Erwin Chemerinsky is a left-of-center legal scholar and prolific author who is now Dean of the University of California’s Berkeley School of Hall, formerly known as Boalt Hall (named after a prominent 19th century attorney, John Henry Boalt, whose widow funded construction of the school’s initial building over a century ago). Berkeley’s law school was re-named—before Chemerinsky became Dean on July 1 , 2017—in part due to sensitivity regarding its namesake’s opposition to Chinese immigration and advocacy of the 1882 Chinese Exclusion Act. I raise this because the issue of heightened “sensitivity”—frequently resulting in the removal or re-naming of historical memorials—currently roils higher education in a number of ways, including the suppression on campus of viewpoints considered to be objectionable.
Proponents of legal reform sometimes resemble the proverbial blind men inspecting an elephant. Depending on which part of the unfamiliar animal they are touching, the sightless examiners may think they are holding a tree trunk (leg), snake (trunk), rope (tail), spear (tusk), or fan (ear). The moral is that perspectives vary, producing widely disparate results.
Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer in both the field of antitrust law (with his influential 1978 book The Antitrust Paradox) and constitutional law, as the father of what we now call “originalism.” In his seminal 1971 article in the Indiana Law Journal, entitled “Neutral Principles and Some First Amendment Problems,” and in his later best-selling books, The Tempting of America (1990) and Slouching Towards Gomorrah (1996), Bork eviscerated the “noninterpretive” theories of constitutional law that dominated the legal academy in the 1960s and 1970s.