Bill Moyers speaks with Attorney General Edwin Meese and federal judge Robert Bork, two outspoken strict constructionists, about judicial restraint and original intent.
BILL MOYERS: Congress cannot act in a way that limits the president’s constitutional powers. He has certain executive powers. He has the power, for example, as commander-in-chief of the armed forces. He has the power to conduct foreign policy. He has the power to execute the laws. Those are things which the president has not only the power, but the mandate under the Constitution to do. And Congress cannot, in an unconstitutional manner, limit him in the exercise of those authorities.
ROBERT BORK: We don’t, by any means, necessarily decide every case the way that — even a judge who’s trying to do what I’m trying to do does not necessarily decide every case the way the framers would have or the ratifiers would have. There’s no way we can do that. The best we can do is at least be grappling with the principle they intended, and to stay out of areas they didn’t want us in.
BILL MOYERS: In this broadcast, two leading conservatives speak in search of the Constitution. Who is Ed Meese? There was a time when the answer to that question might have been, Ed Meese is Ronald Reagan off camera. That’s how close they were. As one associate of the two men put it, Meese knows what Ronald Reagan is thinking before Ronald Reagan does. They go back 20 years together to 1967, when the newly elected governor of California hired Ed Meese as an aid. Three years earlier, Meese, then deputy district attorney of Alameda County, had supervised the arrest of over 700 participants in the turmoil of the free speech movement at the University of California at Berkeley.
He also helped to put down protest on the draft at Oakland and at Berkeley, and Ronald Reagan saw him as a man after his own heart, a law and order man. Together, they took a hard line against student protests. In 1969, when violence erupted again at Berkeley, Reagan and Meese personally inspected the scene.
BILL MOYERS: That same year, after demonstrations at San Francisco State College which Meese said were the greatest threat to academic freedom, Meese temporarily took charge of the university. And his evaluation of tensions at Berkeley led Governor Reagan to declare a state of emergency. Meese became governor Reagan’s closest deputy.
And when Reagan was elected president, Meese was by his side, first as head of the transition team, and then as one of the troika running the White House for the president. At the start of his second term, Ronald Reagan nominated Meese to be Attorney General of United States. The confirmation hearings were long and painful.
BILL MOYERS: There were questions about Meese’s positions on issues, his political activities in the campaign, his personal finances, the allegations that he exchanged patronage for loans, whether his rapid rise in the Army Reserve was due to privilege, and even his forgetting to turn in a gift from the South Korean government of gold cufflinks.
After four weeks of hostile questioning by democratic senators, Meese requested a special prosecutor to investigate quote, “the misrepresentation and baseless charges against himself.” Jacob Stein, the independent counsel, reported no violation of a criminal law and said he had no authority to evaluate Meese’s fitness for public office.
BILL MOYERS: Meese was confirmed as Attorney General by a vote of 63 to 31, and now embarked on a conservative crusade including an effort to repeal the 1973 Supreme Court decision Roe v. Wade, which ruled that women have the constitutional right to an abortion.
EDWIN MEESE: In the course of filing our brief, we also point out that on the basis of the text of the Constitution, on the basis of the history of the interpretation of the Constitution, and good, sound constitutional doctrine, the Roe against Wade case was wrongly decided.
BILL MOYERS: Critics claim Meese is trying to roll back constitutional protections of individual rights. Meese says he is carrying out the people’s mandate.
EDWIN MEESE: Big government, by its nature, does not encourage a sense of belonging. An essential sense of community is far more likely to develop at the local level through state and local politics and through voluntary private associations.
BILL MOYERS: Edwin Meese triggered a national debate on the Constitution when he called for the Supreme Court to determine what the founding fathers meant in framing the Constitution and to use that meaning as the only reliable guide for judgment. But last November, Meese’s campaign for judicial change was interrupted by revelations that President Reagan had been selling arms to Iran and that some of the money was being used to finance a private war in Nicaragua waged by rebels against the government. Meese himself announced the disclosures.
EDWIN MEESE: Certain moneys which were received in the transaction between representatives of Israel and representatives of Iran were taken and made available to the forces in Central America which are opposing the Sandinista government there.
BILL MOYERS: Recently, there have been public reports that agents of the FBI, which reports to the Attorney General, were involved with some of the White House staff responsible for the secret arms deals and the supply of weapons to the Nicaraguan rebels. Questions are also being asked about the Attorney General’s own knowledge of these events and his participation in the awarding of federal contracts to the scandal-plagued Wedtech Corporation. As New York Newsday put it last week, the nation’s top law enforcement officer is now caught in the middle of the Reagan administration’s two largest political scandals. Our interview had been agreed to some time ago to talk about the Attorney General’s views on the Constitution and original intent. That is where we begin.
BILL MOYERS: How do you know what those framers meant?
EDWIN MEESE: Oh, I think that first of all, you look at the Constitution itself. There’s some pretty clear language in the Constitution as to what they meant. For example, when they said the president should be 35 years of age in order to qualify for that position, I don’t think that 200 years later, you can say, well, people are better educated today. They watch television, and so therefore, we can get by with a present who’s 30 years of age.
So the clear meaning of the Constitution from its language is one way of knowing. A second way is you look at what the understanding was at that time of certain basic principles or basic fundamental precepts. What did they mean by the executive power, for example? It was going to be lodged in the president. What did they mean by the judicial power?
EDWIN MEESE: These are obvious, I think, from the writings and the arguments that were used to obtain ratification of the Constitution and the notes of the deliberations themselves. I think it’s important to recognize that when we talk about original meaning of the Constitution, we’re not talking about trying to get back inside the heads of James Madison.
We’re not trying to say that we want everything to be as though we were still living in the 18th century. But there are certain fundamental principles and a certain basic system of government which was created in the Constitution which can be changed if the people want to change it. But the way to change it is through constitutional amendment. It’s not through having a judicial interpretation that does not square with the clear meaning of the Constitution.
