Robert Bork's Legacy: We Are All Originalists
Let me add to some of the tributes that have been paid below to Robert Bork, one of the great legal minds of his, or any, generation. A slightly longer version of these thoughts can also be found at Fox News.
The mainstream obits* focus on Bork's failed nomination to the Supreme Court in 1987, but they utterly fail to convey the fact that Bork ultimately won the war. This is true both in a tactical sense -- his Senate lynching galvanized legal conservatives, doubling the Federalist Society's budget in short order -- but also in an intellectual sense.
In 1987, the concept of originalism was regarded as a fringe theory; publicly denounced by Justice Brennan, and scoffed at as an ill-considered attempt to "channel" the secret thoughts of the Founding Fathers. In his many speeches and writings -- particularly The Tempting of America -- Bork laid out a detailed program of originalism, accessible to a general audience. He also articulated the important principle that originalism seeks to apply the original public meaning of the text, not the secret intentions of the Founders.
Today, you won't hear a Supreme Court Justice belittle originalism. At the far left of the Court, Justice Breyer will only go so far as to say that "text and history" are not the only tools at a judge's disposal. You'll never hear a Supreme Court nominee declare his or her support for the "Living Constitution." But you will hear nominees praise the Framers and original meaning. In her confirmation hearings, Elena Kagan went out of her way to stress that the justices should apply original meaning whenever feasible -- "we are all originalists" she said.
Granted, Kagan and her colleagues on the left may sometimes (often?) betray these expressed sentiments. However, the first step in our long battle to revive original meaning is to win the court of public opinion. And in that court, originalism is killing.
*When I say "mainstream obits" I do not include the vile Jeffrey Toobin piece that Mollie mentioned. That utterly graceless piece is, alas, a perfect reflection of Toobin's mediocre intellect.
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Comments:
Jan '11
Re: Robert Bork's Legacy: We Are All Originalists
The fact that it's true is a great headstart.
Aug '12
Re: Robert Bork's Legacy: We Are All Originalists
Adam, do you make a distinction between "orignalism" and "original intent"? As I understand Bork (and Scalia) they reject any notion of "intent." Their view is textualism. The text means what it means. To find out what it means you research the historical context of the passage. This may look like looking for "original intent," but is intellectually distinct.
Jan '11
Re: Robert Bork's Legacy: We Are All Originalists
Great observation. I consider it a national tragedy that Judge Bork wasn't confirmed to the Supreme Court. The process that denial spawned lives with us to this day, and the Supreme Court's legitimacy as a neutral arbiter above the political fray is dead and buried.
Re: Robert Bork's Legacy: We Are All Originalists
I agree that Bork did not look for "intent" except insofar as that intent is revealed in the text itself. As I write above: "[Bork] also articulated the important principle that originalism seeks to apply the original public meaning of the text, not the secret intentions of the Founders."
Dec '11
Re: Robert Bork's Legacy: We Are All Originalists
Adam Freedman:
Today, you won't hear a Supreme Court Justice belittle originalism. At the far left of the Court, Justice Breyer will only go so far as to say that "text and history" are not theonlytools at a judge's disposal. You'll never hear a Supreme Court nominee declare his or her support for the "Living Constitution." But you will hear nominees praise the Framers and original meaning.
It's amazing that in this one area, constitutional law, conservatives control the narrative. If only other areas were like this. Imagine if Obama started all his calls for more stimulus spending with "Let me be perfectly clear, we all know that taxation is legalized theft, but...[insert justification for spending as a necessary evil rather than a positive good]"
Apr '11
Re: Robert Bork's Legacy: We Are All Originalists
Love the Ricochet mention at the end of your column for Fox. Nice!