BOOKS: A Time To Speak

A TIME TO SPEAK: SELECTED WRITINGS AND ARGUMENTS
By Robert H. Bork
ISI Books, $30, 715 pages
REVIEWED BY DAVID C. ACHESON

This volume is the inaugural title in the ISI Regnery Legacy Project, an enterprise honoring Henry Regnery, widely known as a publisher of conservative titles.

Initially, a disclosure: I am acquainted with Robert H. Bork. For a year, or a bit more, from 1989 he and I were members of a small committee of the board of directors of the Sundstrand Corp., a NYSE-listed manufacturer of aircraft engine components and other products for the aviation industry. The committee met frequently over that period. I did not know Judge Bork prior to this connection and have seen him only once or twice since that time, and have no predisposition from that acquaintance that would affect my opinion of his writings.

It is fair to say that readers looking for material on conservative points of view are unlikely to find more literate and rigorous exposition than appears in this volume. It is also fair to say that these materials are not for the average reader. They are markedly eclectic, reaching from judicial opinions and courtroom argument to essays on anti-trust jurisprudence, constitutional law, conflicts in morality and culture, personal profiles and the merits of the martini cocktail. The volume might well be titled “The Robert H. Bork Reader.” While much of the material is fairly heavy going, it will be rewarding for those who appreciate sophisticated, tightly reasoned argument and elegant style. While sometimes more categorical in his characterizations than I would think appropriate, Judge Bork is a very good writer and, whether one agrees or disagrees with him, one must respect his command of advocacy. While his conservative tastes and philosophy push his advocacy in a predictable direction, he is more than a forceful spokesman of the right in the “culture wars.” On subjects that are distant from that area, subjects like inconsistencies in antitrust law, the phenomenon of the independent investigative counsel, the role of judges in intelligence surveillance and the supremacy of the gin martini, he is persuasive.

The dominant theme in Judge Bork’s writings on constitutional law is the departures of the Supreme Court of the United States and certain other federal and state courts from the original meaning of the provisions of the U.S. Constitution and, as Judge Bork sees it, the chaos judges introduce when they try to justify preferred policy results as springing from the implications of constitutional provisions. “Once the justices depart, as most of them have, from the original understandings of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills.” He does not deal directly with the contrary argument that implied rights and duties are necessarily part of the historical context of the Constitution, since the Founders intended an enduring document for a changing society, not merely principles good for the society of 1787, so the issue is where to draw the line between legitimate implications and none. Judge Bork sees the “invention” of constitutional principles as multiplying needless confrontations in an increasingly pluralistic society and urges that social policies should be chosen democratically by the people’s elected representatives, rather than by the “intellectual elite” (law school faculties, academic commentators and liberal judges).

To Judge Bork, the essence of the “culture wars” is the confrontation of “personal autonomy” with “social authority,” and he favors the latter. But that implies that lines must be drawn. Where, how and by whom? Legislatures are another “elite,” and far from agreed on the answers and, when the inevitable disagreements are litigated, the courts must referee the disputes. Judge Bork likes Justice Joseph Story’s comment: ” Upon subjects of government, it has always appeared to me, that metaphysical refinements are out of place. A constitution of government is addressed to the common sense of the people, and never was designed for trials of logical skill and visionary speculations.” But the common sense of the people is hardly a unitary thing. Can one say that the laws enacted in Massachusetts and California, often very different from the laws enacted in Utah or Wyoming, are not expressions of the common (in the sense of general) sense of the people?

When Judge Bork’s writings move on from the culture wars and “original meaning” of the Constitution to the chapters on antitrust law, his analysis is, in my opinion, more persuasive and less colored by his conservative morality. These pieces will be dry reading for many (I was once and briefly an anti-trust lawyer and my curiosity was reawakened), but his depiction of the confusion and shallowness of many judicial opinions in this field is lucid and acidly critical. He pillories the opinions that seek to protect competitors from the destructive consequences of legitimate competition, and makes the point that, absent evidence of predation, there should be nothing offensive to antitrust jurisprudence in a competitor being driven out of business by better goods and services, and lower prices, of more successful rivals, or forced to match them.

The writings on the phenomenon of the independent investigative counsel struck a chord with me. Though Judge Bork uses some language which one might call partisan and immoderate, I applaud his opinion that, absent careful limitations and judicial oversight, the authorizations of independent counsel can be invitations to abuse, excess and injustice. His Exhibit A is the five-year (1986-1991) and $35 million investigation of the Iran-Contra matter.

Readers will come nearly last upon two charming and moving appreciations of two exceptional men: Alexander Bickel and Edward Levi. While I never knew Professor Bickel, Judge Bork vividly conveys his considerable reputation and intellectual gifts as a forward thinker. I did know Edward Levi when he came to Washington as President Ford’s attorney general, and Judge Bork’s appreciation resonates with me. It captures perfectly Levi’s way of considering all propositions with a half-smile and a friendly skepticism, more interested in the questions and difficulties they raised than in the main issue; gentle, thoughtful, always ready to help one down the path of analysis to second thoughts, doubt and confusion.

Finally, don’t miss the final piece titled “Ambrosia and Amnesia,” an eloquent and informed paean to the gin martini. This brief piece reminded me of my own graduation from bourbon and water to the martini in my middle age, a re-spiriting change from staid and boring to crisp and sprightly. This graceful, appealing coda to far heavier material is a nice touch.

• David C. Acheson is a retired lawyer and foreign policy analyst in Washington.