President Reagan's nomination of Judge Robert Bork to the Supreme Court has set off alarm bells among civil rights activists and liberals. It is really difficult to understand why. For Judge Bork, as a life-long exponent of judicial restraint, is quintessentially dedicated to allowing them the maximum opportunity for convincing us of the merits of their cause.

Judge Bork, like President Reagan, is a believer in giving fidelity to the original intention of the Constitution. He views the Constitution as a set of well-defined legal rules. There is a great deal to be said for this.

The founders of our Republic were trying to make a government out of the shambles of an ineffective confederation of states. They were not assembled in Philadelphia to hold a revival meeting. The founders had very clear ideas about what they wanted; and not all of those ideas appeal to us today. Justice Thurgood Marshall was quite right in saying recently that many of the framers were sexist and slaveholders who intentionally wrote the Constitution with those prejudices in mind. It is valuable both to recognize this and to reflect further on what it means.

The Constitution does not solve every human problem. It cannot. The framers wrote a short document designed to deal with very specific things. They left other matters to be resolved by us the living as needed at the appropriate moment in history. Judge Bork, by all accounts, would allow that. Abortion, capital punishment, homosexual rights, affirmative action will be neither legitimately prohibited nor constitutionally required. The clock will not be rolled back on civilization. But the responsibility for making such choices will be firmly placed in our hands. Liberals should welcome the opportunity.

Each of us will have to take a greater interest in living by the values we have, of giving meaning to the Constitution's aspirations and of convincing the rest of us, through democratic means, that these values are the values which truly reflect America. Sen. Kennedy is wrong. Judge Bork has no interest in telling us what values America must have. Judge Bork's America is what we will make of it.


Attorney Adviser, Office of Legal Counsel

U.S. Department of Justice