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.