Mensch tracht, und Gott lacht

Tuesday, July 19, 2005

What People Forget About Bork . . .

This Supreme Court nomination brings back discussion of Bork because the left would like to see something like that happen again. It's the model. Of course, they had a majority and were still the dominant party then. The memory is that Bork lost for being extreme. I recall a little history and can suggest a different reason.

The reason Bork was demonized was simple payback. He was in Justice during Watergate. Nixon told Elliott Richardson to fire Archibald Cox (special investigator). Richardson resigned. Next guy down resigned. Bork agreed to do the firing at the behest of Richardson and his lieutenant because someone had to do it lest a full-blown constitutional crisis emerge. That act earned Bork everlasting enmity from the left.

Some commenters will ask why I'm making a post out of a response I gave to comments earlier. The answer is, "I feel like it."

22 comments:

James F. Elliott said...

Weren't eternal Righty bugaboos David Souter and Hillary Rodham (soon-to-be Rodham-Clinton) on Cox's staff? The same staff that stood up to Bork and continued the investigation? Why, I believe so!

So, Clinton was payback for Nixon on all sorts of levels, eh? And, given that much of the Bush Admin's runners and gunners cut their teeth during ol' Tricky Dicky's presidency, it's not surprising to see the ol' long knives come out, honed by years of vitriol and sad, sad hate.

Bork remained unconfirmed because he was a nutball, and you know it. Have you ever actually READ anything he's written. He's off his bleeding rocker, he is. Thanks for revisiting the Right Wing talking points though. Revisionist history is always fun.

James F. Elliott said...

Basically, the Right engages in projecting when it comes to Bork. They like to fantasize that he was rejected for some nonexistent personal failing that the Democrats demonized him for.

The truth is, he wasn't confirmed because his legal "theory" is anathema to anyone with an inkling of liberal thought. He basically believes that if a right isn't explicitly spelled out in the Constitution, we don't have it. Despite calling himself an originalist, he blatantly ignores the 9th and 10th Amendments.

That's why the crazy man got nixed.

Hunter Baker said...

James, it's crazy for you to accuse me of revisiting GOP talking points because I don't recall anyone having made the case I did above.

James F. Elliott said...

Really? Because I've read it at least once before in the Righty Blogosphere.

Don't worry. It didn't make any sense then, either.

Tlaloc, man, you'll pick a fight with anyone, won't you?

Hunter Baker said...

Sounds good in this echo chamber between two lefty's, but that's not a very good description of originalism.

Hunter Baker said...

Yeah, I thought you might want to know. What originalism would require is simply that you consult the intention of the founders and the plain meaning of the text understood amid the backdrop of the society in which they lived.

When it comes to something like ownership of personal firearms, for instance, we can learn something. I agree that the second amendment is not the end-all, be-all of gun ownership. It addresses a particular instance in which citizens may gather weaponry into a force for civil defense.

However, many did not want a bill of rights for fear that it would be taken to spell out all of our rights. That fear was repeatedly attacked with the assertion that we all know these aren't ALL of our rights. In the end, we had to have an amendment saying, these aren't ALL of our rights. If you had told men of the time that their right to bear arms depended completely on the second amendment, they would have revolted. Men understand that they had that right.

Understand? Your originalism says they wouldn't have that right. I've just shown you why originalism would have insisted they did. My originalism is the correct one rooted in the real history of the republic.

Hunter Baker said...

That should read "Men understood. . ." Sorry.

Hunter Baker said...

No, I knew you'd say it, but it doesn't. There was no understood right to an abortion during that time. In fact, one of the big mistakes in Roe (and widely understood to be so by legal historians) is Blackmun's claim that abortion wasn't prohibited early on in the Western world. The truth is that the code of Justinian prohibited it during the reign of the Roman empire. English common law also included strong limitations based on the concept of "quickening" when the child first moved in utero.

James F. Elliott said...

Baker, you're actually kind of wrong on abortion.

During the 19th century, termination of a pregnancy was a distasteful but socially acceptable method of preventing a drain on resources. There was no social stigma attached to it in America. That came later.

James F. Elliott said...

Also, Baker, your point about originalism exemplifies why Bork was a nutboy: He says he is an originalist and ignores the 9th and 10th Amendments.

Conservative originalists argue that they "know" the intent or historical background of why the Founders decisions were made as such, but when the facts of history conflict with their ideology, they're willing to throw originalism out and embrace interpretation and activism.

Take the whole Deism versus Christian argument. Or when I placed the Bill of Rights in the context of the history the Founders and their parents lived in, I am accused of "revisionism."

Basically, Hunter, I'm calling "Bulls--t!" on anyone who claims to be an originalist and clings to modern ideology. Our ideologies didn't exist back then. Our political parties didn't exist back then and, indeed, many of the Founders looked askance on party loyalties. Our current parties grew out of a difference of opinion on loyalty to the nation or loyalty to one's state (i.e. one of the 13 colonies) of origin (the Virginia contingent being one of the largest culprits, with the exception of Washington).

I'm not an originalist. I submit that no one is. You can't cling to a current ideology and claim to be an originalist, period. (That's a generic you, BTW)

Hunter Baker said...

James, my point is that it has not been unheard of to see abortion illegal at various points in Western history and no one supposed that it was some kind of absolute right. I don't know if you've read any social histories of abortion, but I have. I have also been published on the matter in a law review, so don't assume I don't know whereof I speak (or write).

