To the Editor:

In response to Terry Eastland’s article, “Bork Revisited” [February], I would first like to point out that The People Rising: The Campaign Against the Bork Nomination does indeed include an index. Mr. Eastland’s inaccuracy on this point at the beginning of his article sets the tone for an exercise in sophistry and selective fact-gathering that mirrors the so-called bias and heavy-handedness he claims were characteristic of the anti-Bork coalition.

Mr. Eastland is completely uncritical in his praise of Robert H. Bork. He justifies many of Bork’s unpopular positions by pointing out the judge’s philosophical commitment to original intent, and attributing the failure to win confirmation to a Democratic Senate, an indifferent and beleaguered President, and a group of unscrupulous liberal interest groups who outmaneuvered the Right. Mr. Eastland only grudgingly acknowledges that Bork could have performed more effectively at the Senate hearings, although he qualifies this by justifying Bork’s failure to examine these shortcomings in his own book. Mr. Eastland whines, “But such an exercise in self-criticism—what some critics would like is a kind of confession—would be pointless.” Self-criticism is obviously a practice Mr. Eastland has an aversion to, and one can see this manifested in his facile ability to hang the responsibility for Bork’s ultimate defeat on everyone save Bork himself.

As for Mr. Eastland’s insistence that Bork’s legal positions are a product of a constitutional scholar dedicated to upholding “the principles intended by those who ratified [the Constitution]”—and, by implication, that Roe v. Wade is outside the loop of original intent and consequently, as Bork claims, “the greatest example and symbol of judicial usurpation of democratic prerogatives in this century”—I find this disingenuous. For the most part those who are passionately opposed to Roe v. Wade don’t give a damn about originalist thinking or Bork’s self-presumed ability to intuit the intentions of Americans who lived over two centuries ago. They fervently believe abortion is unjust.

By the same token, Mr. Eastland’s somber reflections on the damage done to those earnest caretakers of “legitimate judicial power” by the anti-Bork coalitions mask his real resentment: that he and others in the pro-Bork camp experienced what is known as “getting their asses kicked.” He wistfully complains that “the Left convened in a ‘War Room,’ . . . where its leaders watched the proceedings and wrote statements they would then take to the media in time for the network news. No one was doing that for Bork, at least not until the very end of his testimony.”

The People Rising points out that the outcome of the battle over the Bork nomination is relevant to future political struggles in the 1990’s. The books ends by stating: “We believe the tiger of an American progressive movement is crouched and ready to jump again.” If Terry Eastland and his fellow partisans hope to wage their battles successfully in the new decade, I suggest they read and reread The People Rising for some pointers.

Neil Ortenberg
Thunder’s Mouth Press
New York City

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To the Editor:

. . . While Judge Bork and Terry Eastland, it appears, are both troubled by the politicizing of the judicial-appointment process, the milieu in which Bork was nominated created that “unwanted” atmosphere. The President and his Attorney General were more explicit: the programs not otherwise accomplished by the Reagan administration would be accomplished by appointments to the Supreme Court.

If the public, the casual observer, or the serious student came to a conclusion that Bork had to pass a political test to achieve the President’s nod, then it was certainly Messrs. Reagan, Meese, and Bork who lent credibility to that thought.

As for Senator Kennedy’s “Bork’s America” speech, that was recognized by anyone truly interested as simply politics as usual. I for one had serious doubts about Bork and the “compassion” that I feel is required of a judge, let alone a Supreme Court Justice. But, beyond compassion, it was simply crude to permit this to evolve into the slogan: “I am against judge-made law.” What kind of law is there but judge-made law? I am positive that Bork understand—seven if Mr. Eastland cares not to understand—that when King Henry turned to his chancellor and bade him do equity among Henry’s subjects, judge-made law was born; it has remained well-nourished over the centuries. Mr. Eastland’s point of view is less than candid and Bork ought not to complain of politics. He made his own bed.

Michael Cook
New York City

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To the Editor:

Terry Eastland is probably right that the Bork hearings were a charade, but wasn’t there at least one occasion when a Bork supporter might have broken up the game and perhaps swung the presumably fair and independent-minded Senators Specter and DeConcini away from their later vote of rejection?

I am thinking of the time when Laurence Tribe was testifying. Senator Simpson challenged Tribe’s motivations, which evoked the response that if he, Tribe, were a Supreme Court Justice, he would separate his politics from his reading of the Constitution. Simpson nodded and let the response pass. But suppose Simpson had swiftly countered: but Professor Tribe, Judge Bork, under oath, has said precisely the same thing. Why should we believe you, but disbelieve Judge Bork? And why do you, who called Judge Bork an honorable man, impugn his integrity, wittingly or unwittingly?

