I was very sad to hear of Judge Bork’s passing. I had not really
known the Judge well, meeting him only over a lunch that he bought for
me. He taught one class while I was at law school, and it was one of my
worst academic mistakes not to take it. That particular class in 1982
has been already been referred to here and here.
In
my view, Judge Bork was a pathbreaker. This was true of his Antitrust
scholarship, but I want to focus on the other area where that was true –
his Constitutional Law scholarship.
Bork is probably best seen
(with Raoul Berger) as one of the two most important developers of
modern constitutional originalism. One might criticize his most
important originalist article – Neutral Principles and Some First Amendment Problems – published in 1971 – for not being sophisticated originalism from the perspective of modern originalist theories. .
But
pathbreakers do not produce sophisticated arguments. They are not like
the builders of cities, who can develop civilized settlements that are
impressive in their refinements. Rather, they blaze a trail. Their
contribution is to show us something we did not previously see. The
trail they blaze is often messy and unrefined. But that is not its
value. Its value is the new route it allows us to take.
Put
differently, it is extremely difficult to develop a new theory. And
that is true of originalism, even though originalism was not an entirely
new theory.
Bork’s derivation of originalism was quite different from more modern derivations. Writing in 1971, he needed a theoretical basis
for originalism – he was after all, a Yale Law School Professor – and
he found one in a modification of the Legal Process School’s notion of
neutral principles. Bork’s insight was to extend Herbert Wechsler’s requirement that principles be applied neutrally to the requirement that principles be derived
neutrally. The derivation needed to occur from the Constitution
itself, since the judge needed to explain why a principle is a proper
“limitation on the majority at all.” In the Madisonian system that the
American Constitution employed – a system that employed both majority
rule and protection of minority rights – that neutral derivation could
only occur if the principle existed in the Constitution.
Employing
one of the leading theories of the time – the Legal Process view – Bork
articulated a sophisticated notion of judicial review. Later, in the
Tempting of America, he would elaborate on these notions to developed a
more general approach to judicial review.
Posted at 7:30 AM