There was a period in the 19th century when abortion became common in some big cities. The American Medical Association and churches carried out a crusade and managed to EXPLICITLY outlaw the practice in most of the nation. It was de facto illegal prior to becoming de jure illegal because doctors wouldn't do it. The Hippocatric Oath prohibited the practice.

Hunter Baker said...

I'm looking for no such thing. I'd be more than happy if we would abide by the method of amending the Constitution set out in the document rather than having judges create or deny rights because for Americans IT IS OUR SOCIAL CONTRACT. In arranging for a reliquishment of state sovereignty, there was a deal struck. Like any contract, it matters what the deal strikers thought.

Hunter Baker said...

James, you're wrong about the relationship of ideology to the Constitution. That is not so relevant. If we are true Constitutionalists, all questions of the right, the true, and the beautiful would belong to the states.

The Constitution is not a document like the Bible that tells us what is good, pure, etc. The Constitution is more like a treaty between two sovereignties describing how they will preside over the same population.

Hunter Baker said...

There's not a lot of justice in that. Real people gave up real rights and prerogatives for themselves and their ancestors in order to achieve a more perfect order. The deal they made is the deal they made. Neither you nor I are free to simply ignore it or discount it as the work of dead men because we wish to do so. It was a real event with real terms and conditions. We are not left without recourse. The document provides for amendment and it has been done many times. There is no reason we should have to settle for a shifting dictatorship of five justices either for us or against us.

Hunter Baker said...

No, you're wrong. The genius of the document is that it would work quite well even if interpreted as it was consistently prior to about 1935 (a standard date with legal historians). The states would simply bear a lot more responsibility for governing. Is there any particular reason that would be unworkable? No. We'd be more like a Europe with a lot of states and more cooperation between them.

James F. Elliott said...

Federalism is a fine thing, and one of the things us Democrats are discovering much to our chagrin is that the Republicans figured this out a long time ago (you know, that whole historical federalism versus the republic thing).

Arend Lijphart has devoted a lot of study to what makes democracy work. Basically, he found that if you aren't a small, homogeneous, and rich country like Belgium, you better have really good mechanisms for local resource disbursement and power-sharing for minorities.

The U.S. has built-in mechanisms for local-level resource management (federalism, if you will), but not so much for the minority power-sharing. That's why items like the veto, the filibuster, and 2/3 majority votes are so crucial.

But, within our system, the federal-level Constitution has been found to trump state rules that fall under their bailiwick. Therefore, it is important that judges be able to view the document in light of a changing society, changing demographics (if the Founding were to occur today, it would look a lot different and have to include minority power-sharing provisions), and advances in technology and quality of life. 225 plus years is a long time for a society to remain static, Hunter.

The Constitution is a blueprint for the ruling orders of government. It's not a social contract, it's the operating system for a nation-state.

Hunter Baker said...
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Hunter Baker said...
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Hunter Baker said...

1. There's no reason a centrally controlled government would be more or less static/dynamic than a decentralized one. In fact, the truly federal model has the advantage of Tocqueville's laboratories of democracy. Everybody is doing different stuff and you get to see what works.

2. Our current mode of interpretation brings about bizarre results like a Violence Against Women Act premised on the Interstate Commerce Clause.

James F. Elliott said...

Yes, indeed, VAW (and ADA, NCLB, IDEA, the Voter Rights Act, etc) was premised upon Congress' ability to affect interstate commerce because to do otherwise opens challenges under states' rights. Such an act was taken to set a minimum standard of rights for individuals across the nation, rather than having different standards in different states.

Because of the manner the Constitution is constructed in, where loyalties to one's colony played as big or even a bigger role than loyalty to the fledgling nation, state's with tiny populations, or backwards ideas, need to approve Amendments. So, even if a majority of American citizens wanted to enact such rights, a paltry collection of states could prevent such an act.

Sometimes you make do with what you have and create innovative solutions.

Hunter Baker said...

I think the big rights that needed to be created were well done so via the amendment process and the appropriately used 14th amendment equal protection clause. The extensive use of the Interstate Commerce Clause is fundamentally wrong and shows that the central government oversteps its bounds.

I've accepted it, but it's still worth arguing the point if we're going to discuss the workability of an originalist view.

Ed Darrell said...

If it was payback, Bork made it easy. Instead of listening to the questions of the senators and answering them fully and respectfully, as William Bennett had a few months earlier, Bork stormed through the hearings as if accusing each senator of complete idiocy and total incompetence.

The nomination was within Bork's grasp; he preferred to use the back of that hand to try to slap the senate, America, and anything else that rankled him at any time in his life.

The votes for Bork declined as the hearings went on. As Bork took the most extreme and bizarre reading of each of his writings examined, his supporters faded away.

In the end, Bork demonstrated the ill-temper and poor judgment which caused him to be the assassin of justice that Saturday. Having so ably demonstrated that he was incapable of learning from mistakes, or at all, the Senate regretfully voted his nomination down.

"Borking?" It was easy. Go to Lexis, look for "Author: Bork," hit "Print."

Bork had even refused the advice of key nominee-advisors, as I recall. Get worried for Roberts' chances if you read that he's "fired" Fred Thompson.