Various commentators have discussed what the constitutional world might look like now if Judge Bork had been confirmed as a Supreme Court Justice. Jack Balkin writes: Despite Bork's defeat, movement conservatives actually got their hero. Clarence Thomas has proven to be everything that Bork might have been, and more. I rarely agree with Thomas's views, but my study of Thomas's opinions in the past twenty years suggests to me that he may actually be a more successful and intellectually interesting Justice than even Bork would have been. (And that, of course, is saying something, given Bork's background as Yale law professor…
The significance of James Stoner’s Forum essay on the common law, with the two responses by Hadley Arkes and John McGinnis, is made even clearer by recent events. Commentary on the sad passing of Judge Robert Bork and three reviews of Akhil Amar’s new book, America’s Unwritten Constitution, by Robert George, Jeremy Rabkin (link no longer available), and Lino Graglia provoke further reflections on the place of law and the courts within constitutional government. At the heart of the dispute is the extent to which legal interpretation, including of course constitutional jurisprudence, can exist apart from political philosophy. And this no mere academic dispute raises the profoundest questions of how we might defend and expand our fading freedoms.
Stoner’s concern for common law is an essential historical inquiry but as well part of a broader attempt to recover the meaning of the American founding for both theory and contemporary practice. Professor McGinnis finds troubling the potentially expanding and arbitrary power in the content of contemporary common law, while Professor Arkes would further develop Stoner’s argument, to embrace specific consequences of natural law reasoning. Among them, and the work of other scholars, they bring out major schools of interpretation put forth by conservative legal scholars.
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.
The death of a great, great man: Judge Robert Bork. So many fond memories: arriving at AEI in 2000 and being consigned to the tenth floor “smokers row” next to the judge, with Walter Berns and Hillel Fradkin: amid the smoke, you couldn’t see your own face. But there’s the judge, scribbling thoughts on yellow legal pads. As my beloved wife said then: you don’t have a job. You’ve just gone to Heaven. Yup. Bob Bork made it so.