What Judge Bork’s Legacy Is, and Isn’t

In a tribute to Judge Robert Bork on National Review Online’s Bench Memos this morning, attorney Adam White suggests that CAC and scholars including Akhil Amar and Jack Balkin have endorsed Judge Bork’s approach to constitutional law, which involves following the “original intent” of the Framers.

Because of that book and Bork’s brave stand before the nation in 1987, we now truly do live in “Robert Bork’s America” — but not in the way that Ted Kennedy meant it when he slandered Bork 25 years ago. Today, in Robert Bork’s America, originalism is the dominant rhetoric of constitutional law, such that even liberal legal scholars, from Yale’s Akhil Amar and Jack Balkin to Washington’s liberal Constitutional Accountability Center, present their arguments not in the style of Justice William Brennan (let alone of Ted Kennedy), but of Judge Robert Bork.

With due respect to Mr. White and Judge Bork, this gets it exactly wrong.  As UVA Professor Jim Ryan explains  in his report for Constitutional Accountability Center, Laying Claim to the Constitution, even conservatives ranging from Justice Antonin Scalia to Georgetown Law’s Randy Barnett have rejected Judge Bork’s focus on the intent of the Framers in favor of a careful study of the Constitution’s text and history.

The executive summary of Jim’s report begins:  

Twenty five years ago this summer, the down-in-flames nomination of Judge Robert Bork to the Supreme Court brought the debate between liberals and conservatives about the Constitution to the political front burner. The terms set in the Bork confirmation process– a fight to the death between Borkian originalists and progressive proponents of a “living” Constitution – remain the prevailing political and media narrative. But as Jim Ryan, the William L. Matheson & Robert M. Morgenthau Distinguished Professor at the University of Virginia School of Law explains in Laying Claim to the Constitution: The Promise of New Textualism, these terms no longer accurately reflect the dominant views of either conservatives or progressives when it comes to constitutional interpretation.

In particular, a Chapter entitled “The Rise and Fall of Original Intent” begins “The 1970s witnessed the birth of bad architecture, disco, the 8-track cassette, and Borkian originalism, all of which have largely – and thankfully – passed from view.”  Read the whole Chapter.

As Jim’s report makes happily clear, just about no one’s currently living in Robert Bork’s America, and America is better for it.