The Case against Political Judging

What was once the dominant view of constitutional law—that a judge is to apply the Constitution according to the principles intended by those who ratified the document—is now very much out of favor among the theorists of the field. In the legal academies in particular, the philosophy of original understanding is usually viewed as thoroughly passé, probably reactionary, and certainly—the most dreaded indictment of all— “outside the mainstream.” That fact says more about the lamentable state of the intellectual life of the law, however, than it does about the merits of the theory.

In truth, only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy. Only that approach is consonant with the design of the American Republic.

About the Author

Robert H. Bork

The late Mr. Bork was a distinguished fellow at the Hudson Institute.

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What was once the dominant view of constitutional law—that a judge is to apply the Constitution according to the principles intended by those who ratified the document—is now very much out of favor among the theorists of the field. In the legal academies in particular, the philosophy of original understanding is usually viewed as thoroughly passé, probably reactionary, and certainly—the most dreaded indictment of all— “outside the mainstream.” That fact says more about the lamentable state of the intellectual life of the law, however, than it does about the merits of the theory.

In truth, only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy. Only that approach is consonant with the design of the American Republic.