Sandefur: "Conservatives Adopt Progressive Priorities"

From Timothy Sandefur here. A taste:

Probably the most influential conservative critic of judicial activism was Robert Bork, who explicitly denounced the Declaration and wholeheartedly embraced the Progressive critique of the judiciary in The Tempting of America. The Constitution’s “Madisonian system,” he claimed, provides that “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” This was, of course, the exact reverse of Madison’s actual beliefs; Madison held that nobody is ever “entitled” to rule—and certainly not on account merely of them being majorities. Instead, rulers are authorized to rule, and only within the preexisting rights of individuals. 

But while Bork claimed to recognize that courts have a duty to protect the individual against the majority, he provided no recipe for doing so, and he believed individual liberties should be strictly limited to those specified in the Bill of Rights. True, the Ninth Amendment declares that this is the wrong way to read the Constitution: it says that the fact that some rights are specified must not be interpreted to deny the existence or importance of other rights. But Bork tried to dodge the import of the Ninth Amendment by claiming, falsely, that there is “almost no history that would indicate what the ninth amendment was intended to accomplish,” and even likening that Amendment to an “inkblot.” Actually, Madison, Hamilton, and others wrote at length about what that Amendment meant, making clear that it was intended to ensure that nobody would think the Bill of Rights specifies all the rights that people possess. 

Bork’s rejection of the idea that rights precede the state and limit its powers is rooted in moral agnosticism. “There is no principled way to decide that one man’s gratifications are more deserving of respect than another’s or that one form of gratification is more worthy of another,” he writes.

There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ…. The issue of the community’s moral and ethical values, the issue of the degree of pain an activity causes, are matters concluded by the passage and enforcement of the laws in question. The judiciary has no role to play other than that of applying the statutes in a fair and impartial manner.