Some Thoughts on Political Structure as Constitutional Law

Certainly I am going to endorse everything that Professor Levinson has said about Professor Lynch’s wonderful book. It establishes beyond question that there was no real consensus among the so-called founders about what the Constitution meant and thus, Professor Levinson is undoubtedly right that constitutional law should be taught as an ongoing negotiation. I will add one more reason why this must be the case. We talk about constitutional law, but law divorced from sanction is not law at all. It is perhaps scholarship, but unless constitutional law has a sanction it is nothing more than rhetoric; the ability to sanction a judgment depends completely on the will of the current political majority. The courts have no power to enforce a judgment absent that will. And thus, the very question of intentionalism in constitutional law seems to me to be a bit illogical. During the five decades I have been a lawyer, original intent, or strict construction, has been advanced—primarily by critics of the federal judiciary—as the only sound constitutional doctrine. In particular, critics of an allegedly activist Supreme Court have most frequently taken umbrage at the Supreme Court’s recognition of certain individual autonomy interests as constitutionally protected from regulation by the democratically elected branches of federal or state government. Perhaps the most influential of them has been Judge Robert H. Bork, whose nomination to the Supreme Court in 1987 produced extended hearings by the Senate Judiciary Committee on the appropriate interpretive posture of judges faced with a constitutional law argument. With considerable erudition, Bork passionately espoused the view that any approach other then the search for original intention of the constitutional draftsmen was illegitimate because it placed judges in the role of lawmakers rather than neutral arbitrators.