Robert Bork has passed on. Bork was a conservative whom President Ronald Reagan nominated to be on the U.S. Supreme Court, but the U.S. Senate voted against his confirmation, and the empty slot eventually went to Anthony Kennedy instead. Liberal Senators attacked Bork so vehemently that the name “Bork” became a verb meaning “To defeat a judicial nomination through a concerted attack on the nominee’s character, background and philosophy” (see here).
Senator Edward Kennedy made the provocative statement on the Senate floor that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy.” See here.
Bork denied Kennedy’s characterization of his positions. It would be interesting to read Bork’s thoughts at some time. Bork was an intelligent man, who taught at Yale Law School (and two of his students were Bill and Hillary Clinton!). I own a copy of his Tempting of America, but it is not with me. Maybe I can find it at my Dad’s house when I go back to Indiana this coming February for my sister’s wedding. In the past, I did not read the book because I feared that I would not not understand it, but by now I have taken a class in constitutional law, followed the news, watched judicial hearings on C-Span, and read a lot of books, so I’d probably be able to understand Bork’s book better were I to read it now. And, of course, I would blog through it!
When I took a class on constitutional law at DePauw University, my professor said that Bork was an originalist, who wanted for constitutional interpretation to be based on the original intent behind the Constitution. Overall, that is probably correct. And yet, as I read about Bork last night, I saw that he realized that things could get pretty murky when it came to interpreting the Constitution according to its original intent. On Brown vs. the Board of Education, for example, Bork realized that many of the Fourteenth Amendment’s ratifiers did not believe that segregation was incompatible with equality, and yet Bork said that we can see that legal segregation in the South contributed to inequality between whites and African-Americans. You have an originalist tension here: Do you go with the mindset of the Fourteenth Amendment’s ratifiers, or do you go with the goal of the Fourteenth Amendment itself? Because the aim of the Fourteenth Amendment was equality under the law, Bork supported Brown’s ban on legally segregated public schools. (See here for the quote about Brown from Bork’s Tempting of America.)
Bork may have backtracked from originalism in his approach to the Second Amendment. This review of Bork’s Slouching Towards Gomorrah quotes Bork as saying: “The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government. Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose” (p. 166n). This intrigued me because of the debates about the Second Amendment, especially after the recent school shooting. Some argue that the Second Amendment primarily concerns the militia, like the National Guard, whereas others contend that the Second Amendment protects the individual right to bear arms, one reason being that the Founders wanted for people to be able to stand against their government if it becomes too oppressive. Bork appears to hold to a combination of these two perspectives: yes, the Second Amendment concerns state militias, but the Amendment exists so that the states could defend themselves from the national government if it became overly oppressive. But Bork does not seem to think that such a rationale would work nowadays, when weaponry is much more advanced. I don’t have access to Bork’s book, but is Bork acknowledging that there are times when constitutional interpretation has to take into consideration new realities, rather than just focusing on original intent?
I’d like to mention one more thing: When the Alito hearings (I think) were going on, C-Span was playing the Bork hearings, and I watched some of them. I thought it was cool that Bork was being questioned about his beard, and Bork explained its history!
As someone who leans more to the Left, I’m glad that Robert Bork was not on the Supreme Court. But I do admire his mind, not to mention the boldness and the courage that he displayed when he was under attack from his liberal critics! Someday, I’d like to engage his works, even if I end up disagreeing with most of what he had to say.