Judge Bork and British Jurisprudence

A vote for the confirmation of Judge Robert H. Bork to be Associate Justice of the United States Supreme Court would have been a vote for a form of government we fought a revolution to escape.

When Judge Bork's writings and record is examined one is hard pressed to discover why such an erudite, scholarly, intellectual, charming, witty jurist would find the Supreme Court rulings banning racial segregation, allowing abortions, over turning a State Law on contraception, and mandating "one man one vote" and many similar rulings contrary to his legal philosophy and therefore worthy of being overturned. Judge Bork characterized himself as an "originalist" jurist, that is one whose only concern is in the "original" meaning of the Constitution. He said an originalist judge would find no trouble overturning such rulings for they were never within the context of the constitution in the first place, that is to say they are "non-law" hence ignorable.

Taken on their face the array of subjects and rulings Judge Bork found objectionable to his "legal philosophy" would place him as a "legal crazy." From the standpoint of the history of American jurisprudence his opinions and indeed some of his rulings didn't seem to make sense, except they seemed to be extremely conservative. The fact that he fired Archibald Cox, the Watergate Special Prosecutor in the now famous "Saturday Night Massacre," and in which the Courts subsequently found his judgement to be wrong, also seemed to place him outside the main currents of American concepts of fair play.

From Judge Bork's written and spoken word one had to conjecture that he was an Anglophile, that his scholarship took him to the origins of American law in English and British history and he got lost there. He seems to have blinded himself to the implications of Madison v. Marbury and either did not see or did not care to see how that case radically changed the course of American jurisprudence causing it to branch drastically from English law. In Marbury v. Madison Chief Justice John Marshall carved a role for the Supreme Court that was not contained in the Constitution, nor was its precedent to be found in English law. Marshall claimed the power for the Court to review the Acts of the Congress and by extension he set the stage for the authority of the Court to limit the actions of the President. All subsequent Courts have adhered to these precedents.

Judge Bork on the other hand has said quite simply, do what the Constitution tells you to do, but when the Constitution is silent do nothing. Following the Bork dictum, Chief Justice Marshall would have not established the precedent of judicial review and the course of American history would be radically different from what we have today. No place in the Constitution is it said that a corporation is a "person," yet that is a precedent of American law without which the organization of business and industry in the United States would not resemble its present form.

When Judge Bork advocated a "minimalist" or "originalist" view of the Constitution, he was in fact advocating the British system of jurisprudence. When Judge Bork asserted that the Congress can not limit the power of the President he simply reaffirmed what happens to be the case between the British Parliament and the British Prime Minister. The British have no written constitution. The laws of Parliament are supreme. The Courts in the British system accept the law as written—they in no way attempt to find meaning in the law Parliament may not have intended and the British courts in no way limit the Prime Minister. Judge Bork views the Constitution, not as a mechanism for the adjustment of viewpoints between generations, or the mechanism for the redress of wrongs inflicted "legally" by the "will of the majority;" Judge Bork sees the Constitution as another "law," to be interpreted as one would a statute governing marriage, or the payment of taxes.

If we take the whole bewildering array of Bork opinion, literary as well as judicial and ask, how would the British Courts rule if the matters came before them, we would find Judge Bork in the "mainstream" of British jurisprudence. Consider the following issues in which Judge Bork was on the "other" side.

The right to privacy: Judge Bork said that since the Constitution is silent on the right to privacy, the Congress or the State Legislatures would have the final say, hence in Griswald v. Connecticut, the case involving the use of contraceptives by a married couple, the Supreme Court was in error because the Court overturned the "will of the majority," i.e., the legislature of the State of Connecticut in banning the use of contraceptives.

One-man-one-vote: Judge Bork held that the Supreme Court usurped the authority of the States when it interjected itself into the voting process since the Constitution gives the authority for establishing the voting mechanism to the States. State Legislatures determine who the eligible voters are and how they are to register and vote. This expresses the "will of the Majority." Any redress of voter discrimination then, would have to be taken up by the various State Legislatures—not the Supreme Court.

Abortion rights: According to Judge Bork since the Constitution is silent, State or Congressional law would be supreme and the Supreme Court would have no authority to intervene. Again State or Federal law would be the "will of the majority."

Segregation: Judge Bork asserted that majorities in State legislatures passed laws creating those situations and therefore the State legislatures are the responsible authorities to redress the grievance. Segregation, when it occurred as a result of State law, was the "will of the majority" and it should have taken the "will of the majority," i.e. State law, to overturn it.