A similar response by Bork to Senator Leahy’s introduction of “confirmation conversion” might also have helped his cause, or at least exposed the Marc Antonys with their “honorable man” bushwah.

Bernard Adelman
Winthrop, Massachusetts

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To the Editor:

According to Terry Eastland, Robert H. Bork, in The Tempting of America, examines cases in which “various Supreme Courts have read into the Constitution rights . . . that simply are not there.” Mr. Eastland asserts that writing personal beliefs into the Constitution “originated in the Supreme Court’s 1857 decision in Dred Scott, in which it read into the due-process clause of the Fifth Amendment a right to slaveholding.” This simply is not so. The right to own slaves was implicit in various places in the original body of the Constitution. The Dred Scot decision did not invent the right to own slaves where it had not existed.

In Dred Scott the Court stated that slaveowners had the right to take their slaves anywhere into federal territories and that Congress could not set aside any federal territory as an area in which slavery was prohibited, for such would limit the right of a slaveowner to take his property with him. No “right to own slaves” was fabricated by the Court in Dred Scott.

Joseph Forbes
Pittsburgh, Pennsylvania

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To the Editor:

In 1979 Terry Eastland and William J. Bennett published Counting by Race: Equality from the Founding Fathers to Bakke and Weber. Chapter 3 of that book is entitled “As I Would Not Be a Slave, So I Would not Be a Master: Lincoln and the Idea of Moral Equality.” The first sentence is as follows:

Professor Harry V. Jaffa has remarked that the “long political duel between Stephen A. Douglas and Abraham Lincoln was above all a struggle to determine the nature of the opinion which should form the doctrinal foundation of American government.”

In the footnote that follows this sentence, Messrs. Eastland and Bennett remark that

For the discussion of Lincoln that occupies the bulk of this chapter, we depend upon and draw extensively from the historical and philosophical analysis of Lincoln’s thought in Harry V. Jaffa’s Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates.

I do not think that Terry Eastland, even today, would deny that in Counting by Race he and William J. Bennett had accepted without reservation not only my account of what Lincoln believed to be “the opinion which should form the doctrinal foundation of American government,” but had accepted that opinion as their own. According to Messrs. Eastland and Bennett,

Lincoln’s . . . main insight was that the principle of equality [in the Declaration of Independence] was logically necessary to the idea of self-government. Self-government, by definition, requires the assumption that all men possess free will, that men are morally autonomous, capable of choosing right and wrong . . . and thus for one man to deal with another, because of his race, in ways that deny or diminish his intrinsic worth as a moral agent is to deny the very basis upon which self-government is possible.

The second resolution of the Republican party platform of 1860—upon which Abraham Lincoln was elected President—affirms

That the maintenance of the principles promulgated in the Declaration of Independence and embodied in the Federal Constitution, “That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,” is essential to the preservation of our Republican institutions. . . .

Lincoln himself, speaking in Independence Hall, on his way to his inauguration, said that he had never “had a feeling, politically, that did not spring from the sentiments embodied in the Declaration of Independence” (February 22, 1861).

There cannot be the slightest doubt that for Lincoln and the Republican party of 1860, the principles of the Declaration of Independence were the original and originating principles of the Constitution. No question of what was the “original intent” of those who framed and those who ratified the Constitution of 1787 (and the Bill of Rights of 1791) could have been answered in any other way than that it was “to secure these rights,” as they were understood within the framework of the Declaration. Moreover, the “just powers” of government were understood to extend only so far as such rights required security by government. “Of all free government,” wrote James Madison, “compact [i.e., the social contract] is the basis and essence.” The Constitution is a charter of limited government because the social contract which is antecedent to all positive law, and is its basis, limits the scope of government, and directs it toward those purposes that are in accordance with “the laws of nature and of nature’s God.”

Robert H. Bork has gained great celebrity of late—especially in his new book, The Tempting of America—as an exponent of a jurisprudence of “original intent.” But Bork’s conception of “original intent” is the very negation of Madison’s or Lincoln’s. In fact, the polemic against the social compact and natural-rights philosophy of the Declaration of Independence which Bork sustains throughout his book parallels exactly that of John C. Calhoun. Since Terry Eastland has become a relentless celebrant of Bork’s celebrity, as in “Bork Revisited,” we must ask why he has changed sides, in this the most momentous dispute in American—if not in world—history.

