Judge Bork’s Unstoppable Ideas

I had the good fortune to be asked recently to contribute to a memorial symposium on Judge Robert Bork’s work in the University of Chicago Law Review’s online forum. My essay (link no longer available) showed that he was a prime catalyst for both originalism and law and economics—two movements that push law back toward being once again an instrument of social well being.   These dual, dynamic contributions made him the most important figure of the intellectual legal right in the latter half of the twentieth century.  And his ideas could not be defeated by the Senate vote that denied him a seat on the Supreme Court.

I noted:

In constitutional theory, he made a crucial first step toward originalism by arguing that neutral principles must be derived neutrally and thus from the text of the Constitution. As a result of these distinct enterprises, he was the most important legal scholar on the right in the last 50 years. These contributions were of substantially different kinds. In antitrust, he mapped an entire field. In constitutional law, he discovered or rediscovered a methodology but left it to others to reticulate and refine his insight. While some have suggested that his claim to being a great scholar rests only on his contribution to antitrust, this assessment is mistaken. The pathfinder can be as great as even the most expert surveyor. Both are crucial to the progress of any discipline.

The last point was also made well by Mike Rappaport in this very blog. I ended my essay with the argument that the long run impact of Judge Bork’s ideas may well outweigh the effect of the defeat of his nomination for the Supreme Court:

Antitrust law now goes by his book. While not yet triumphant, originalism is also on the march. In District of Columbia v Heller, the Court extensively inquired into the historical meaning of the Second Amendment to hold that possessing a handgun in the home was a constitutional right. A measure of the increasing prevalence of originalism was Justice Stevens’s dissent. He disagreed on the history, but accepted the originalist methodology. Law is about reasons, and Bork very substantially contributed to the reasons that justices can give in their opinions. . . . In the academy, originalism is also undergoing a revival. Originalism may be the most discussed idea in constitutional theory. And the discussion does not stop at the theoretical level. Many leading law reviews publish thoroughly researched historical analyses of specific provisions of the Constitution. This process of dissemination then becomes a transmission belt for moving the law toward the original meaning of the Constitution. . . Thus, while Judge Bork never became Justice Bork, his ideas still move the world, including the justices actually on the Court. That’s the essence of ideas. They can go around political barriers. They can be like a torrent of water that bears all before it. They can also seep more slowly into society, mixing with a substratum of ideas, like the rule of law already in the political soil, and forever changing it.

Reader Discussion

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on February 25, 2014 at 16:03:29 pm

That's very nicely put. I'm not well versed in Bork's work, but originalism does seem to be the dominant standard for evaluating Constitutional language these days -- even if that "standard" proves standardless in practice (as evidenced by the Heller decision).

This makes me wonder about the appropriate interpretation of other legal provisions. Conceptually, if a legislature in 1900 bans arsenic in drinking water, should courts interpret this law in a manner consistent with the measurement standards available in 1900 -- or should we permit the undemocratic process of technological advancement amend the meaning of our laws?

More practically, should antitrust laws be interpreted consistent with contemporary understandings of optimal economic theory -- or with the theories that prevailed at the time the laws were adopted?

Also, recall that relatively radical views prevailed during the depths of the Great Depression when all kinds of massive legal schemes were adopted. Should these laws -- Social Security, the National Labor Relations Act, etc. -- be interpreted in a manner consistent with the populist and borderline Marxist views of the times?

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on February 25, 2014 at 23:20:31 pm

My biggest problem with Bork was he was too majoritarian. For instance he said "''Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic." 47 Ind. L.J. 1 (1971) at http://www.repository.law.indiana.edu/ilj/vol47/iss1/1/

That is just so completely wrong. To think that the founders of our country thought that government can mandate what people can write in almost any book or scientific literature is just crazy. And yet it fits with his belief that the majority can do no wrong. James Madison had it right in Federalist #10:"When a majority is included in a faction, the form of popular Government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good, and private rights, against the danger of such a faction, and at the same time to preserve the spirit and the form of popular Government, is then the great object to which our inquiries are directed." Its not easy to stop a majority of the population who wishes to harm a minority, but that is the purpose of our constitution and why we have judges to enforce that constitution.

To think of the 9th amendment as a mere "inkblot" to be ignored is just another example of his belief that judges shouldn't enforce constraints on the legislature.

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Devin Watkins
on February 26, 2014 at 17:17:10 pm

I yield to no one in my admiration and affection for the great judge but the tension here is obvious. Bob Bork shaped antitrust law for sure and for the good of all--but it is pure, unadulterated federal common law, unsupported by any text and completely divorced from the authors' intent--which was a constitutional intent. Judge Bork's genius was precisely to de-constitutionalize the subject and to bring it down to efficiency theorems, administered by judges from the University of Chicago Law School.

The antitrust law initiated by Bob Bork is the just pride of American law, and a gold standard around the world. It is also a screaming scandal to any originalist and textualist theory of what courts ought to do.

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Mike Greve

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