BILL MOYERS: But you’ll find many of those farmers talking about the necessity of a strong judicial branch defining what the law means.
EDWIN MEESE: Absolutely, and I believe in a strong judicial branch defining what the law means. But that judicial branch cannot just go unfettered. They have to depend upon some fundamental basic law, a supreme law of the land, if you will, and that supreme law of the land is the Constitution.
BILL MOYERS: But don’t they tell us what the Supreme law is? Don’t they tell us what the Constitution means?
EDWIN MEESE: I think the Constitution itself tells us what it means. As I mentioned earlier, they cannot depart, for example, or should not depart, from certain fundamental principles. Separation of powers, checks and balances, federalism. All of these are basic principles which should be observed by a court interpreting that Constitution.
BILL MOYERS: If you could talk to any one of those men who were at the founding Convention, do you have a favorite?
EDWIN MEESE: Oh, I think I would prefer to talk to James Madison probably, although there are others as well.
BILL MOYERS: What about Edmund Randolph? He was the governor of Virginia at the Convention. He was the first man to occupy the office you now occupy, the first Attorney General. He was a delegate to the Constitutional Convention, he was a powerful force in the ratification of the Convention in Virginia. Listen to what he says and tell me what you think about it 200 years later occupying his position. He said one of the most important things to remember in drafting a fundamental Constitution was this, to insert essential principles only, less the operations of government should be clogged by tendering those provisions permanent and unalterable which ought to be accommodated to times and events.
EDWIN MEESE: I absolutely agree with Edmund Randolph, and I think that’s the genius of the Constitution. They didn’t try to develop a code, if you will, a detailed exposition of laws that would try to encompass everything that was happening then, let alone what was going to happen in the future.
What they did was set out in the Constitution certain basic principles and a basic structure of government. And when we talk about original meaning or original intention, it is those fundamental principles and that fundamental system that I’m talking about which is as alive and applicable today as it was 200 years ago.
BILL MOYERS: Edmund Randolph would say that the William Rehnquists, and the Antonin Scalias, and the Bill Brennans, and the Harry Blackmuns, those people on that court can take these principles and apply them at the time and under the event necessary of the moment, right?
EDWIN MEESE: He would say that they would review subsequent laws and subsequent situations in the light of those basic principles of the Constitution. That’s what Edmund Randolph would say. Now, if it comes as a matter of adapting principles of the Constitution to particular situations later on in a legislative sense, that’s the opportunity, the responsibility of Congress rather than for the Supreme Court to be legislating.
And that raises another whole set of issues as to the proper function. But if it’s a matter of interpreting laws and of interpreting the Constitution as it applies to specific situations, that’s the job of the court. If it’s a matter of legislating to adapt basic principles to modern times, that’s the role of the legislature.
BILL MOYERS: You mentioned James Madison. James Madison opposed the First Bank of the United States because he said the Constitution does not give the federal government power to charter a corporation, but later on when he was president, he signed the bill for the Second Bank of the United States because he said that 20 years of experience in the meantime had shown that the American people accepted the National Bank. In other words, experience, not intent, had turned out to be the interpreter of the Constitution.
EDWIN MEESE: No, I don’t think that I would agree with that experience should be. I think that in the situation there, there were differences of interpretation, and I would be more comfortable if that was something that was decided by a court, for example.
BILL MOYERS: The court decided 17 years ago that abortion was Constitutional. Applying Madison’s principle that time, experience have shown an acceptance on the part of the American people, wouldn’t you let it rest there?
EDWIN MEESE: No, I don’t think so, because I think that that decision of the court — no matter how you feel about abortion, and that’s a subject on which reasonable people might agree — but I think most commentators on the Constitution have felt that number one, that was a legislative issue that should not have been abrogated or arrogated by the court, and secondly, was a matter that is part of those kinds of issues which, under the Constitution initially and throughout most of our history, have been traditionally left to the states.
The kinds of things that affect people in their daily lives, which would be the proper province for states and for legislative determination. For example, in this issue of federalism. Leaving things to the states by no means means that they’re going to go in a conservative or liberal direction.
EDWIN MEESE: States may well do things that I would disagree with, but I think that the Constitution says that certain authority ought to go to the states rather than being usurped by the federal government. In deciding things between whether the court should have the decision or whether it should be a legislative matter, there are a lot of times that I think maybe the court would agree with me more than a Congress might. But if it’s something that is a legislative issue, it should not be usurped by the court.
So I think that a conservative view in terms of the Constitution means preserving the constitutional principles, preserving the constitutional system, and being faithful to that in everything, even when the result of that may go against what you personally believe should be done.
BILL MOYERS: When you look back six years after the Constitution was drafted, Madison and Hamilton were in a furious quarrel over exactly what Article 2 said. Did it establish the limits of presidential power, or did it leave it inherent? Hamilton said it didn’t establish limits. Madison said, yes it did, because if it doesn’t establish the limits, we’re going to have a monarchy in this country. So these two men, both of whom were at the convention, we’re quarreling over what they themselves had decided just six years earlier.
EDWIN MEESE: Yes?
BILL MOYERS: Don’t you think that that leaves it very ambiguous, very up for grabs as to what the meaning was in those days?
EDWIN MEESE: Well, I don’t think that necessarily that means that it was ambiguous. I’m talking now about certain fundamental principles. And there may be issues, or there are issues in fact, which a court may have to decide between the branches. Interestingly enough, the Constitution, in the minds of the court, has left some things to be left to be worked out among the political branches themselves.
And if, for example, a president decides what is the limits of the presidency and he goes beyond what the public is willing to accept, the people can turn him out at the next election. But they do it on the basis of a system set forth in the Constitution. So the Constitution really prescribes the limitations on not having a monarchy, if you will, the comment that you made.
BILL MOYERS: What do you make of where the Constitution says the president shall take care to see that the laws are faithfully executed. What did the framers mean?