Bork unceasingly represents his jurisprudence of “original intent” as one scrupulously based upon the history and text of the Constitution. He finds the “original sin” in constitutional interpretation to be the idea of “substantive due process,” the first (and most potent) example of which he finds in Chief Justice Taney’s opinion in the Dred Scott case (1857). Taney had ruled that Congress might not outlaw slavery in a territory because it would deprive the slaveowner of his property “without due process of law,” which was forbidden by the Fifth Amendment.

According to Bork, Taney reached this result by discovering “that slave ownership was a constitutional right.” But, says Bork, “there is no . . . constitutional provision that can be read with any semblance of plausibility to confer a right to own slaves.”

And again, “Such a right [to own slaves] is nowhere to be found in the Constitution.”

In point of fact, however, the right to own slaves is recognized in several places in the Constitution of 1787. In all of them euphemisms are employed, but they are unmistakable. Article I speaks of “the whole number of free persons” and then of “three-fifths of all other persons.” Has anyone ever doubted that the “other persons” are unfree, i.e., slaves? Article IV, Section 2, paragraph 3 is, however, crucial for Taney’s opinion in Dred Scott. It declares that

no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

So far as I know, no one before Bork, in 200 years, has doubted that this clause constituted recognition of the lawfulness of slavery in the slave states. Not only does the Constitution recognize the right of owners to their slaves, it pledges the whole power of the federal government to secure that right. Who but slaves does Bork think might be “escaping”? . . .

Taney did not read a right to own slaves into the Constitution of 1857. It is Bork who has read the right out of that Constitution. By his willful denial of the actual text of the Constitution, the entire argument of Bork’s book collapses. In 1979, Terry Eastland—unlike Bork—would have been among the first to insist that Taney was mistaken, primarily and essentially, because he wrote that under the Constitution, Negroes “were so far inferior that they had no rights which the white man was bound to respect.”

It was by denying that black men and women were included in the proposition of human equality in the Declaration of Independence, that Taney could regard them as simply an “ordinary article of merchandise and property.” The Dred Scott decision was wrong because it repudiated the natural-rights foundation of the Constitution in the Declaration of Independence. This foundation Bork denies every bit as much as did Chief Justice Taney.

Harry V. Jaffa
Claremont, California

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To the Editor:

In discussing Robert H. Bork’s views on Griswold v. Connecticut, Terry Eastland praises Bork for pointing out, “as few writers do, that the Connecticut statute [barring contraceptives] had never been enforced and was unlikely ever to be.”

In point of fact, in 1940 the Connecticut Supreme Court upheld the prosecution of two physicians and a nurse, employed by the Waterbury Maternal Health Center, for counseling married women in the use of contraceptive devices. . . . Two years later, the court refused to read an exemption into the statute to permit physicians to prescribe contraceptive drugs or devices for married women whose lives would be jeopardized by pregnancy, pointing out that they had a “reasonable, efficacious, and practicable” alternative—“absolute abstention” from sexual intercourse.

In Connecticut legal and medical circles the memory of these cases was still lively in the 1950’s. . . . To be sure, condoms could be freely purchased; . . . diaphragms, however, were something else again. Many law-abiding physicians would not prescribe or fit them; others were sufficiently worried about adverse publicity . . . or even prosecution to engage in what might be called defensive medicine—confining their practice to married women who were regular patients or who moved in the same social circles. . . .

In 1960, another challenge to the constitutionality of the law was mounted by a diverse group of plaintiffs, but when their case (Poe v. Ullman) reached the Supreme Court, they were informed that they were tilting at “harmless, empty shadows” because there was insufficient evidence that they were threatened with prosecution, and the case was dismissed. A few months after this judicial refusal to pass on the constitutionality of the statute barring contraceptives, Planned Parenthood took the only remaining step available to get the issue resolved: it opened a birth-control clinic in New Haven. In less than a week, the clinic’s executive and medical directors were arrested; and it closed three days later. When the defendants, who were found guilty in Griswold v. Connecticut, finally got to the Supreme Court in 1965, it ruled, by a 7-2 vote, that the statute was unconstitutional. . . .

Bork repeatedly denies that the statute was ever enforced against “anyone who used contraceptives, married or not.” This is true, but it is not the whole truth. In the Griswold case, the trial court found that three patrons of the clinic, though not arrested, had violated the law by using birth-control devices “even though each of these women is married and living with her husband, since the prohibition of the statute against the use of such articles for such a purpose is absolute.” . . . Bork also asserts that “the lawyers had a difficult time even getting the state to fine two doctors [actually, only one of the defendants was a doctor] as accessories” in the Griswold case. Not so. The clinic opened on November 1, 1961; the objectionable acts occurred on the 6th; and the prosecutor filed his complaint with the court on the 10th.

