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Written Law vs. Judges' Views : Controversy on Bork Puts Constitution in Spotlight

July 20, 1987|DAVID LAUTER | Times Staff Writer

WASHINGTON — In an odd coincidence of history, the 200th anniversary of the signing of the Constitution on Sept. 17 will coincide almost exactly with the opening of an extended discussion of one of the Constitution's most enduring controversies.

Starting in mid-September, the Senate will be debating the nomination of Robert H. Bork to the Supreme Court, and a key issue will be how a judge is meant to interpret the Constitution and the relationship between a judge's official role and his own personal views.

To President Reagan, the answers are simple. In a recent Saturday radio speech, he said that judges should "interpret the law, not make it."

For many judges and legal scholars, however, the matter is far more complicated.

The issue "takes the Senate into the middle of an intellectual thicket that has occupied academics and lawyers for about 50 years--the extent to which judicial decision- making depends on the individual convictions of judges on the one side and is a more impersonal, constrained activity on the other," Yale law professor Paul D. Gewirtz says.

Part of the problem is that virtually all judges--whether liberal or conservative, whether self-styled activists or champions of judicial restraint--sincerely believe the decisions they write are based on the written Constitution.

More important, contrary to the view implicit in Reagan's remark, the law--especially at the level of the Supreme Court--is seldom so sharply defined and clear-cut that questions of how it should be interpreted are obvious to all.

As Bork himself wrote in a 1968 article, the Constitution "is least precise where it is most important." Often, Bork noted: "The text of the Constitution, history and precedent . . . suggest that the court must enter a field and yet do not answer the important questions found there."

To guide courts in those all-too-common situations, judges and legal scholars have developed a range of theories about how the Constitution should be interpreted, what the Founding Fathers intended and how that intent should be followed or modified to deal with situations in the contemporary world.

Where Bork fits into that range of legal theories--whether his beliefs fall too close to one fringe--will be a key issue in the impending confirmation battle, senators say.

Law Can't Be 'Pendulum'

Senate Judiciary Committee member Paul Simon (D-Ill.), a Bork opponent, predicted that the Senate will shy away from a nominee perceived as too extreme. "The Senate," he said, "cannot allow the law to become a pendulum swinging back and forth, simply following ideological changes at the White House."

The issue of a judge's role is particularly sharp this time, not only because Bork would be a pivotal vote but also because one of the key elements in his judicial philosophy touches the heart of one of the Constitution's most ambiguous elements: its almost-contradictory effort to enshrine both the will of the majority and the rights of minorities.

The Constitution set up a democracy in which the majority rules, but it also set aside certain areas in which the majority is not allowed to rule. Bork argues that the areas outside majority control--areas in which judges are often asked to overturn decisions of other government officials--must be defined very narrowly lest unelected judges undermine democracy.

Critics say Bork carries this "majoritarian" approach--the impulse to accept whatever a majority wants to do, as reflected in the actions of local or federal legislative bodies--to such an extreme that he would sharply reduce protection given to individual rights guaranteed in the Constitution.

Sometimes It's Clear-Cut

In some cases, the Constitution is reassuringly clear-cut. It plainly says that the President must have "attained to the age of thirty-five years," for example.

But the issues that pull cases to the high court often bring out the tension between majority and minority rights, calling on the justices to decide whether the majority--as reflected in legislative decisions or other public policies--has encroached too far on territory covered by minority rights.

And the justices, whether conservative or liberal, must reach decisions with only the most indirect guidance from the text of the Constitution.

The Fourth Amendment, for example, forbids police from conducting "unreasonable searches and seizures" but does not define what is "reasonable" or even what constitutes a search. The Eighth Amendment forbids "cruel and unusual punishments" but sets out no test. And while those two parts of the Constitution at least have defined subject matters--searches and punishments--other sections appear totally open-ended.

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