| 摘要 | The Democrats owe Robert Bork an apology. You remember Bork: the brilliant judge and legal scholar who was so savagely attacked when nominated in 1987 by President Reagan for the Supreme Court that his name became a verb. “Bork: [to] attack viciously a candidate or appointee, especially by misrepresentation in the media.” (Safire’s Political Dictionary.)
What was Bork’s crime? The charge was that he is an ideological extremist, “outside the mainstream” of normal American thinking. Why? Because Bork insists on interpreting the Constitution according to the “original intent” of the Founders. Not to reflect the fashion or mores of the day. Not to accord with what judges think the times demand.
That way lies lawlessness, argues Bork. It gives judges a license to do essentially anything they want. Bill Clinton may believe that words mean what we want them to mean. Bork believes that in the Constitution words mean only what the Founders meant them to mean.
Why was this view so abhorrent to his enemies, and to Democrats in particular? Because it put Bork on the wrong side of received opinion on many inflammatory issues, most notably abortion. It is obvious that the Founders (and those who wrote the Civil War amendments) never had the remotest intention of making abortion a constitutional right. That is why Bork vigorously opposed Roe v. Wade.
Presto. Within hours of Bork’s nomination, Sen. Edward Kennedy was on the floor of the Senate charging that “Robert Bork’s America is a land in which women would be forced into back-alley abortions” among other travesties (“blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution,” etc.).
That charge was a calumny. Justice Bork could not have outlawed abortion. Just because something is not a constitutional right does not mean that it must be prohibited. The states would still have every right to legalize abortion–as indeed they were doing, one after another, before the Supreme Court preempted the whole process in 1973.
Nonetheless, Kennedy’s charges stuck and spread. Bork’s opponents succeeded in portraying him as a reactionary zealot. His nomination was rejected.
Fast forward now 12 years. And look who are “original intentists” now. The Democrats.
When Republicans floated the idea of a “finding of fact” in the president’s impeachment trial to precede a vote on removal from office, Senate Democrats rose as one to protest. Why? Because, said presidential spokesman Joe Lockhart, citing among other authorities Robert Bork, “it goes around the Constitution.”
But how to interpret the Constitution? Does it not grow, according to “mainstream” constitutional interpretation, to fit the needs, the beliefs, the habits of a different time? Isn’t it reactionary–Borkian–to be frozen in an interpretation of the Constitution 210 years old?
No longer, it seems. Sen. Tom Harkin reached back to Alexander Hamilton in Federalist No. 66 to support his view that a “finding of fact” would be extraconstitutional and dangerous. Sen. Byron Dorgan went Harkin three better, hauling in not just Hamilton but Mason, Franklin and Madison to buttress the same point.
Moreover, for months Democrats have opposed impeachment on the grounds that Clinton’s offenses do not rise to the level of “high crimes and misdemeanors” as intended by the Framers. “The intent of the Framers” declared Rep. Sheila Jackson-Lee, was to impeach only for “acts to undermine or subvert the government.” Said another Democratic congressman: “The Framers of the Constitution intended that the impeachment power be used only when the nation is seriously threatened.” The mantra was repeated a hundred times.
Hypocrisy? Of course. Yet hypocrisy, as the famous La Rochefoucauld adage has it, is the homage that vice pays to virtue. By their newfound fealty to the theory of “original intent,” Democrats are finally paying homage to Bork.
Now born-again “original intentists,” Democrats find themselves saying that if you want to know what the Constitution permits and doesn’t, what it means and what it doesn’t, there really is, in the end, but one way: Look to the meaning and intent of the Founders. Read the Federalist Papers. Consult Madison’s notes on the Constitutional Convention. Try as best you can to learn the mind of those who wrote the words themselves. And stray no further.
Last week Bork himself came out publicly against a “finding of fact.” He was not the least bit embarrassed to find himself on the Democratic side of this issue. He has stuck to principles throughout. That is more than can be said for the Democrats, who now, consciously or not, embrace the very “original intent” theory they 12 years ago had proclaimed the end of civilization.
Terribly sorry, judge, for that unpleasantness in ’87. We are all Borkians now. |