Mr. Eastland quotes Bork as observing that “the [Griswold] litigation was an attempt to enlist the Court on one side of one issue in a cultural struggle.” I do not think, however, that either Mr. Eastland or Bork means that the state, which commenced the litigation, was guilty of attempting to subvert the judicial process; both almost certainly intend to direct their accusation at the defendants, who appealed rather than pay their fines. In any event, the “cultural-struggle” point can also be made about the interlopers and malcontents who complained about governmental action in the school-segregation, flag-salute, right-to-die, school-prayer, city-hall-Christmas-crèche, and a host of other cases; but what follows once we acknowledge that the cases reflect cultural rifts in our society?

Finally, Mr. Eastland says that “Griswold led, in 1973, to Roe v. Wade” (true enough), and he then endorses Bork’s verdict on Roe v. Wade—“the greatest example of judicial usurpation of democratic prerogative in this century.” In calling for the overturn of this judicial abomination, Bork and Mr. Eastland might have pointed out to their readers that the road from Griswold to Roe v. Wade also runs from Roe v. Wade back to Griswold. Alerted by this topographic insight, the readers might in turn have wondered whether Roe v. Wade can be demolished without undermining the constitutional foundation for Griswold, viz., what Mr. Eastland calls “the dubious right of privacy.” Of course, Messrs. Bork and Eastland may believe that the demise of Griswold is also a consummation devoutly to be wished, since it would turn control over the legal status of contraception back to the 50 state legislatures, where the Founding Fathers no doubt intended to place it.

Boris I. Bittker
Yale Law School
New Haven, Connecticut

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Terry Eastland writes:

The People Rising does have an index; my mistake. But still no footnotes, as I originally observed and Neil Ortenberg does not dispute. All of this is small potatoes, of course, compared with what Mr. Ortenburg really wants to say, and there is little point in refighting the Bork battle with him. I would have thought him willing to shake hands with me when I gave the Left credit for its skillful anti-Bork effort, but Mr. Ortenburg is hardly genial. About the rise of the progressive movement, whom is he kidding?

Michael Cook surely must agree that there is statutory law, regulatory law, and even the law of the Constitution. His point about judge-made law, I am afraid, is not very helpful. Obviously there is the common law. But federal judges are not, or at least are not supposed to be, common-law judges. They are supposed to interpret objective legal instruments. It is in this context that the distinction between interpreting and making law remains useful, in the way Bork has pointed out: that in discerning a law’s meaning a federal judge should be bound by what the text fairly says or what can reasonably be inferred from it, as opposed to breaking through those restraints and serving up something new, as occurred in Roe v. Wade. Finally, while federal judges’ use of the equity power remains controversial, it is worth noting, even if Mr. Cook does not do so, that this was not the central issue in either the Bork battle or the Bork book.

As for Joseph Forbes and Harry V. Jaffa regarding Dred Scott, Chief Justice Taney did read into the due-process clause of the Fifth Amendment a right to slave-owning. Wrote Taney:

[T]he rights of property are united with the rights of person, and placed on the same ground by the Fifth Amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.

Bork comments in his book that “this was the first appearance in American constitutional law of the concept of ‘substantive due process.” That was Bork’s basic point, and the one I had hoped to convey in my article, and I have seen no argument, and am aware of no previous Court decision, showing that it is wrong.

To Harry V. Jaffa I would add that I appreciate his mentioning Counting by Race, which, alas, was remaindered long ago, and I continue to have the greatest regard for his Crisis of the House Divided (although I hesitate to write this for fear that it may be later be used to prosecute me for some heresy!). I fault Dred Scott from the standpoint of the Declaration; I also fault it from the standpoint of the Constitution, whose due-process clause does not contain what Taney thought it contained.

Finally, Yale Law Professor Boris I. Bittker speaks authoritatively about pre-Griswold history, and I have no reason to quarrel with his account. On his point that “cases reflect cultural rifts in our society,” I disagree with such a benign reading of the origins of key litigation in recent years. Some groups preferred to litigate their way to public policy rather than achieve it the old-fashioned way, through legislatures. As for Griswold and Roe, I think it possible for the Supreme Court to distinguish the latter from the former (though not on originalist grounds) in order to overturn Roe. Meanwhile, it is worth noting that the Court, in a 1986 case, Hardwick v. Bowers, left homosexual sodomy to the 50 state legislatures, where the Founding Fathers did intend to place it.