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"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 us. To deny this effect
is to delude ourselves. This is the reason that I hold the view that
impartiality is a myth. Our socialization is integral to our being, we are
humans, not machines, and as such are not immune from our inner stereotypes,
prejudices and beliefs. In addition, Minow points out that true
objectivity would require a "God's eye view" , that is, a view which is
capable of seeing everything at once. This kind of view is obviously
unattainable by humans, and as Minow points out "those who claim it are
untruthful" (Minow, pp. 171). Third, the Borkian view, in it's quest for
impartiality shows a distinct preference for deference to the legislature,
and in doing so fails to be impartial due to the fact that such deference
"favors the statues quo and those benefited by it"(Minow, pp. 176). So in
the attempt at impartiality, Bork would actually create an inherent bias.
Lastly, I do not think that Bork's view serves the interests liberty. The
Borkian view leans toward a kind of inflexibility that cannot possibly be
expanded to cover the expansive needs of the judicial branch of government.
If the Borkian view were adopted, judges would be more like automatons than
judges. They would be forever bound by Borkian originalism, rendering the
judicial branch much less effectual in administering justice that keeps up
with the times in which that administration occurs. What we need then is a
method of Constitutional interpretation that takes into account these facts
and attempts to compensate for them. Such a method is suggested by the
noted feminist legal theorist, Minow.
Minow, would have significant problems with Bork's arguments for
original intent theory as the best method of Constitutional interpretation.
But, she would have problems not only with Bork, but also with any legal
philosopher who purported to have a viable system of constitutional
interpretation. It is Minow's assertion that all methods of constitutional
interpretation are in fact only fronts for furthering individual belief
systems, and that those in power who claim to be interpreting the
Constitution are actually only using the document as a tool for the
legitimization and continuation of their own power. It is her assertion
that judges should simply discard traditional methods of Constitutional
interpretation and recognize that they are in fact involved in politicking.
At this point she asserts that the judge should adopt a new method of
Constitutional interpretation by which to make decisions. She argues for a
recognition of the impossibility of impartiality. She asserts that only by
recognizing our own prejudices can we hope to overcome them. She also
holds that the major problem judges face is "the dilemma of difference"
(Minow, pp. 168). The dilemma of difference is a considerable obstacle to
overcome in Minow's theory. If a certain group, such as women, are given
sick leave for bearing children, this may enforce the idea that women are
different from men and are intended to be child bearers not workers.
However, if women are not given leave time to have children, the interests
and rights of the woman are being infringed upon. The question becomes,
how could a judge in such a case make a fair decision that would protect
the rights of women without further stereotyping them to their detriment.
The solution to the dilemma of difference, according to Minow, is for the
judge to adopt the perspective of the person or group in each case which is
being labeled as "different", and then use that perspective to help him
gain a broader base of information upon which to make an equitable decision.
I think that she is arguing for the legitimization of judicial decision
based on case by case, situational merit, as opposed to legitimizing a
judicial decision based on precedential or historical merit. In short, she
is saying that each case is different, that an entirely different dynamic
exists in every case, so much so that precedent is largely useless and
should be abandoned in favor of decision making based on perspective taking
and the character of the judge. Minow, argues for the validity of
perspective taking for it's usefulness in rendering fair decisions. This
is diametrically opposed to Bork who argues for an absence of empathy for
parties involved. Clearly, Minow's view is an attack on legal abstraction
in favor of recognition of reciprocal realities (Minow172). Minow argues
that the first step toward overcoming the pitfall of supposed impartiality,
is to recognize that we each have our own predilections, and to try to
adopt perspective-taking in an effort to combat unilateral decision making.
In short, she asserts that judges should "stop seeking certainty", and
recognize the existence and multiplicity of "colliding realities" (Minow,
pp. 172). In doing so the purposes of justice will be better served.
However, one may argue that perspective taking can create problems.
For example, if we lower entrance requirements for Black college freshmen
in order that this historically disadvantaged group may become more
represented on college campuses, we take the risk of fermenting the notion
that Black's aren't as smart as whites and so would need lower requirements
(Minow pp.174). Minow would reply that this is a risk to be taken in light
of the possible benefits that can be derived from examining one's own
personal prejudices. She would say that these benefits include a more fair
and relevant jurisprudence. In addition to a thorough examination of our
own stereotypes, Winow suggests that we seek out differences in others and
learn not only to accept but to appreciate those differences. She also
suggests that in the search for difference we will discover our greater
commonalties and thereby slowly begin to intellectually disassemble the
perception of otherness associated with difference and too often with
inferiority. Winow also addresses what she calls the problem of Judicial
passivity. In her view, the plight of the minority, or the different, is
often met with indifference, and judicial passivity.
Clearly, Winow represents the diametrical opposite of Bork in
terms of views concerning the interpretation of the Constitution and the
application of Constitutional principles by the Judiciary. Of the two
views I am more impressed by Winow. As I've said, it seems to me that the
framers wrote the Constitution in such broad terms so as to provide for
flexibility that would serve the needs of liberty. Bork's view of
historical interpretation smacks too much of literalism. I do not think
the needs of liberty are served by rigidity, and thus are poorly served by
the kind of Constitutional interpretation for which Bork argues.
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