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.