EDWIN MEESE: I think they meant just that. That the president has an obligation to be bound by the laws. And he is bound by all of the laws, and that starts with the Constitution itself. He’s bound by the laws that are made pursuant to that Constitution, and he’s bound by the decisions of the Supreme Court that interpret the Constitution and which properly adapt the Constitution to a particular case.
BILL MOYERS: What about the law that says stop giving aid to the Contras?
EDWIN MEESE: Well, I think this is a matter, of course, that is now the subject of legal tribunals within the United States, and so I can’t really comment on that. But I think the more fundamental principle there is that the Constitution is a limitation on the president. It’s also a limitation on the Congress. And if you’ll remember that the Constitution itself says that the supreme law of the land is the Constitution and laws made pursuant to it.
Well, what this means is that just as there are limitations on a president in the Constitution, there are also limitations on Congress. And so Congress cannot arrogate to it powers which the Constitution gives to the court or gives to the executive. Congress cannot limit the executive in ways which are unconstitutional. So this is a matter then, in which all three separate independent branches of the government have to conform their conduct to the basic structure and the basic principles that are espoused in the Constitution.
BILL MOYERS: Are there ever any circumstances where a President is beyond the law?
EDWIN MEESE: I don’t believe so, no. I think a president is always beholden to and bound by the law.
BILL MOYERS: The legislation known as the Boland Amendment was passed by Congress to restrict aid to the Nicaraguan rebels, or Contras, in various ways. The first version in 1982 prohibited the United States from trying to overthrow the Nicaraguan government. In 1985, Congress cut off all aid, direct and indirect, trying to prevent the Pentagon, CIA, and other intelligence agencies from supporting military operations in Nicaragua.
Although Congress subsequently approved $100 million of aid to the rebels, the constitutional question arises from whether the president and the president’s men violated the legislation when it was in effect.
BILL MOYERS: What did Mr. Reagan, the present you serve and served in the White House, mean when he said that the Boland Amendment didn’t apply to him or to the national security staff?
EDWIN MEESE: Well again, this is a matter that will be, undoubtedly, the subject of legal matters on which I may have to take a position, so it wouldn’t be appropriate for me to comment on that specific one. But I think what the president said was that he is under the law and that that law includes the Constitution.
So if, quite apart from this specific instance, if the Congress operated unconstitutionally, passed a law which was unconstitutional to bind the president and which would limit him in an unconstitutional manner from performing his duties under the Constitution, then that’s the kind of thing that would not be binding on a president because it was not a valid law.
BILL MOYERS: Who’s going to decide that?
EDWIN MEESE: Well, it may well be decided by the Supreme Court in a particular state.
BILL MOYERS: You don’t think the president could decide arbitrarily that that law or does not apply to me?
EDWIN MEESE: Well, the present, of course, has to make the first decision so that there would be a controversy. If a present genuinely believes that Congress has acted unconstitutionally, his first step, of course, is to veto the law if he has that opportunity. The second step, of course, would be, if he believes Congress has acted unconstitutionally and that under his constitutional oath he has to operate in a way which is at odds of Congress, then you may be setting up a confrontation that, possibly, the courts would ultimately have to adjudicate.
BILL MOYERS: But in 1981, when President Reagan appointed you counselor of the White House, it was announced that you would have responsibility, among other duties, for the national security staff. Was your understanding at that time that the laws passed by Congress applied to you?
EDWIN MEESE: Yes.
BILL MOYERS: And to the national security staff?
EDWIN MEESE: Certainly.
BILL MOYERS: So you would not claim that any law passed by Congress you could just arbitrarily set aside because you were one of the president’s men.
EDWIN MEESE: Not arbitrarily, but there may be. It’s not beyond the realm of possibility that Congress might at sometime in the future or perhaps at times in the past has passed laws which do unconstitutionally interfere with the prerogatives of a president.
BILL MOYERS: See, I don’t see what the ambiguity is because this administration is on record. Langhorne Motley, the Assistant Secretary of State in 1985, told the Congress that the Boland Amendment did apply to this administration and this administration would honor it. Mr. McFarland just last week said that he thought that the Boland Amendment applied to the National Security Council. Where does the ambiguity come from? Why is there any doubt?
EDWIN MEESE: Again, as I’ve said, I really can’t comment on the Boland Amendment situation. But on the broader issue, Congress cannot act in a way that limits the president’s constitutional powers. He has certain executive powers. He has the power, for example, as Commander in Chief of the armed forces. He has the power to conduct foreign policy. He has the power to execute the laws. Those are things which the president has not only the power but the mandate under the Constitution to do, and Congress cannot, in an unconstitutional manner, limit him in the exercise of those authorities.
BILL MOYERS: But wouldn’t the proper approach then be for the president to say, this law does not apply to me, and just to confront Congress on it and have a show down.
EDWIN MEESE: Well I think that if you had a situation where that was the case, then I think the president should.
BILL MOYERS: But what’s happened is that the administration, the record is now clear, the White House has circumvented, has gone around circumventing the Boland Amendment, setting up its own supply lines to the Contras, lying to Congress, you know the story.
EDWIN MEESE: Well again, I can’t —
BILL MOYERS: Doing the opposite of what they said they would do.
EDWIN MEESE: I can’t comment on the current situation for the reasons that mention, but I think it’s more important to fashion our attention on what are the constitutional separations between the power of Congress in the sphere of making laws. That’s Congress’ only powers is to make laws, and the sphere of the president which is to execute the laws, provide for the security of the country, and so on.
BILL MOYERS: It’s customary for a president to ask his Attorney General for a ruling on the constitutionality of a particular law, of a particular statute.
Happens all the time. We do that to dozens of times a year.
BILL MOYERS: Has the president or anybody from the White House asked you to rule on the constitutionality of the Boland Amendment?
EDWIN MEESE: Again, this is a matter that I really can’t talk about.
BILL MOYERS: You can’t?
