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.