Magazine | January 28, 2013, Issue

The Original Originalist

How Robert H. Bork galvanized a movement

In an article for Fortune magazine in 1971, Professor Robert H. Bork of Yale Law School wrote that “the two fields that I know best, antitrust law and constitutional law, are in states of intellectual chaos.” Striking a theme he was to repeat often over the course of the next two decades, he remarked that law in general was a field of study that “possesses very little theory about itself.” Before he was finished, Bork was to supply a good deal of the theoretical groundwork for a coherent understanding of law and judging.

In that same year, Bork published an article in the Indiana Law Journal with the soporific title “Neutral Principles and Some First Amendment Problems.” Thus was quietly launched one of the most visible and controversial careers in constitutional law; “Neutral Principles” would become one of the most frequently cited law-review articles of the late 20th century. Up until then, Bork had published entirely in his other field of interest, antitrust law, where his efforts ultimately led to a revolution in the judicial interpretation of antitrust statutes. But he had been teaching constitutional law, often with his friend and Yale colleague Alexander Bickel, a liberal who, in the Warren Court years, had come to worry, as did Bork, about how an activist Supreme Court could be restrained. Now Bork tried his hand in the field where Bickel had made his mark, and the result was fairly explosive.

Bork’s solution to the problem of judicial activism was simple and compelling: “A legitimate Court must be controlled by principles exterior to the will of the justices.” In deciding constitutional cases, there is just one place to look for those controlling principles, and that is the Constitution itself. “Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other. The judge must stick close to the text and the history [of the Constitution], and their fair implications, and not construct new rights.”

From the American founding until the early-20th-century rise of the “legal realist” school of thought (which essentially collapses the distinction between judge and legislator), the approach Bork described had been taken for granted in the legal profession. But by the early 1970s, the damage in American legal education and judicial practice had become so bad that Bork was staking out a distinctly unfashionable minority position. What had once been a default, and for that reason intellectually un-self-conscious, could now be restored to acceptance only by being thought through anew, as a fully self-aware alternative to and critique of the reigning modes of judicial activism on the Supreme Court and in the law schools. Until such a restoration took place, as Bork argued in 1984, the law would remain “almost pathologically lacking in immune defenses against the intellectual fevers of the larger society.”

When Bork lamented the “lack of theory” in constitutional law, he was not unaware of the proliferation (which still continues) of “theories” of the Constitution produced by his colleagues in legal scholarship. But he understood, and pointed out with his acerbic wit, that these were not theories of law at all, but something else entirely, something inimical to the rule of law — the “intellectual fevers” just mentioned. As he put it in a 1985 article, “The groves of legal academe are thick with young philosophers who propose various systems of morality that judges must use to create new constitutional rights.” The purpose of all this system-building was simply to reach results that the Constitution does not command and that the American people cannot be persuaded to choose on their own.

#page#Originalism, as it came to be called (though he sometimes called it “interpretivism” or “intentionalism” early on), was a moral imperative because it respected both the Constitution and the democratic decision-making of the people and their representatives. Departures from the original meaning of the Constitution necessarily entailed a kind of lawlessness, effectively disguised as law simply because judges were responsible for it. Hence a restored commitment to originalism would be good for the rule of law itself, for the institutional integrity of the judiciary, and for one of the most important rights in the Constitution — the people’s right to govern themselves where the Constitution leaves them free to do so.

As he served in the executive branch (as solicitor general, 1973–77), and later as a federal judge (on the D.C. Circuit, 1982–88), Bork did not have much opportunity to elaborate his account of originalism beyond some fairly brief articles and published lectures. Yet his arguments were so forcefully and elegantly made, and his judgments on the activism justified by a “living Constitution” were so devastating, that he rapidly became one of the most prominent advocates of originalism in the early days of its revival as a respected school of thought. These were the days of the founding of the Federalist Society (1982), which Bork helped midwife, and of the publication of Raoul Berger’s originalist broadside Government by Judiciary (1977); and the Reagan Justice Department, particularly under second-term attorney general Edwin Meese, became an important center of the growing originalist movement. Growing but still small; in 1982, shortly after he became a judge, Bork wrote in the pages of National Review:

By my count, there were in recent years perhaps five interpretivists on the faculties of the ten best-known law schools. And now the President has put four of them on courts of appeals. That is why faculty members who don’t like much else about Ronald Reagan regard him as a great reformer of legal education.