EDWIN MEESE: The reason I can’t talk about Boland Amendment is that, at the present time, this is a matter that is before a legal tribunal, its application, and I feel that I am therefore constrained from taking any position publicly unless I have to testify in conjunction with it or that we have to take a position as the government.
BILL MOYERS: Put aside the issue of the Boland Amendment then. I won’t ask you about that again. But talk about presidential accountability. The heart of this system is political accountability. The president is politically accountable, the members of Congress are politically accountable. Isn’t it the president’s responsibility to manage the office of the president, and you were counsel to this president to see that the staff does its job?
EDWIN MEESE: Absolutely.
BILL MOYERS: What if the staff doesn’t do its job?
EDWIN MEESE: Then the president should take action, as President Reagan did, to remove those people who are not doing their job, and to take other actions if they’ve committed offenses to be sure that those offenses are properly investigated to find out if they are criminally or otherwise culpable. It is his job to be accountable to that people. Remember, that’s where the accountability comes. The president is not accountable to Congress. The president is accountable to the people.
BILL MOYERS: The president says my heart and my best intentions still tell me that it’s true that he didn’t trade arms for hostages. And he said, but the facts and the evidence tell me that it is not. Isn’t the conclusion of a statement like that, or of a president saying, I don’t remember, or of a president saying, it deteriorated in the implementation of a certain policy, isn’t the conclusion of that that the president has not taken care to see that the laws are faithfully executed?
EDWIN MEESE: Not at all. In a world of fallible human beings, a lot of people can do things, and this is whether it’s a president, whether it’s the chief executive of a corporation, whether it’s the principal of a school, or whether it’s the head of a broadcasting studio. There are going to be some people who do things wrong, the things you don’t want them to do, people who disobey orders, or people who will not follow policy. The question of whether, then, a president or any other leader is faithfully executing laws or policy as the case may be is whether they take prompt and effective action, number one, to see that that stops, number two, that if a person has done wrong that they’re appropriately punished, and thirdly, to take the steps that it doesn’t happen again. And in the case that you’re talking about here, President Reagan has done all three.
BILL MOYERS: How do you explain that he keeps changing his story? He says first of all, he didn’t know anything about it. Then he says, I don’t remember, I’ll have to wait for somebody else to tell me what I knew, and now he’s talking as if he knew about it all along.
EDWIN MEESE: Well, now you’re getting back into this to Iran Contra controversy.
BILL MOYERS: But I didn’t mention the Boland Amendment.
EDWIN MEESE: I think these current situations, it would be much easier for me to talk about them perhaps a year from now and put them into their constitutional prospective for a couple of reasons. One is, we don’t know all the facts, so it’s very hard to answer some of those questions. Number two, I think that time will have a way of taking some of the emotionalism out of this. And thirdly, I think that they should be viewed in retrospect after all the information is out and when there’s no longer an official position to protect, as I have to, unfortunately, in terms of our discussion. That’s the time, I think, to look at these things in the light of the Constitution.
I think it’ll be a very fascinating study, because I think there are probably things that it will turn out were done wrong by the Congress, there are probably things that were done wrong by people in the executive branch. And I think that obviously the president has said that he wants everybody held accountable for whatever they did.
BILL MOYERS: If the president didn’t think anything was wrong with defying an act of Congress, a piece of legislation, why do things covertly then? If you really believe it’s not —
EDWIN MEESE: Well, again, that gets back into a complex set of reasons that are indigenous to this particular situation. I really can’t comment now, not only from the standpoint of my official position because of national security reasons.
BILL MOYERS: You can’t do it for national security reasons?
EDWIN MEESE: That’s right, there’s some classified information involved in what you’re asking.
BILL MOYERS: Do you treat seriously the articles, the op ed pieces, the editorials saying that if Congress wants to really find out what’s going on, it’s going to have to move to impeach the president, that these are impeachable offenses?
EDWIN MEESE: I haven’t heard that. I understand there are some recent articles. In my mind, I have not seen anything that even starts to come close to an impeachable offense, so I’m not sure what they have in mind.
BILL MOYERS: Mr. Larry Tribe who argues a lot of cases before the Supreme Court against the government as you know is a professor of constitutional law at Harvard, and he writes, the carefully crafted requirement of Article One Section Nine of this Constitution. That all funds raised by the government or its agents must enter and leave the federal treasury and must do so only pursuant to laws passed by Congress would be rendered utterly meaningless if the president, seeing himself not as an agent of the government but as an outsider, could preside freely over the creation of a shadow treasury designed to aid his shadow intelligence network in pursuit of his private schemes.
EDWIN MEESE: Well again, this is a matter involved in the current Iran Contra situation in which I may have to take an official position, possibly a very different one from Professor Tribe, who often takes rather unusual positions, so I think I better not comment on that.
BILL MOYERS: You can’t talk about it, but he can Mr. Attorney General, and he indicated that he didn’t think that he had to oblige himself by the Boland Amendment you can’t talk about.
EDWIN MEESE: The president may feel — and again, looking at this in an abstract way — that a law has been improperly passed by Congress, or that if applied to him, it would be an unconstitutional infringement upon his authority under the Constitution. And that is not in any way saying that he’s defying the law.
BILL MOYERS: But should he just send it back to Congress and say?
EDWIN MEESE: Well, you don’t send things back to Congress.
BILL MOYERS: Veto it.
EDWIN MEESE: Well, he wasn’t — Well, it’s a matter in this case of how the law was applied and how the law is interpreted.
BILL MOYERS: Time says either through his actions or inactions, Ronald Reagan has contributed to the current mood of laissez faire laxness in the country. For all his talk of a return to family values, Reagan has been as permissive as an Aquarian parent over the transgressions of his official family. The Iran Contra Affair exposes a far more disturbing undertone tithe Reagan administration the belief that some laws are little more than inconvenient pieces of paper.
EDWIN MEESE: I think that’s just absolutely flat wrong. Time has never been a supporter of this administration or indicated any approval of the president, and I think that that’s just editorializing in the guise of news, which is just absolutely wrong.
