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12/01/2017

Mark Pulliam on Robert Bork and Judicial Activism
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: What Robert Bork Learned from Judicial Activism, Right and Left.  From the introduction: 

I have been thinking about Robert Bork recently, prompted in part by the 30th anniversary of his rejection by the Senate on November 23, 1987.  Next month will mark the fifth anniversary of his passing on December 19, 2012. Bork was profoundly influential in conservative legal circles when I graduated from law school in 1980 and started paying closer attention to constitutional theory. I was impressed with both Bork’s scholarly writings and his more polemical articles in publications such as National Review. A 1982 essay he wrote in NR, entitled “The Struggle Over the Role of the Court,” reprinted in his 2008 anthology A Time to Speak, remains timely—even prescient. Ramesh Ponnuru has called Bork’s 1990 book, The Tempting of America, written in the wake of his confirmation defeat, “the most important popular statement of judicial conservatism yet produced.”

Certain libertarians who favor a more emphatic judicial approach now criticize Bork, once revered in center-right legal circles. For advocating judicial restraint, Bork has been labeled as a “moral eunuch,” “amoral,” “relativistic,” a “moral nihilist,” and a “majoritarian.” These criticisms ultimately parallel those of left-liberals: Bork’s advocacy of original intent and judicial restraint denies them the license to shape the Constitution according to a preferred ideological template, which, in this case, means libertarianism. Bork’s unforgivable sin was pointing out that republican self-government “means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.”

These negative assessments of Bork are particularly ironic in light of the fact that Bork revolutionized antitrust law by infusing the topic with economic analysis, culminating with his 1978 treatise The Antitrust Paradox. Moreover, during the 1960s, while many of his colleagues at Yale Law School were striking fashionable leftist poses, the free-thinking Bork was exploring libertarian themes. Unlike many current legal scholars, while at Yale (1962-1975, 1977-1981), Bork wrote for both academic audiences and in lay publications such as The New Republic and Fortune, exhibiting a flair for controversy and becoming an early exemplar of what we now call a “public intellectual.” ...

And I didn't know this:

In a 1968 Fortune article, Bork expressed sympathy for the Supreme Court’s recognition of “fundamental” natural rights not listed in the Constitution, under the rubric of the Ninth Amendment, which he believed could be read to preserve individual rights not expressly set forth in the Constitution.  The Ninth Amendment, Bork averred, “seems to mean that the Bill of Rights is an incomplete, open-ended document.” In fact, Bork described liberal Justice Arthur Goldberg’s concurring opinion in Griswold v. Connecticut (1965)—adopting this theory—as “persuasively argued.” Bork suggested that “the idea of deriving new rights,” even “individual freedoms far beyond the text of the Constitution,” was “valid and valuable.” In the interest of consistency, however, Bork proposed that the Griswold approach be extended to restore protection for long-forgotten economic freedoms, rejecting the Court’s post-New Deal distinction between “personal” and “economic” rights. In other words, decades before the “libertarian legal movement” was hatched, Bork was exploring all of its themes, including the demotion of economic liberties in United States v. Carolene Products (1938).

But as the essay explains, he then changed his mind, particularly under the influence of Alexander Bickel.