Twenty-five years ago this fall Judge Robert H. Bork finished writing his book on originalism and constitutional theory and sent it to the Free Press for publication in January 1990. (1) Professor Calabresi had the great privilege of serving as Judge Bork's principle sounding board and research assistant on this book. He read and commented on every section of Judge Bork's argument for originalism in constitutional interpretation.
Shortly after the publication of The Tempting of America: The Political Seduction of the Law, (2) Yale Law Professor Bruce Ackerman published a critical review of Judge Bork's book entitled Robert Bork's Grand Inquisition, (3) Judge Bork was aware of Professor Ackerman's critical review, but by 1990 Judge Bork had vowed not to read any more essays on constitutional theory based on his belief that the whole field of constitutional theory was morally and intellectually bankrupt. Professor Calabresi did, however, read Professor Ackerman's book review and has long thought it merits a thought-provoking response. This essay is therefore a hitherto unpublished response to Professor Ackerman's 1990 book review of The Tempting of America. As the reader will see, the issues raised by Professor Ackerman's book review of Judge Bork's book remain timely and relevant to present day debates about constitutional interpretation.
Part I of this essay responds to Professor Ackerman's call for holism over a clause bound approach to constitutional interpretation. Part II responds to Professor Ackerman's claims with respect to the Fourteenth Amendment's Privileges or Immunities Clause and to the Bill of Rights' Ninth Amendment. And Part III concludes with a discussion of the relevance of the Enlightenment to U.S. constitutional law. The views expressed herein are the authors' own views, and we do not pretend that Judge Bork would necessarily have agreed with everything we say in this essay in defense of The Tempting of America. Indeed, we know he would not have been totally in agreement with us.
THE IMPOSSIBILITY OF A CLAUSE BOUND CONSTRUCTION
Professor Ackerman first begins his review of The Tempting of America by faulting Judge Bork for not citing enough work by professional historians of the Founding or of the Reconstruction; and secondly for considering the meaning of each clause of the Constitution he discusses without a holistic consideration of where those clauses fit into the whole structure of our Constitution as amended. We think both criticisms are unwarranted. The Tempting of America is not, and was not intended to be, a legal history of either the Founding of the Constitution or of the period of Reconstruction. Judge Bork's primary historical goal was to uncover the original meaning of the Due Process Clauses of the Fifth and Fourteenth Amendment, which had allowed the reemergence of substantive due process in Griswold v. Connecticut. (4) Judge Bork's interest in legal history was thus much narrower than Professor Ackerman's; while Professor Ackerman seeks to discover and apply the Zeitgeist of the 1780's and 1860's which only he can detect, Judge Bork was only interested in the much narrower and more lawyerly project of uncovering the original legal meaning of the two Due Process Clauses along with the Ninth Amendment and various other clauses in the Fourteenth Amendment. Professor Ackerman thus criticizes Judge Bork for failing to do something Judge Bork deliberately decided not to do. While Judge Bork believed emphatically that the laws made by people dead and gone bind us, he believed just as strongly that the un-enacted opinions of prior generations do not bind us today. For this reason, Judge Bork pursued the original meaning of the Due Process Clauses in 1791 and in 1868, but he did not inquire into the general legal Zeitgeist of the Framing or of Reconstruction nor was it necessary or even appropriate for him to do so.