BILL MOYERS: But shouldn’t a true conservative administration be more faithful to the spirit of the law, even?
EDWIN MEESE: I think this administration is. I think we’re absolutely faithful to the spirit as well as the letter of the law. I think to argue otherwise it’s just at odds with the facts.
BILL MOYERS: You seldom see this courtroom or hear that much about it, but next to the Supreme Court just a few yards up Constitution Avenue, this is perhaps the most powerful courtroom in America. It’s the Court of Appeals for the District of Columbia, our nation’s capital. So the judges who sit here rule on some of the most significant and controversial issues rising from the conduct of government itself.
Until five years ago, this court was dominated by liberal judges, then President Reagan appointed Robert Heron Bork to this bench and things began to change. Bork was one of the foremost advocates of conservative jurisprudence, and the 150 decisions he has made since his appointment have him the chance to practice in this courtroom what he had preached so long in the classroom at Yale University.
BILL MOYERS: He and other conservatives since appointed to the court have tilted it to the right. We’ll talk to him about his experience here and what he thinks now from the inside about interpreting the Constitution. Judge Bork says he was just another New Deal liberal when he entered law school at the University of Chicago in the late ’50s.
There, he was influenced by some of the leading conservative theoreticians of the law. Bork went on to practice corporate law and write about antitrust matters. In 1968, while teaching at the Yale Law School, he endorsed Richard Nixon in an article in the New Republic. Four years later, President Nixon personally chose Robert Bork to be Solicitor General.
BILL MOYERS: Taking leave from teaching, Bork joined the Department of Justice in February of 1973, delighted, he said, to be there. On a Saturday night in October of that same year, the job no longer looked so inviting. President Nixon wanted to fire special prosecutor Archibald Cox, who was investigating the White House crimes called Watergate.
Cox was trying to get the White House to turn over as evidence tapes of the president’s conversations. The top two officials of the Justice Department refused to carry out the president’s orders to fire Cox. One quit, and the president fired the other. Bork, now acting Attorney General of the United States, carried out the president’s orders and dismissed Cox.
ROBERT BORK: The president has the right to discharge any member of the executive branch he chooses to discharge. I further thought that if I did not do it, but resigned or was discharges, that the pattern I set after Elliot Richardson and William Ruckelshaus had refused would probably lead to mass departures in the Department of Justice, leaving the department in a chaotic condition and badly crippled.
BILL MOYERS: Two years later, Bork returned to Yale and taught there until 1981, when President Reagan summoned him back to government, this time as a member of the Court of Appeals for the District of Columbia. Judge Bork’s name keeps cropping up as a possible nominee to the Supreme Court, and one of the leading conservative polemicists in Washington, Patrick Buchanan, recently suggested that nothing would please his team more than if Providence and Ronald Reagan combine to make it happen.
ROBERT BORK: For his part, Bork doesn’t discuss such possibilities, but he doesn’t deny that he is still the man they thought he was when he left the classroom for the courtroom. A firm believer in judicial restraint when it comes to the Constitution.
BILL MOYERS: When I came in, I noticed this. The Solicitor General, Department of Justice. What’s that all about?
ROBERT BORK: When I was appointed solicitor general, the students in my constitutional law class gave me that.
BILL MOYERS: To protect you from the Supreme Court?
ROBERT BORK: I think they were making a comment about my views.
BILL MOYERS: They considered you a hard hat.
ROBERT BORK: Basically. That was a sort of a revolutionary time in the universities.
BILL MOYERS: When I ask many of my conservative acquaintances with whom they would most like to spend time talking about the Constitution in this bicentennial year, time and time again they said, Robert Bork. You clearly are the standard bearer of conservative thought as far as the law goes today. What does conservative mean here?
ROBERT BORK: I think what they mean is somebody who thinks that judges should very carefully try to follow the original intention of the Constitution and not be creating new rights or new powers in the Constitution.
BILL MOYERS: Creating new rights that many people think are not in here, either explicitly or inherently?
ROBERT BORK: Well, in conservative political circles, the conflict is over whether judges should expand values that conservatives like as opposed to values that liberals like. And that’s why we have conservative activists as well as liberal activists.
So some conservatives are not against activism as such, they’re against liberal activism.
I think the question of judicial restraint runs right across those values. That is, it’s neither liberal nor conservative.
BILL MOYERS: Restraint requires you to do what?
ROBERT BORK: To stick to the law as it was intended to be applied.
BILL MOYERS: Judge Bork is one of 11 judges regularly sitting on the circuit court of the District of Columbia, one of 13 appellate courts covering the country. This is a training ground for the Supreme Court. Four present justices, Thurgood Marshall, Harry Blackmun, John Paul Stevens, and Antonin Scalia served there first. The judges sit in panels of three picked by the clerk of the court.
BILL MOYERS: What does it say about justice that very often the decision that gets made depends upon whether, by random, two conservatives wind up on that three man panel or three person panel, or two liberals wind up on that three person panel?
ROBERT BORK: We do have a corrective in the sense that, if most of us think a case is wrong and important, we can hear it en banc, which means the entire court, all 11 of us right now, will sit and rehear it.
BILL MOYERS: En banc, that means?
ROBERT BORK: On the bench. It’s the bench, all of us.
BILL MOYERS: All of you at once?
ROBERT BORK: Well, usually it’s heard by all of us only when we think a three judge panel has been quite wrong and that the legal principle involved is important.
BILL MOYERS: So you can get reconsideration of the case already decided by a three person panel?
ROBERT BORK: Oh yes. We vacate the judgment of the three person panel and rehear the matter anew.
BILL MOYERS: Does that give confidence in the people out there to the process of justice, that it is so, as you say, unmechanical, so random, so determined often by the personal character of the judge or the judges.
ROBERT BORK: I don’t know any cure for it. Judging is not mechanical. There are no hard rules about it. It’s a question of balance, temperament, judgment.
