Judge Bork, Godfather of Originalism

Judge Robert Bork’s passing should remind us of his monumental effect on the way we think about the American Constitution. He was the greatest antitrust lawyer of his generation; in his book The Antitrust Paradox, he argued that judges had caused more harm to consumers than if they had simply refused to enforce the antitrust laws and had left the marketplace to itself. Because of Bork, both the courts and federal antitrust enforcers are far less likely to overturn  mergers and must place their emphasis not on corporate size, but on whether a combination will lead to lower prices for consumers. Google, Microsoft, Apple, and Intel, and all of us with our iTunes, light and fast laptops, and easy internet searches, have Bork to thank.

But he was more important, I think, to the cause of restoring a basic fidelity to the original Constitution. Bork not only developed a theory of constitutional interpretation that asked us to look at the intentions of those who wrote the document, he did it at a time — the 1970s — when he the courts, professoriate, and bar were almost wholly unified behind the idea of an evolving Constitution. He did it at a time when historical work was only just beginning to bring forward the fruits of knowledge about the Framers which we enjoy today. He was able to develop a theory of interpreting the Constitution that he derived from first principles about the Founding and the document — a remarkable achievement that convinced many to become originalists.

If there is one question to raise about the substance of Bork’s achievement, it is on the long-running question of the nature of rights. Judge Bork clearly did not think that judges had a mandate to enforce natural rights. He famously called the Ninth Amendment an “inkblot” — a provision that had almost no meaning. Judge Bork was a positivist — he believed that judges had to enforce the laws as written, and if the people wanted more rights, they should provide for them in legislation or by amending the Constitution. He believed, with good reason, that the idea of unenumerated rights would give Supreme Court Justices license to conjure forth whatever elitist ideas they felt like imposing on society. But it is hard, I think, to exclude natural rights from our Constitution, and it may lead ultimately to uninterrupted growth of government power through an administrative state. But Bork did more than anyone, liberal or conservative, to press forward successfully with the argument against them.

  1. Peter Robinson
    C

    John, you startle me.  Are we to understand

    a)  That you believe in natural rights, and

    b)  That you believe judges should, in one way or another, uphold them?

    I myself would answer a definite “yes” to a) and a guarded “yes” to b)–not that my views in all this matter at all–but I’d supposed you, like Judge Bork, were a positivist.  

    Have I spent years mistaking the views of my friend John Yoo, mayor of Oakland manqué?

  2. A Murder of Cows

    I wasn’t Bork’s biggest fan, and Slouching Toward Gomorrah gave me very little reason to regret that Anthony Kennedy ended up on the court instead.

    While the Bork confirmation process is often cited as the beginning of a particular period of ugliness in Washington that has lasted through the present day, it seems to me the Supreme Court fight that should appall conservatives (and everyone else) isn’t the Bork nomination, but Clarence Thomas’s.  The Bork hearings were at least about his ideas and his record, even if one doesn’t like the outcome or doesn’t think those things were fairly represented in that process.

    Thomas, on the other hand, was subject to a humiliating public spectacle over an unresolvable, unsupported he said/she said claim.  At least 60% of the outrage conservatives heap retroactively on the Bork confirmation process should be redirected to Thomas’s, even if one thinks Bork would have proven an outstanding justice.

    In the end, Kennedy and Thomas are on the court, Bork never was, and while we’ll never know how things would have turned out otherwise, my hunch is that all three outcomes were for the best.

  3. KarlUB

    Isn’t the ‘problem’ with the Ninth Amendment that the problem of incorporation of the Bill of Rights via the Civil War amendments? It is my understanding that Judge Bork thought this was bad law.

    If we rejected incorporation of the Bill of Rights, then States could legislate away without regard to the restrictions on the Federal government via the Ninth amendment. Then it wouldn’t be so much of an inkblot, right?

  4. Skyler

    Excellent eulogy.  Thank you.

  5. William Albright

    As a late-twenty-something, I probably have a slightly different view of Judge Bork. One unmarred by senate confirmation hearings. I can remember hearing of Judge Bork on different talk radio shows usually mentioned indirectly and often in reference to that process. I may have even listened to an interview of Bork on Prager’s show. But I did not really appreciate him or his influence until I happened upon his book Slouching Toward Gomorrah probably 4 years ago. I remember thinking at the time that his arguments were original (at least to me), persuasive, and prescient. I would read something and think “well it’s only gotten worse”. Time is probably the best judge (pun intended) of one’s ideas and prescriptions. And I certainly hope that Judge Bork’s ideas have and will withstand the test of time.(BTW: this is my first post ever. aaahhhh…)

  6. Despair Troll

    The 9th Amendment was put there as a direct response to Federalist #84, where Hamilton basically said that a Bill of Rights was a bad idea (among other reasons) because it would imply that the people would have no rights outside of what a Bill of Rights would allow them.

    Its language certainly opens the doors for weirdness as a judge would have no way to reasonably interpret it, but I think Hamilton had a legitimate concern and I’d rather have it than not, Roe or no Roe.

  7. Despair Troll
    William Albright: As a late-twenty-something, I probably have a slightly different view of Judge Bork. One unmarred by senate confirmation hearings. I can remember hearing of Judge Bork on different talk radio shows usually mentioned indirectly and often in reference to that process. I may have even listened to an interview of Bork on Prager’s show. But I did not really appreciate him or his influence until I happened upon his book Slouching Toward Gomorrah probably 4 years ago. I remember thinking at the time that his arguments were original (at least to me), persuasive, and prescient. I would read something and think “well it’s only gotten worse”. Time is probably the best judge (pun intended) of one’s ideas and prescriptions. And I certainly hope that Judge Bork’s ideas have and will withstand the test of time.(BTW: this is my first post ever. aaahhhh…) · 4 hours ago

    Slouching was a very interesting book.  Very thought provoking.  I quite liked his arguments, though I wouldn’t swear by them.  His bit on the Yale book burnings I thought was most disturbing.

  8. Garrett Petersen

    Judge Bork was a giant.  May he rest in peace.

    Because of Bork, both the courts and federal antitrust enforcers are far less likely to overturn  mergers and must place their emphasis not on corporate size, but on whether a combination will lead to lower prices for consumers.

    John, I’d be interested to hear your thoughts on the price standard in horizontal merger cases.  Here in Canada we have a total surplus standard (the act itself is somewhat unclear, but this is the dominant interpretation).  We sometimes allow mergers that raise prices if the gain to producers is bigger than the loss to consumers, as in the Superior Propane case in 1998.

    From an economic perspective, there is little reason to give 100% weight to consumer surplus and 0% to producer surplus.  Most shares in publicly-traded companies are held indirectly by middle-class workers through their pension funds, so it’s not clear that consumers are poorer than shareholders on average.  Even when consumers are poorer than shareholders it’s not clear that the anti-trust courts are the proper place for a redistribution scheme; it’s easier to redistribute through taxation if you must redistribute at all.