Happy Anniversary!
By Via Roy, I see that conservatives are whining about the great day 20 years ago on which arch-reactionary Robert Bork was justly rejected by the Senate. First if all, it’s worth repeating that in this case the Senate functioned as it should, focusing on constitutional philosophy rather than trivial details, and that attempts to turn “Borking” into a pejorative notwithstanding, it’s ridiculous to argue that the President can consider ideology in nominations but the Senate cannot consider in in confirmation.
In addition, for the occasion it’s worth once again excerpting Bruce Ackerman’s devastating review of Bork’s shoddy, transparently outcome-orietnted attempt to defend his “originalism” in The Tempting of America:
Bork has succumbed to his own temptation. Proclaiming his fidelity to history, his constitutional vision is radically ahistorical. Pronouncing an anathema on value relativism, his jurisprudence brings skepticism to new heights. Insisting on the sharpest possible line between law and politics, his bitter concluding section transforms a legal treatise into a Red-baiting n3 political tract. Tempting reveals that Bork’s ordeal has transformed him into a human type that I, at least, had previously encountered only in Dostoyevsky novels. Mutatis mutandis, he is America’s Grand Inquisitor — grimly excommunicating heretics in the name of a Cause he has inwardly betrayed.
[…]
The historical vacuum at the core of Bork’s orthodoxy may seem surprising, since the man spent much of his life as a professor at Yale and had the time to engage in the disciplined historical reflection that his orthodoxy demands. The mystery dissolves when one recalls that Bork’s principal academic specialty was antitrust, not constitutional law. He did not win national leadership in this field by dint of historical research, but by championing the Chicago School of Economics’ notably ahistorical and theory-laden approach to antitrust. Few readers of Bork’s major book, The Antitrust Paradox, would guess that its author would next try to make a name for himself by championing the use of historical methods against the seductions of abstract theory. Indeed, one question left unresolved in Tempting is the extent to which Bork himself is aware of the tension between the ostentatiously theoretical methods of Paradox and the putatively historical concerns of Tempting.
Particularly telling is Bork’s remarkable dismissal of the Ninth Amendment, and its obvious implications for his jurisprudence:
Perhaps we should be grateful, then, that Bork tries to decipher the Ninth Amendment without an independent examination of extrinsic sources. Sticking to the text, he reports that it “states simply, if enigmatically, that ‘[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'”
The puzzle here is why Bork should find the text “enigmatic.” It seems, almost preternaturally, to be written with him in mind. What Bork is up to is precisely to use “the enumeration in the Constitution, of certain rights” to “disparage” the idea that there are other constitutional rights of fundamental importance. I especially admire the Framers’ choice of the word “disparage.” I can think of no better word to describe Bork’s general tone. Nonetheless, Bork finds the text enigmatic and yearns for greater clarity…
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It is, of course, an old lawyer’s trick to create uncertainty by writing hypothetical texts that, in the writer’s mind, do a better job than the Framers’. Bork, however, does not seem to recognize that what the Framers wrote is stronger, not weaker, than the texts he considers as replacements. His hypothetical “clarifications” would narrowly address the courts and explain to them that they should not “disparage” unenumerated rights. In contrast, the Ninth Amendment speaks to all interpreters of the Constitution, presidents no less than courts, citizens no less than legislators, and expressly cautions all of them against committing the interpretive blunder that Bork would impose in the name of the Framers.
Bork’s jurisprudence in fact had a great deal to do with reaching conservative policy outcomes and very little to do with “originalism.” From the right, Glenn Reynolds makes a similar point.