy not in a specific constitutional provision but in "penumbras, formed by emanations" from the FIRST AMENDMENT, THIRD AMENDMENT, FOURTH AMENDMENT, FIFTH AMENDMENT, NINTH...