Professor Ackerman implicitly accuses Judge Bork of doing law office history, which is to say that he thinks Judge Bork delved only lightly and inadequately into the history of the 1780's and 1860's to reach a fore ordained conclusion. But Professor Ackerman does not seem to realize that in writing The Tempting of America, the only history that Judge Bork deemed to be relevant was the history of the original public meaning of a small handful of constitutional texts and clauses. Professor Ackerman is such a foe of original public meaning textualism and such a fan of American history that he thinks a detailed exposition of the whole history of the 1780's and 1860's is necessary for Judge Bork's legal process to be a success. This is simply not true. Original public meaning lawyers consult history for much narrower purposes than legal historians--hence Judge Bork's focus on the original public meaning of a handful of clauses. Professor Ackerman is guilty of criticizing Judge Bork for practicing law office history when Professor Ackerman's own approach to constitutional interpretation leads to the original public meaning of legal texts becoming submerged in some elaborate account of the history of the times that gave rise to a legal text. Judge Bork could easily have responded by accusing Professor Ackerman of practicing "history office" law. History office law is what happens when you read up on the leading public intellectuals and Supreme Court of the New Deal, and then conclude that all their un-enacted opinions have somehow become law even though no new constitutional text codifying any change has survived unscathed in the Article V constitutional amendment process. The Tempting of America and Robert Bork's Grand Inquisition thus pass like ships in the night in relation to this matter because each is concerned with a fundamentally different historical question. As a result, Professor Ackerman does not lay a glove on this aspect of Judge Bork's book in Ackerman's own book review.
Professor Ackerman also bitingly criticizes Judge Bork for offering what Ackerman calls a clause-bound construction of the Constitution focusing on a few constitutional or bill of rights clauses in isolation, such as the Due Process Clauses of the Fifth and Fourteenth Amendments, while rejecting the connect-the-dots holism of Justice William O. Douglas's opinion for the Court in Griswold v. Connecticut, (5) Unlike the Zeitgeist complaint above, this is a serious charge, which merits a serious response.
First, Professor Ackerman concedes Judge Bork did rely on a holistic interpretation in cases involving the separation of powers. Judge Bork had a very robust view of the separation of powers, which he thought should be judicially enforced with vigor. A quick look at the Vesting Clauses of Articles I, II, and III reveals why holism is helpful in separation of powers cases, thus explaining Judge Bork's reliance on it for purposes of interpretation. The Vesting Clause of Article I reads that:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. (6) The Vesting Clause of Article II reads that:
The executive Power shall be vested in a President of the United States of America. (7) And the Vesting Clause of Article III and the "shall extend" clause read that:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.... The judicial Power shall extend to [nine categories of specifically enumerated cases or controversies]. (8) It is readily apparent when reading these clauses together, holistically, as Professor Ackerman recommends, that Congress's legislative power is limited to only those enumerated powers "herein granted" explicitly by the Constitution; while the judicial power of the federal courts extends only to the specified nine categories of cases or controversies. Strikingly, however, the President's executive power is not limited by the Vesting Clause of Article II to apply only to those executive powers herein granted, and the Vesting Clause of Article II is thus a general grant of all powers thought to be executive in 1787, with the exception of a few specified powers; for example, the powers to make appointments and treaties which the constitutional text explicitly shares between the President and the Senate. Therefore, a holistic interpretation of Articles I, II, and III leads to a broad reading of executive power which Professor Ackerman has elsewhere bemoaned, especially in his book, The Decline and Fall of the American Republic. (9) Professor Ackerman cannot have it both ways. Either Professor Ackerman endorses the holistic interpretation of the constitutional text, as in the Grand Inquisition, or he deplores the holistic interpretation of the three Vesting Clauses together as in his recent book criticizing presidential power. Professor Ackerman cannot criticize Judge Bork for failing to holistically interpret Articles I, II, and III, when Professor Ackerman himself does not interpret those articles holistically. It is a plain stubborn fact of U.S. constitutional law that Article II's general grant of the executive power to the President gives him some inherent and implied powers; such as the removal power and what Henry Monaghan labels the protective power. (10) The President does not, however, have the power to act contra legem, i.e. a power to act contrary to enacted statutes that are constitutional.
The courts have held a similar view that the structural division of the three branches' powers into three separate articles reflected a clear intent on the part of the Framers of the Constitution in favor of a holistic separation of powers principle. In a classic example of this separation of powers jurisprudence, the Justices of the Supreme Court wrote a famous letter to President Washington in 1793, called The Correspondence of the Justices, (11) in which they said...