BILL MOYERS: Did you ever think when you were growing up that you’d be a judge?
ROBERT BORK: Never.
BILL MOYERS: What’d you want to do when you were a kid?
ROBERT BORK: Be a journalist.
BILL MOYERS: You were spared a fate worse than this bench, I can assure you. You decided a case not long ago which caused some of your own fellow conservatives to storm in indignation that you had become a judicial activist. You remember it, Ollman v. Evans?
In 1979, a professor of political science, Bertell Ollman filed a $6 million libel suit against newspaper columnists Evans and Novak. They had charged that Ollman desired to use the classroom as an instrument for preparing what he calls the revolution. Judge Bork, speaking for the full court, found the columnist’s words protected by the First Amendment.
BILL MOYERS: As a journalist, I happen to applaud the opinion you wrote. I thought it was one of the wonderful opinions that occasionally come down.
ROBERT BORK: Journalists tend to like that opinion.
BILL MOYERS: Journalist do really around that. But I’m intrigued by some of the things you said. You said the case had to be considered in light of a remarkable upsurge in libel actions and a startling inflation of awards being made to people who win those libel cases. In other words, you were concerned with what was happening out there in society.
You have to be. I mean, if you’re going to protect a constitutional provision, a constitutional freedom, you have to know what’s threatening it out there in society.
ROBERT BORK: You have to be. If you’re going to protect the constitutional provision, the constitutional freedom, you have to know what’s threatening it out there in society. Now — and I think I said in that opinion. The people who wrote the Fourth Amendment to stop unreasonable searches and seizures by the police didn’t foresee electronic surveillance. But the value that they were trying to protect is threatened by electronic surveillance.
BILL MOYERS: The value being?
ROBERT BORK: The privacy of the home or the business office.
BILL MOYERS: And the value in this?
ROBERT BORK: In this case is a free and robust political debate, free press.
BILL MOYERS: Why did the conservatives who criticized you for that get so enraged?
ROBERT BORK: I’ve refrained from asking them.
BILL MOYERS: Well, I’ll tell you. They said that you had done the very same thing that Justice Earl Warren had done on Brown v. Board of Education. You’d looked out and seen a social problem that you thought could be addressed through a particular case when you should’ve settled that case on its merits without regard to the larger social problem. This made you an activist.
ROBERT BORK: That, if I may say so, I regard as nonsensical. If you have a threat to a provision of the First Amendment that is arising from a change in law — and libel law has been changing — I see no reason why it’s activist to protect the free press from that change.
BILL MOYERS: But wouldn’t a true judicial restraint have said, there is a problem out there, but it’s for the legislature to resolve. If there are too many cases, if the damages are too high, the legislature should resolve that, not the court.
ROBERT BORK: But at that point, if you say that, then you’re saying, the constitutional provision which guarantees the freedom of the press is protected by the legislature and not by the court, and that’s wrong. The court has a function to perform to protect the things the Constitution tells it to protect.
BILL MOYERS: And one of those is…
ROBERT BORK: A free press.
BILL MOYERS: Do you think, Judge, that the framers of the First Amendment saw libel actions as a major threat to —
ROBERT BORK: I doubt it, but the nature of the libel action has changed over the years. There are many more of them now than there ever were. It’s a recent upsurge. And I think some of them, as I said in that opinion, are brought more to punish the journalist than they are really get recompense for real damage.
BILL MOYERS: But the value that is in the First Amendment, the value of free discussion, that is threatened by something, if I read you correctly, that the framers may not have foreseen. The libel rights.
ROBERT BORK: That’s right, just as the privacy of the home was threatened by electronic surveillance.
BILL MOYERS: So that’s what you’re trying to do. You’re trying to find the original value in this document, even though the threat to it today may be something wholly out of their world, out of their vision, out of their scheme of things.
ROBERT BORK: Of course. If we confined ourselves to threats that the framers knew about, that document would gradually become meaningless.
BILL MOYERS: So when you go back to find original intent, you’re not looking for wiretapping or libel suits. You’re looking for…
ROBERT BORK: The process or the value that they were trying to protect.
BILL MOYERS: I think you said somewhere that the text is often the most vague where it’s the most important.
ROBERT BORK: Where the value is most profound, it is likely to be stated in quite general terms. And that poses, for every judge, the problem at what level of generality do you state the value you’re trying to protect. And that becomes a difficult question.
BILL MOYERS: What is due process?
ROBERT BORK: Let me just say this. We don’t by any means necessarily decide every case the way — even a judge who’s trying to do what I’m trying to do does not necessarily decide every case the way the framers would have or the ratifiers would have. There’s no way we can do that. The best we can do as at least be grappling with the principal they intended and to stay out of areas they didn’t want us to.
BILL MOYERS: Why are the principles expounded by the framers, founders more important than our values today? Why should we be looking for their values?
ROBERT BORK: Well, for two reasons. One is, that document, the Constitution, is accepted as law. I don’t know how it can be law unless we’re applying it the way it was intended. If we’re applying our values, it’s not law. The judge is just ruling on his own. That’s the reason for using their values. The other thing is, they laid down values that are necessary to any society that calls itself free. I don’t know of anybody who objects. Nobody wants to cut back that Bill of Rights.
BILL MOYERS: What are those values that are important to society that calls itself free? The fundamental values.
ROBERT BORK: Free speech, free press, freedom of religion, security in your home and your office against government intrusion without a good cause, right to a jury trial, it goes on and on.
BILL MOYERS: Do you think that the founders had a coherent theory of free speech?
ROBERT BORK: I think no. I don’t think so. I think they had a core idea of what they wanted, but not an overall theory of it, no.
BILL MOYERS: Why do you think they provided protection for speech as distinct from conduct?
ROBERT BORK: Speech is essential to running a republican form of government. Even if there were no First Amendment, you’d look at the structure of that Constitution which envisages elections and so forth, and you’d say, without speech this thing isn’t going to work. It has to be protected.
