Robert H. Bork (March 2005)

Judge Robert Heron Bork was educated at the University of Chicago. Between 1972 and 1977, Judge Bork served as Solicitor General under Presidents Nixon and Ford, and in 1973-74 served as Acting Attorney General under President Nixon. President Reagan appointed Judge Bork to the U.S. Court of Appeals for the District of Columbia Circuit, where he served from 1982 to 1988. His nomination in 1987 to the Supreme Court by President Reagan failed after contentious confirmation hearings in the Senate. Judge Bork is a Senior Fellow at the Hudson Institute, has held senior posititons at the American Enterprise Institute and Hoover Institution, and has taught at the University of Richmond and at Yale. His best-known works include The Tempting of America and Coercing Virtue: The Worldwide Rule of Judges. The Legal History Project interviewed Judge Bork in February and March 2005.

You are the best known scholarly exponent of the "original intent" or "originalist" school of American constitutional jurisprudence. Can you explain this approach and why it was developed?

I prefer the phrase "original understanding" to "original intent" because law is a public act and we are interested in what the ratifiers of the Constitution would have understood themselves to be enacting rather than any subjective intent of the framers or ratifiers. This is explained in my book The Tempting of America.

We are, moreover, interested in the principles the ratifiers adopted rather than the specific circumstances that prompted them to adopt those principles. Thus, the Fourth Amendment's prohibition of unreasonable searches and seizures was prompted by the fear of constables entering a home or office without reasonable cause but we have, quite properly, applied that principle to modern technological invasions by electronic devices planted by the police.

The question of why originalism was adopted suggests that it is something new. Anglo-American law has always thought that the meaning of a document – statute, constitution, or contract – was to be governed by what the people who wrote the document would have understood themselves to be doing. The innovation of non-originalism is a late bloomer and used primarily with respect to constitutions by people who want particular political or social results that cannot be overturned democratically regardless of what the framers or ratifiers understood themselves to be enacting.

Originalism is inherently "small-C" conservative, in that it seeks to retain and apply founding principles. Does originalism, however, lead strictly to results favored by "big-C" Conservatives, Republicans or the right-wing generally, or can it serve left-wing purposes as well? Put differently, can originalism be an ideologically neutral tool?

Originalism is, by definition, politically neutral. When a court has been decreeing liberal political results without regard to the historic meaning of a constitution, a return to originalism will be seen as a move to conservatism. By the same token, when a court is imposing a conservative agenda without regard to the actual constitution, a return to originalism will be seen as a liberal movement.

Can you cite an example of conservative overreaching in this respect? The Supreme Court's "freedom to contract" jurisprudence, exemplified by Lochner v. New York in 1905, comes to mind as a possibility, but are there more recent cases?

Conservative activism stopped in 1937. The prime example, as you suggest, was Lochner. I discussed some others in The Tempting of America.

Do you believe that "original understanding" is a concept applicable only in constitutional law, or can it be applied also to regular legislation and judicially declared common-law principles? If so, to what extent should the original intent of a legislature or judge govern future interpretations?

I think I have already answered this question.

If "original understanding" does then apply to the interpretation of statutes and judgments, should legislative history, judges' archived notes, and even biographies or other secondary sources be used to aid the search for such understanding? If so, how would this square with the "four corners" doctrine of using only the legal text as expressly presented?

Using only the text of the Constitution is ridiculous. Often provisions are stated in absolute terms – e.g., Congress shall make no law abridging the freedom of speech – but nobody thinks that meant Congress could not make criminal speech on a naval vessel advocating mutiny, or could not enact libel, copyright laws or forbid disruptive speeches in a federal courtroom. The materials you mention are essential to arriving at a just estimate of what the framers and ratifiers were driving at.

To what extent, in your opinion, did the American colonies' English legal heritage, particularly the law-declaring power of judges, survive the constitutionalizing processes of the states and federal government? Also, should pre-1776 and even post-1776 English approaches to shared, ancient legal principles inform today's American lawmaking and judicial practices?

The law-declaring powers of judges was a feature of English common law and arose at a time when Parliament was not yet the major engine of law-making. When Parliament became an active legislature, there was no longer any reason for a broad law-declaring power in judges. That judges – English and American – continued to assert the authority to frame policies in the name of the common law does not make the practice legitimate or consistent with democratic government. Pre-1776 (or perhaps pre-1789) English approaches are relevant to our constitutional adjudication to the extent that it appears our constitution-makers incorporated or assumed the continuing viability of those approaches. I find it somewhat difficult to see how post-1776 English developments should affect our constitutional law.

Surveying U.S. federal jurisprudence of the twentieth century and today, do you believe that the Supreme Court was wrong in the 1803 case of Marbury v. Madison to declare a right to review the constitutionality of federal statutes? Would a Parliamentary-style system of Congressional legislative sovereignty be more in line with the views of those who wrote and ratified the Constitution?

I do not know whether judicial review was contemplated by the ratifiers. I do know – and it is a common view among commentators – that Marbury was a poor opinion by a court that lacked jurisdiction.

In addition to your strictly jurisprudential work, you have been a stern critic of current American culture, for example in Slouching Towards Gomorrah. Would a legal, and thus cultural, re-modeling of twenty-first century American society per the Founding Fathers' vision be a matter of limited reforms and corrections, or instead a wholesale restructuring? Is such a shift even possible or practicable?

Without using your terminology, I do think that a return to constitutional principles would have a significant but by no means overwhelming effect upon American culture. Roe v. Wade, perhaps the most prominent example of many departures from real constitutional principles, would be overruled with the result that the issue of abortion would be returned to state legislatures. I don't believe any legislature would wholly abolish abortion but some significant restraints – e.g., parental notification, prohibition of the killing of the partially born – would be likely.

Turning to more personal topics, how did you come to hold your present views on constitutional jurisprudence? Have you always held such views, or was it perhaps instead along the neoconservative lines of a "liberal mugged by reality"?

I came to hold my present views after experimenting with alternatives and finding none of them democratically legitimate.

In 1987 you were denied a place on the U.S. Supreme Court in a Senate process so rough that Webster's New Millennium Dictionary defines "to Bork" as "to seek to obstruct a political appointment or selection; also, to attack a political opponent viciously." Since then, wrangling over judicial nominations has increasingly embittered national politics. What are the legal-historical implications of these battles?

The question is whether self-government will recover its full, legitimate scope or whether elite values will continue to be imposed without constitutional warrant by the Supreme Court. That is what the battles are about. For the immediate future at least, the prospects for self-government by the people in areas the constitution leaves to them seem bleak.

As a former appellate judge and as a law professor, do you find that U.S. law schools inculcate in American lawyers a proper knowledge of, and respect for, American legal history and perhaps also English legal history?

There are courses in legal history in the law schools but most students do not take them and remain largely unaware of American legal history.

What projects are you working on at the moment that relate to legal or, more specifically, constitutional history?

I have some projects in mind that relate to constitutional history but it would be premature to discuss them.

Judge Bork was interviewed by Peter C. Hansen.

© Peter C. Hansen, The Legal History Project.