“Stop Seeking Certainty.” Minow’s Response To Bork Philosophy Of Law In considering the views of Robert Bork and Martha Minow, I am impressed more by Minow. I will compare their respective views and arguments in an effort to show why I prefer the arguments of Minow to those of Bork. First though it is necessary to have a brief overview of Bork’s philosophy. Bork is a firm believer in the originalist mode of Constitutional interpretation. Many different scholars may have differing views as to the meaning of the word originalism. Here, it is intended to define “an.
approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of it’s adopters” (Lyons, pp. 329). This view can be subdivided into two categories. Those categories are the intentional and textual originalist views. The intention-based originalists argue that the original intent of the framers can be discerned from a neutral reading of the Constitution and peripherally related documents.
The problem here is that the framers, the adopters, the ratifiers, and the electors all had possibly separate intent and it would be difficult to know all of their intentions. According to this view, the Constitutional text merely provides clues as to the intent of the above mentioned groups. So peripheral documents, such as the Federalist papers, are important clarifiers of the original intent.The second subdivision of orginalism is called the textual orginialist view. This view argues that the actual text of the Constitution is what is most important in terms of understanding Constitutional intent. Bork began as an intention theorist, then later changed and came to adopt the textual originalist view point. Neither subdivision of the view of orginalism is very popular today, as is evidenced by the fact that Bork was not confirmed by the Congress when he was nominated for the Supreme Court.
Bork argues that by reading the text, and figuring out what the public understanding of the Constitution was at the time of it’s writing, we can discern what the Constitution actually means. The problem here is obvious. It is very difficult to know what the public understanding at the time of the enactment of the Constitution was.It is even difficult to know if there was in fact a public understanding at all. It seems possible that there did not exist a public awareness of all of the facets of the Constitution.
Bork argues that new Amendments to the Constitution are appropriate and permissible, that these are simply additions of new original ideas. However, he is opposed to constitutional “revisionism” of any kind. Here the term revisionism is intended to mean any reauthoring of constitutional principles by any governmental body other than the legislature.I think that Bork was specifically leery of the judiciary performing revisionist acts.
He seemed to be more leery of a Judiciary branch performing “revisionism” than he was of the executive branch performing such acts. Bork said “The theory [of Constitutional interpretation] must therefore enable us to say what is the limit of the judge’s legitimate authority..” (Bork. pp.54). Bork argues for a kind of enforced judicial restraint.
Here, when I use the phrase “judicial restraint”, I mean a strict adherence to precedents, the effects of which are so ingrained in our society as to make overturning them destructive to the fabric of our society at large. Bork goes on to argue for the importance of the neutrality principle as it relates to constitutional interpretation.According to Bork, a judge should make a decision based only on an original intent understanding of a given law in a given case. No personal pr eferences should come into play.
Instead, legal principles should be applied equally across all cases which those principles encompass. It is Bork’s assertion that his philosophy of original understanding can supply neutrality in deriving, defining and applying any legal principle. (Bork, pp.53) So, on to the distinctions between deriving, defining and applying. On the issue of derivation, Bork argues that via his philosophical view of original intent, it is possible to derive the meaning of any given Constitutional principle and that if any given situation is not covered by the Constitution, that situation is beyond the scope of the power and scope of the Courts jurisdiction, and thereby leaves the court “quite properly powerless.” (Bork pp.53).
On the issue of defining a principle, Bork argues again that this is quite possible within his framework and that all judges need to do in order define the breadth of a given principle is to take a historical look at the events a given principle concerned itself with at the time of the principles writing. Again, in this argument he asserts the responsibility of the judge to remain faithful to the document, so as to say that “where the law stops, the judge must stop” (Bork, pp56). Lastly, concerning application of a given legal principle, Bork argues that once a principle has been derived and defined, that the principle must be applied “Without regard to his [the judges] sympathy, or lack of sympathy.” (Bork, pp.
57).While he recognizes that some decisions may be admirable on moral grounds, he does not count the potential for moral admiration as sufficient cause for the judiciary to overstep what he defines as it’s proper bounds. And in light of the fact that it is difficult for the other branches of government to serve as a check on the power of the judiciary, Bork argues that the judiciary must check itself, and be accountable to it’s own integrity. It is my view that Bork’s argument is flawed for several reasons. First, I hold the view that it is simply not possible to accurately determine the case specific intentions of the framers of the Constitution. We are not in touch with the day to day reality experienced by the framers, theirs is a perspective we simply cannot hope to obtain.
Any view into the perspective and intent of the framers would likely be colored by our modern understanding of not only the English language, but also our understanding of American tradition. To be sure, there are many historical viewpoints which can be said to have validity, still, we have yet to uniformly embrace one understanding of that history or it’s related truths. This is evidenced by the fact that a dialogue still exists between various groups and persons who hold differing views. If one view were agreed upon we would have no more need for dialogue. Secondly, due to the fact that we are incapable of divorcing ourselves from our own socialization; our “raising” as it were, has a continuing effect on u …