Re: Robert Bork

by Roger Clegg

Professor John Harrison was a fellow student with me in Robert Bork’s constitutional law class, and he wrote a wonderful tribute to the man a few years ago, which ends this way:

[Bork's mode of reasoning in an important law-review article] goes to the foundations of the American constitutional system, seeking the basic premises that ground the written Constitution itself. From those premises Bork derives principles about judicial review, among other features of the system. In particular, he derives from foundational premises conclusions about the conditions under which judicial review can be legitimate. That is a genuine constitutional theory, not just a theory of judicial review. It is, in my view, the sound mode of reasoning.

It is astonishing that Bork was able to write that article, especially given the intellectual circumstances of the time. A scholar primarily of antitrust law, without the benefit of the relatively more sophisticated conceptual tools that are available to us, many years later, in thinking about the Constitution, Bork came to the field and, largely on his own, reasoned in the right way when so many were reasoning in the wrong way. While others were taking judicial review for granted, Bork started with more fundamental considerations and came to conclusions that remain powerful and persuasive today. It is a remarkable achievement.

There is a parallel for that achievement with which I will conclude. When he was an old man, Sir Isaac Newton had a number of conversations with his niece’s husband, a fellow named John Conduit. Conduit later wrote a biography of Newton, based in part on those conversations with the great scientist.  One of the notes he made from his talks with Newton concerned Newton’s invention of the reflecting telescope, and the construction of the first such instrument. Conduit’s note reads, “I asked him where he had it made, he said he made it himself, & when I asked him where he got his tools said he made them himself & laughing added if I had staid for other people to make my tools & things for me, I had never made anything.”

Fortunately for us, and for America, Robert Bork did not wait for anyone else. He just did it himself.

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