BILL MOYERS: You think they were dealing primarily, at least in their frame of things, with the speech of republic, the speech of the political universe that we operate in as citizens?
ROBERT BORK: Sure, but in addition to that, I’m sure they recognized that other kinds of speech, speech about moral issues, speech about moral values, religion, and so forth, all of those things feed into the way we govern ourselves. So it doesn’t have to be explicitly political speech to be protected.
BILL MOYERS: So novels —
ROBERT BORK: Scientific speech —
BILL MOYERS: Art.
ROBERT BORK: I think you’re getting towards the outer edge there, and where you draw the line would be a case by case basis.
BILL MOYERS: But surely art is sometimes the most political of all expression.
ROBERT BORK: Oh, it can be. It can be.
BILL MOYERS: In fact there was a case that you wrote the opinion for recently here in Washington wasn’t there, when an artist wanted to put a poster on the Metro Authority bus?
ROBERT BORK: No, on the subway station.
BILL MOYERS: On the subway station.
BILL MOYERS: The artist, Michael Lebron wanted to make a political statement with his montage by displaying it in subway stations in the nation’s capital. He tried to buy space, but the Transit Authority refused to accept a poster critical of President Reagan. Lebron sued, claiming his First Amendment right of free speech was violated. Bork wrote the opinion agreeing with the artist. Now, the Metro authorities didn’t want to rent him the space?
ROBERT BORK: That’s right.
BILL MOYERS: But your court said…
ROBERT BORK: They had to.
BILL MOYERS: Why?
ROBERT BORK: Well, because they were renting space to other kinds of ads, and indeed as I recall, I think some other kinds of political ads. For one thing, we didn’t think anybody would take the photograph to be anything other than a comment. We didn’t think anybody would think it was a real photograph because you could see that it was put together. But quite aside from that, we didn’t think the Metro government really had any business deciding what kind of speech could be put up. It’s just not an agency that ought to have that kind of responsibility.
BILL MOYERS: And the core value there was?
ROBERT BORK: Was political speech.
BILL MOYERS: Even though expressed by an artist?
ROBERT BORK: Yes, by a photographer, yes.
BILL MOYERS: But you see, the question that arises is, where does the court draw the line? Where do you draw the line? You say art’s getting to the outer edges, but you back up on this one because there’s a political quotient.
ROBERT BORK: Oh sure. When you said art, I was thinking about some kind of a form of sculpture sitting in a courtyard or something.
BILL MOYERS: Must it have some political overtones?
ROBERT BORK: Not necessarily. And what you’re going to learn in a moment is that I have no more coherent a theory of speech than the framers did.
BILL MOYERS: What about pornography?
ROBERT BORK: I have never understood that to be protected by the intention of the framers.
BILL MOYERS: Why?
ROBERT BORK: It seems to me a form of entertainment, a rather vicious form of entertainment. But aside from its viciousness, I think it’s a form of entertainment and doesn’t feed the community of ideas in any way. I mean, if we’re talking about human activity, all kinds of things human beings do express themselves or they enjoy just as much of pornography. We don’t protect them.
We don’t say businessmen have a First Amendment right to agree on prices. We don’t say the mob has a First Amendment right to make a hit contract. We know that there are all kinds of things that are speech but are not protected.
BILL MOYERS: What does this do to radical speech?
ROBERT BORK: It frees it.
BILL MOYERS: As long as one doesn’t call for the use of —
ROBERT BORK: No, you could call for the overthrow of the government, but as long as nobody was about to act on it.
BILL MOYERS: What makes you nervous about speech that advocates the possibility of violence? Jefferson said a little revolution now and then may be good for us.
ROBERT BORK: Yeah, he did say that. Madison didn’t say that.
BILL MOYERS: Which framer do you find —
ROBERT BORK: Washington didn’t say it. Well, Jefferson wasn’t at the convention. But I am not particularly nervous about calls for violence Unless they become very widespread so that one feels that there’s a real danger of it.
BILL MOYERS: Well, I’m not for calls for violence myself. There does seem to be something to be said for the fact that the man who’s driven to call for violence perhaps has grievances that have to be looked at by the political society, and that the greater danger might be in restricting that speech unless we do look at.
ROBERT BORK: That’s right. I would be very loathe to see a law that said any time you mention violence, you can be punished. I think that would be a very, very bad law.
BILL MOYERS: How obliged do you feel as a court of appeals, one step below the Supreme Court, to follow the precedents that the court has issued over the decades?
ROBERT BORK: I feel entirely obliged. This is a system that only works if lower court judges accept the Supreme Court’s precedent. You don’t have to accept them without criticism, that is, law is not a military systems, it’s an intellectual system. And although you’re expected to follow, you’re entirely entitled to give your reasons why you think it’s a mistake, or it should be modified, or something, as long as you follow and decide the case the way the Supreme Court wants you to.
BILL MOYERS: But you have doubts about what the court has said concerning the right of privacy as its developed over the last 25 years, have you not?
ROBERT BORK: The right of privacy is undefined. You don’t know where it will apply, or when, or how. Nothing inherently restricts the judge to doing certain things and not doing other things. In fact, if you look at those constitutional guarantees, you might better call them rights of autonomy, rights of freedom, and derive a general right of freedom that applies even where no provision does. Now that is just complete freedom in a judge’s hands, and that’s why I think the judge should stick to the provisions of the Constitution and not to generalize rights that are not to be found in any provision.
BILL MOYERS: What the Supreme Court has done in one case after another from Griswold on down is to establish a series of precedents that built upon the first one and gradually enlarged the idea of zones of privacy until millions of people and a lot of judges accept them. So doesn’t that become the precedent that is binding on a lower court judge?
ROBERT BORK: Oh yes. No, the fact that I may think that the reasoning is not ideal does not mean it isn’t binding upon me. It is.