Bork’s prominence — his obvious intellectual heft, his evident fearlessness, and his record of accomplishment in the academy, in government service, and on the bench — made him a very dangerous man to the left-liberal groups that had come to rely on the courts for policy results. His nomination to the Supreme Court in 1987 prompted them to do their absolute worst, and it was very bad indeed. In an inversion of reality that they would practice again and again on future judicial nominees, they painted Bork, whose theory and practice of judging were truly neutral and apolitical, as a conservative ideologue who would bend the Constitution in service to a right-wing agenda. No charge could have been more untrue; Bork was on record opposing the invention of “economic rights” under the due-process clause just as much as he opposed the invention of “welfare rights.” The Democratic-controlled Senate rejected his nomination by a 58–42 margin.

But if the Left believed that in defeating Bork’s Supreme Court nomination they had killed off originalism, either in the academy or in the public mind, they were very much mistaken. Bork’s televised performance in the Senate hearings, while hardly a display of warmth and fuzziness, gave evidence of intellectual seriousness in this originalism business and alerted many Americans to the truth about what the federal judiciary had been doing to their Constitution. (It also didn’t hurt Bork, or originalism, that many of the sitting senators who opposed him came across as ill-informed and malevolent buffoons.)

After his defeat in the Senate, Bork was finally free to write the book defending originalism that he had clearly been thinking about for years. After resigning from the court of appeals, he went to work on The Tempting of America, whose subtitle said it all: “The Political Seduction of the Law.” A sensation when it was published in 1990, The Tempting was really three books in one. The first part was a history of the Supreme Court, with an emphasis on its episodic and increasing activism. The third and shortest part was a memoir of the struggle over Bork’s Supreme Court nomination. This contained remarkably little score-settling, considering what he had been through, and mostly consisted of a hard-headed analysis of the pathologically political condition into which our constitutional debates had collapsed.

#page#But it was the second part, the center of The Tempting, that was the greatest achievement. Here Bork tackled “the theorists” in the legal academy (both liberal and conservative) whose work had so deformed our jurisprudence, and presented a robust defense of “original understanding” as the only legitimate approach to adjudication under the Constitution.

That phrase was important. In earlier writings, Bork had referred mostly to “original intent” as the method he espoused. But this could give the impression that one must know the minds of particular men in a particular time — the Constitution’s framers, or perhaps its ratifiers — to understand the text where it is ambiguous. Now he refined and clarified his method, and in Tempting he gave this account, one of the earliest statements of what is now called “original public meaning” jurisprudence:

What is the meaning of a rule that judges should not change? It is the meaning understood at the time of the law’s enactment. Though I have written of the understanding of the ratifiers of the Constitution, since they enacted it and made it law, that is actually a shorthand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean. It is important to be clear about this. The search is not for a subjective intention. . . . When lawmakers use words, the law that results is what those words ordinarily mean. . . . All that counts is how the words used in the Constitution would have been understood at the time.

Any other understanding betrays the people who made the Constitution long ago and those who live under it today. From first to last, Bork’s bête noire was the judge who does not know his place, who turns from being a servant of the people’s law to being a usurping ideological master of their fate. In later works, such as Slouching Towards Gomorrah (1996), Bork’s cultural conservatism came to the fore, but he was ever resistant to the temptation to use judicial power for any ideological ends. Although the people in his sights were usually liberals, occasionally he fended off attacks from his right flank by proponents of natural-law judging, such as Harry Jaffa and Hadley Arkes. In my view, he invariably gave better than he got, though he occasionally made remarks in praise of “legal positivism” that he later had to qualify severely. (For his exchanges with these critics, and the other writings quoted in this article, see his 2008 anthology A Time to Speak.)

Bork’s achievement is all around us today. Increasingly in the academy, and almost universally among judges, everyone either is an originalist or feigns being one. The discourse of constitutional originalism dominates Senate hearings on judicial nominations. Not a bad legacy for one lonely Yale law professor in the 1970s.

– Mr. Franck is the director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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