While the government may have discretion to act outside of the courts, its officers often will not, allowing due process to play out in the courts.
I was very sad to hear of Judge Bork’s passing. I had not really known the Judge well, meeting him only over a lunch that he bought for me. He taught one class while I was at law school, and it was one of my worst academic mistakes not to take it. That particular class in 1982 has been already been referred to here and here.
In my view, Judge Bork was a pathbreaker. This was true of his Antitrust scholarship, but I want to focus on the other area where that was true – his Constitutional Law scholarship.
Bork is probably best seen (with Raoul Berger) as one of the two most important developers of modern constitutional originalism. One might criticize his most important originalist article — Neutral Principles and Some First Amendment Problems – published in 1971 – for not being sophisticated originalism from the perspective of modern originalist theories. .
But pathbreakers do not produce sophisticated arguments. They are not like the builders of cities, who can develop civilized settlements that are impressive in their refinements. Rather, they blaze a trail. Their contribution is to show us something we did not previously see. The trail they blaze is often messy and unrefined. But that is not its value. Its value is the new route it allows us to take.
Put differently, it is extremely difficult to develop a new theory. And that is true of originalism, even though originalism was not an entirely new theory.
Bork’s derivation of originalism was quite different from more modern derivations. Writing in 1971, he needed a theoretical basis for originalism – he was after all, a Yale Law School Professor – and he found one in a modification of the Legal Process School’s notion of neutral principles. Bork’s insight was to extend Herbert Wechsler’s requirement that principles be applied neutrally to the requirement that principles be derived neutrally. The derivation needed to occur from the Constitution itself, since the judge needed to explain why a principle is a proper “limitation on the majority at all.” In the Madisonian system that the American Constitution employed – a system that employed both majority rule and protection of minority rights – that neutral derivation could only occur if the principle existed in the Constitution.
Employing one of the leading theories of the time – the Legal Process view – Bork articulated a sophisticated notion of judicial review. Later, in the Tempting of America, he would elaborate on these notions to developed a more general approach to judicial review.