BILL MOYERS: But in that very controversial case that you’ve been much criticized for, the Dronenburg case, a Navy petty officer who was dismissed from the Navy after it was discovered he was a homosexual even though he had a good record. Your court with you writing the opinion said that the Navy did not violate, as he claimed, his right of privacy. And you weren’t applying the precedents of privacy that the court has found.
BILL MOYERS: James Dronenburg served in the United States Navy as a linguist and cryptographer. Although he had a good record with several commendations, a Navy inquiry board recommended his discharge for quote, “misconduct due to homosexual acts.” Dronenburg sued, charging the Navy had violated his constitutional rights of privacy and equal protection of the law.
ROBERT BORK: If you look at the precedence of the right of privacy up to that point, you will not find anything like protection for homosexual conduct. Now, what they were really dealing with, largely, the right of privacy began to focus on the family, on rights of procreation and so forth and so on. There was nothing in those decisions — Those decisions would have to have been extended considerably to reach the question of homosexual conduct in the Navy.
It was not, by the way, a case of just homosexuality. It was homosexual conduct in the Navy. And I didn’t extend it. And apparently, the Supreme Court agrees. The fact is, the Supreme Court has told us privacy applies here, it doesn’t apply there. They have never given us an explanation that enables me to know why for sure. So you’re asking the wrong man. About why it goes so far and no further.
BILL MOYERS: And you were saying the Constitution hasn’t spoken yet because the Supreme Court has not taken the rule of privacy all the way to homosexuals.
ROBERT BORK: It hadn’t been, and in fact, it had enunciated a principle that I could see that would extent to homosexual conduct.
BILL MOYERS: How do we find fundamental rights in the Constitution?
ROBERT BORK: That’s a very difficult topic. I really tend to stick with the particular provisions of the Constitution rather than calling some things fundamental and other things not.
BILL MOYERS: Do they have to be spelled out in here?
ROBERT BORK: They have to be fairly implicated in there.
BILL MOYERS: Implicated meaning suggested?
ROBERT BORK: At least, sure.
BILL MOYERS: What about the Ninth Amendment, which says the enumeration in the Constitution of certain rights, the setting down of certain rights, shall not be construed to deny or disparage others retained by the people.
ROBERT BORK: The Ninth Amendment is very interesting, and you’re suggesting that judges are thereby given a warrant to create new rights. That’s extraordinary for two reasons. The first is, in all the uproar over the Supreme Court’s performance in the early years of the Constitution including the attack on the court’s power to declare things unconstitutional, nobody ever mentioned the 9th Amendment.
They didn’t think of the Ninth Amendment as giving this power. It’s quite clear. Recent research suggests that what the Ninth Amendment may have been intended to do was to say that the federal government could not override the guarantees of freedom in the state constitutions. But as a general warrant for judicial power, clearly the framers didn’t think of it that way.
BILL MOYERS: That certainly shows the difficulty of reading original intent, doesn’t it? Oh, here was a Ninth Amendment written in here, and you’re saying they all ignored it.
ROBERT BORK: They do.
BILL MOYERS: So do you take the intent of the men who wrote the Ninth Amendment into the Constitution which sort of leaves up to other people the definition of what rights are, or the intention of those who decided the first cases which ignored the Ninth Amendment?
ROBERT BORK: I don’t think the people who wrote the Constitution had any intention of giving that broad power to judges. One thing you discover in the debates at the Convention and the ratifying conventions and so forth is that they didn’t think of the judiciary as being an enormously powerful body, as they would have had to if they thought the judges had a power to make up new rights.
They worried about systems of representation, voting, and so forth as the primary guarantees of freedom. They thought of the judiciary as a relatively insignificant body. For example, if you look at the Federalist Papers, Hamilton quotes Montesquieu to the effect that next to the legislature and the executive, the power of the judiciary is nothing. The question collective intent has to be faced every time you construe the Constitution, every time you have a statute, every time you look at the Supreme Court opinion, and it’s always difficult.
BILL MOYERS: And it finally comes down to those nine people up on the hill and you.
ROBERT BORK: Yeah, most cases never get beyond us to the Supreme Court. For 95% of litigants, we’re final.
BILL MOYERS: You’re the last word.
ROBERT BORK: Yeah. The Supreme Court just can’t handle the cases coming out of all the Court of Appeals.
BILL MOYERS: That gives you enormous power to say what this means.
ROBERT BORK: Oh yes, but if we go too far astray, that’s the case they’ll take up there.
BILL MOYERS: And you’re saying, if I hear you correctly — tell me if I don’t — you’re saying that even though the Ninth Amendment says there are certain rights that are still left out there, your job is not to read what those rights are until the Supreme Court itself has spoken.
ROBERT BORK: I would suggest the Supreme Court shouldn’t do it either. I think what the Ninth Amendment meant was probably that the federal government should not interfere with the rights retained under state constitutions and laws.
BILL MOYERS: And that went the way of the Civil War and the amendments that came the Civil War.
ROBERT BORK: The Ninth Amendment has just, until recently, been ignored.
BILL MOYERS: What does it say to you that all these years later, we discover something in there that had been in the shadows?
ROBERT BORK: What it suggests to me is what we’re discovering now really wasn’t there.
BILL MOYERS: And then what does that say about the discovery of new rights?
ROBERT BORK: That suggests we should not make up new rights. We should protect the ones that are specified.
BILL MOYERS: How would you have us think about the Constitution?
ROBERT BORK: There’s kind of a feeling in a lot of people that, if it’s unwise or unpleasant, it’s unconstitutional, or if it’s wise and pleasant, it is constitutional. That’s just not the case. So I wish they knew the limitations. The Constitution doesn’t cover everything, and there are vast powers in there for elected representatives that the Constitution doesn’t speak to, and I wish people understood that.
BILL MOYERS: What about the judiciary?
ROBERT BORK: I wish some of them understood it too.
This transcript was entered on April 27, 2015.