The firing of Archibald Cox, the Watergate Special Prosecutor: Judge Bork considered the law passed by Congress saying the Watergate Special Prosecutor could not be fired except for gross misconduct in office was non-law since it limited the authority of the President. According to Judge Bork Congress can not limit the authority of the President.

The War Powers Act: Again Judge Bork viewed the War Powers Act as non-law since it limited the authority of the President. Judge Bork did not believe the Congress had the authority to limit the power of the President.

One need only ask how these issues would have been handled in the British system of jurisprudence to see where Judge Bork comes from. No British court would overrule the "will of Parliament," i.e. the "the will of the majority." No British Court would or could limit the authority of the Prime Minister. Since the British have no written Constitution this is absolutely the minimalist position. Judge Bork would have no problem going to work in the British system.

Judge Bork is woefully out of step with American jurisprudence, He opposes activist judges and activist courts. The British system has none, nor did it ever. The American court ever since Justice Marshall has been activist. The activism has been gradual and evolutionary, the activism has been good and bad (Dred Scott bad, Brown v. Board of Education good) but activist never the less.

All the great decisions of the Court have been interpretations of general or ambiguous provisions of the Constitution, or have been rooted in natural law. Protecting our natural rights is the most important function the Supreme Court plays. These decisions have been made by wise men appointed for life, whose decisions are not reviewable acting on behalf of the sovereign and to the common benefit of the sovereign—that is, the people of the United States. The British courts act on behalf of the sovereign by protecting the natural rights of the sovereign. But since the British people are not the sovereign, they do not act to the common benefit of the British people but to the benefit of the Queen. In both the United States and the United Kingdom the high courts represent the sovereign but in the UK the sovereign is the Queen and in the U.S. the sovereign is the people, consequently the role of the high courts is significantly different in each country.

Had Judge Bork been confirmed to a seat on the Supreme Court he would have led the Supreme Court in the direction of the British system and would have begun the evolution of our system of Government from what the Founding Fathers envisioned to a modified parliamentary system: We would have a Congress with the powers of Parliament (no judicial review), and a President with the powers of the Prime Minister (no limitation of authority for to limit the power of the Prime Minister is to limit the powers of the sovereign, i.e. the Queen). In addition the States would be free to do whatever they pleased as long as it was not in contradiction to the explicit terms of the Constitution. The U. S. Supreme Court would be reduced to supporting the Congress and the President and would lose its role of representing the natural rights of the people of the United States, i.e. the sovereign. The Supreme Court would be reduced to supporting and up holding "the tyranny of the majority."

The three branches of our government are not separate and equal, (See Ecology of the Separation of Powers). The Congress can limit the actions of the President through the power of the purse and impeachment and the Congress has the power to define the jurisdiction of the Supreme Court. That all three branches work as well as they do is largely a matter of tradition and courtesy. Enlarging or diminishing the role of any branch of the government upsets the balance of all the government. Our tradition has been to seek balance, find balance, restore balance, pursue balance. Even after the cataclysm of civil war we restored balance to our government. Liberal judges and conservative judges alike have made their mark upon the Court and the dynamic balance has been maintained. Judge Bork was perceived as a threat to that balance. Advocates of Judge Bork perceived him as the person to accomplish the overturn of decades of legislation, hard fought gains achieved with lots of compromise, because of his view of the Constitution.

A vote for Judge Bork would have been a vote for Parliamentary government with an elected monarch. Acceptance of Judge Bork's views in the highest court in the nation, and with a majority of the court following him would have been as radical a turn in our nation's evolution as the American Revolution was and it would have led us back to the conditions that made the American Revolution necessary. The system prevailed. Never in history has the reaction of the American public been so vociferous and single minded. The vast majority of Americans did not want Judge Bork on the bench of the Supreme Court.

Senator Joseph Biden in summing up the hearing said it all. He said that the difference between Judge Bork and himself was that he, Senator Biden believed he was born with unalienable rights, while Judge Bork believed he got them from the government. Had Judge Bork understood the Declaration of Independence, (the mother of our law, it defines us as a nation and is the basis for the Constitution and is Statute at Large #1 of the Statutes at Large of the United States and is living law), he would be sitting on the Supreme Court today.

. . . Theodore W Sudia . . .

© Copyright 1988
Institute for domestic Tranquility