Judge Robert Bork: Pathbreaker

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.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. David Bernstein says

    Mike, it strikes me that the 1971 article shows a primary weakness of Bork’s originalism. Not that it wasn’t sophisticated (though it wasn’t) but that it’s not just devoid of any real historical investigation (merely citing Leonard Levy hardly counts), but doesn’t even suggest that Bork had the slightest desire to engage in any real historical investigation. This is true not only of his constitutional law work, but also his antitrust work, which simply made up the idea that the underlying rationale for the antitrust laws was consumer welfare (when it fact opposition to “bigness” was much more important). It’s rather hard to see this as an attempt at real originalism as opposed to essentially a rhetorical trick to bash the Warren Court (which admittedly deserved bashing).

  2. Mike Rappaport says

    David, I largely agree with these criticisms. Bork definitely did not display much evidence that he had looked at the history seriously. But I don’t think it is right to see this merely as a rhetorical trick. In the Con Law area, Bork was relying on history at the time that was popular among academics. He was wrong to do so, but I don’t think we can treat him too harshly for doing so — it was not in bad faith, it was just mistaken.

  3. David Bernstein says

    You are correct that basically everyone was doing “lawyers’ history,” and therefore we can’t be too harsh on Bork for doing what everyone else is doing. Still, if he could have at least been modest in his conclusions, acknowledging that the history was still opaque because no one had been interested in originalism for some time, he would have come out a lot better.

  4. Mike Rappaport says

    You are right David. But that is the thing with pathbreakers. They have an insight and they run with it. They can’t get everything right. It is enough that they got some of it right. He would have been greater had he done what you suggest. But that would have been two great innovations, and all he had in him was one — one more than the rest of us normally make.

  5. says

    I don’t buy it. Tempting was written in 1990, by which time the classical liberal nature of the founding was very well understood. The “classical republican” historiography on which Bork and his supporters rely was a politically motivated alternative theory established to give a grounding for communitarian theories like Bork’s, but the history of things like the Ninth Amendment were well established by then. Even if it hadn’t been, Bork got schooled in it by Jaffa and his supporters well enough, yet Bork never confessed error. And when he published Slouching, he took direct, conscious aim at the classical liberal basis of the founding and denounced it explicitly. That was long after better scholars had demonstrated the profound weaknesses in Bork’s version of the original founding…. (And long after The Federalist showed how backwards Borkian ideas were!) Yet he continued alternately to misrepresent, ignore, or misunderstand the history. He quoted people like Hamilton out of context to make it sound like they said things supporting him, when they didn’t; he misrepresented what the nature of the Dred Scott case, and he resorted to outright denial about things like what the Ninth Amendment means. No, Bork’s errors weren’t the fault of innocently mistaken history. They were the consequence of deliberate deception and rationalization of a preconceived political view–specifically, a political view that denigrated individualism, embraced collectivism and communitarianism, undermined the foundation of individual rights, and mischaracterized the nature of the judiciary under our Constitution.

  6. David Bernstein says

    Hi, Tim. I was primarily referring to Bork’s Neutral Principles article, which Mike identified as Bork’s major contribution to originalist thought. This was just before a mjor revival in interest in constitutional history. which had been largely dead since the 20s and Charles Warren.

  7. Charles says

    There isn’t a shred of evidence that the ninth amendment contained hidden “rights” that judges can glean. As Bork said, it is simply a statement that the listing of rights in the bill of rights doesn’t affect the rights people have under state law. That’s the only logical conclusion, otherwise it assumes more power for judges than the framers could’ve imagined. There would be no point in a written const., if judges can just make up anything via the ninth amendment. This is why the sup ct has never had a majority use the ninth amendment to strike down any statute. It is no more a warrant for judges to invent new rights than the fraudulent and paradoxical “substantive due process” abuse by judges. Bork’s article was intended to create thought, and he later abandoned the premise. His book “The Tempting of America : The Political Seduction of the Law” is a must-read for anyone who actually serious about const law. Too many people have the basic attitude that, because they don’t like a law, it must be unconst. The very antithesis of legal reasoning.

  8. Charles says

    Bork, of course, was correct that original understanding is the only neutral method to derive meaning of the const. No one would stand for a judge applying the judge’s own views about a person’s will, instead of interpreting it in light of what the testator intended. Same concept here, that is the logical, every day understanding of how law works, despite what the revisionists try to dishonestly fool people into believing. If the framers’ understanding doesn’t control interpretation of the words they wrote, there is no reason to even apply their own words in the first place.

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