Here’s a quote you aren’t likely to have seen from our old pal Robert Bork:
[I]t is naive to suppose that the [Supreme] Court’s present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning,” to work at “finding the law” instead of reforming society. The possibility implied by these comforting phrases does not exist…History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court.
From Fortune magazine, December 1968 p.140-1. I’ve found a fascinating article published in the Yale Journal of Law and the Humanities in 1991, an early version of which is available here, written by James Boyle. It goes through much of Bork’s earlier work that I had not seen before and reaches this fascinating conclusion:
Like The Tempting of America, Mr. Bork’s other work follows a lapsarian pattern — a tale of a fall from grace, coupled with a strategy for redemption. A state of corruption and decay is identified in some institution or area of law. The rot is traced to a particular departure from the proper state of affairs, a wilful violation of an authoritatively decreed scheme of things. A method is prescribed by Mr. Bork which will allow us to escape our current fallen state and return to a condition of righteousness. Mr. Bork speaks strongly in favour of his method, pronouncing it “inescapable” or “unavoidable.” Yet it is obvious that Mr. Bork’s panacea has all the same features as the disease it is supposed to cure. At first, Mr. Bork offers a lengthy and thunderous denial that the cure is indistinguishable from the disease. Eventually, he falls silent for a while, only to emerge in two or three years with some new, and newly ineluctable, redemptive method. The process then repeats itself. Readers familiar only with Mr. Bork’s most recent writings will be surprised to find that in the past he has been, successively, a libertarian, a process theorist, a devotee of judicial restraint, a believer in neutral principles, a “law and economist” and an advocate of two distinct forms of originalism. At the time, each of these theories was offered as being the only possible remedy to the subjectivity and arbitrariness of value judgements in a constitutional democracy and the other theories he had held, or was about to hold, were rejected out of hand.
I’m not all the way through this article yet (it’s very long), but it should be interesting. Is it strange that I get giddy at finding obscure articles like this the way some women get when they find the perfect pair of shoes on sale? I’m like the dog in that commercial going “bacon bacon bacon bacon”, only it’s candy for my brain. I hope I’m not alone in that.