Bork in Retrospect

“The most serious defect in the American system of government as it currently operates,” observes Lino Graglia, “the source of many of America’s most intractable problems, is the policymaking role assigned to itself by the Supreme Court.”

No one has recognized this crisis with the perspicacity of Robert Bork. The defeat of his nomination to the Supreme Court in 1987 was the most consequential loss for conservatism in many decades. The only benefit is that Bork went on to write The Tempting of America: The Political Seduction of the Law (1990), a masterly defense of his originalist method of constitutional interpretation and a scathing portrait of the senatorial hacks (one of whom was just elected vice president) who derailed his nomination.

Over his career, Bork has written extensively on constitutional law in a way that is particularly accessible to nonspecialists, and those writings have been gathered in this large and rewarding collection. In constitutional matters, Bork’s primary concern has been what he has called the Madisonian dilemma: That is, the American constitutional structure is essentially majoritarian, with only a small but important list of rights placed beyond the control of majorities.

The American tradition assigns to the judiciary the job of policing these spheres of authority and liberty. The enduring problem of judicial review is: How do we police the judiciary? The only restraint must be self-imposed, and that restraint is found in the interpretive doctrine of originalism, where courts are bound to ascertain and apply the original understanding of the constitutional provision at issue. Original understanding is to be contrasted with a “living” Constitution, where jurists supplant original meaning with current understanding, transforming the process into a continuous constitutional convention. Under a living Constitution, our system has become one of judicial supremacy. Bork has been the most illuminating critic of this corruption throughout his career. In one erudite essay after another–from his seminal 1971 article on “Neutral Principles and Some First Amendment Problems” in the Indiana Law Journal onwards–he has exposed the willfulness and arbitrariness of constitutional interpretation untethered to text and history. But even as prescient a writer and thinker as Bork could not anticipate the reach of Supreme Court radicalism.

In a 1984 lecture entitled “Tradition and Morality in Constitutional Law,” Bork argued that “it is unlikely, of course, that a general constitutional doctrine of the impermissibility of legislating moral standards will ever be framed.” Unlikely but not, alas, impossible. In the 2003 case of Lawrence v. Texas, the Court’s theology of personal autonomy reached something of a nadir with the majority’s constitutional embrace of homosexual conduct–a ruling that probably eradicates the state’s authority to regulate any conduct on the basis of morality at all.

To be sure, the greatest enemies of original understanding come from the left, but there are conservatives who seek to import natural-law ideas into constitutional interpretation. Bork rejects this extraconstitutional source of rights as well. Among the more absorbing parts of A Time to Speak are found in the exchanges Bork has with these scholars. In one section, the arguments of Russell Hittinger, Hadley Arkes, and William Bentley Ball, all proponents for the use of natural law in constitutional judging, are set forth with Bork’s response. In the end, Bork demonstrates that his constitutional positivism is the only acceptable way to avoid limitless judicial discretion–which is to say, a different form of government in fact–from theories of either the natural-law right or the living-Constitution left.

Bork writes almost exclusively about ideas, but his essay on Sir Thomas More is a truly astute portrait of that complex man. Drawing on the 1998 life by Peter Ackroyd–one of the great biographical portraits of the age–Bork reaches precisely the right understanding of More’s importance, and how that importance is obscured by modern confusions:

In addition to the constitutional clashes, this volume also contains cogent essays on international and antitrust law, the independent-counsel law, and moving and insightful appreciations of the great constitutional scholar Alexander Bickel, who was also Bork’s closest personal friend. And there are notes on getting martinis right. (On the correct response when an olive is proposed for the drink: “When I want a salad, I’ll ask for it.”) To the law and all these other subjects, Bork brings a quintessentially conservative temperament: a profound distrust of abstractions and a realistic sense of the flawed nature of man.

Because of his extraordinary lifelong defense of originalism, the doctrine, though very much besieged in the law schools, now has prominent adherents on the bench. On the current Supreme Court Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito all, to one degree or another, interpret the Constitution along originalist lines. As Thomas noted with Borkian clarity in a recent lecture, “There are really only two ways to interpret the Constitution: try to discern as best we can what the framers intended, or make it up.” No one has written with greater trenchancy, learning, and eloquence than Robert Bork on the menace of a judiciary that makes it up.

Gregory J. Sullivan is a lawyer in private practice and part-time lecturer in politics at Princeton.