Beyond Bork

Three views of the future

The Supreme Court will go on its merry legislative way.

The well-organized campaign against President Reagan’s nomination of Judge Robert Bork to the Supreme Court demonstrated that the constituencies of the left not only are alive and well, but are every bit as interested in judicial nominations as they are in more traditionally political elections. The success of the campaign also demonstrated the ebb of the political acumen and influence of the lame-duck Reagan administration.

But two related aspects of the Senate’s rejection of Judge Bork are surprising. First is the tactic selected by Bork’s opponents, which was to portray him as a dangerous radical whose views on the Constitution were “outside the mainstream.” This choice of tactics was surprising because the opponents’ school of constitutional thought is barely 30 years old. In contrast, the view to which Bork subscribes—the idea that judges should decide constitutional cases by reference to the words and original meaning of the Constitution—dates back two centuries and indeed was the only school of constitutional theory until about 1950. The idea that the granddaddy of constitutional thought may now be relegated to the nursing home and that the new kid on the block now defines the “mainstream” is shocking.

Read More at Reason

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