Remembering Professor Bork

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Category: Constitutional Interpretation, Judges & Judicial Process, Public, U.S. Supreme Court
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Published reports of the death of Robert Bork on December 19 not surprisingly dwelled on the most controversial events in his long life in the law.  As Solicitor General under President Nixon, Bork in 1975 carried out orders to fire the Watergate special prosecutor.  In 1987, Bork was nominated for the Supreme Court by President Reagan but then rejected by the Senate.  During the 1990s and 2000s, Bork, while employed by conservative think tanks, vigorously argued that elitist liberals were trying to take over the judiciary.

For my own part, I recall Robert Bork from my first year of law school and from the time before he became a prominent national figure.  It seems hard to believe, but I actually had Professor Bork for Constitutional Law.  I also had Professor Bork for Legal Research and Writing because the Yale Law School in those distant days folded each student’s instruction in legal research and writing into an arbitrarily selected substantive first-year course.

I have no evidence that Professor Bork ever read the assorted memoranda and briefs I wrote “under his tutelage,” but I certainly recall his approach to Constitutional Law. 

He confidently strode into the classroom and led an animated, spirited discussion of what the Constitution meant or should be understood to mean.  There was no place to hide but not because of any phony Socratic menace.  The chief pedagogical force in the room was quite simply Professor Bork’s powerful seriousness of purpose.

I was too raw at the time to realize that Professor Bork was promoting a distinct variety of “strict constructionism” or what has come to be called “originalism.”  But I do recall a long week in which Professor Bork insisted the Framers had not envisioned one man-one vote as an operative principle in the election of legislators.  Unlike the present, law students in those days were almost always to the left of their professors, and we argued with Professor Bork on this particular issue and on many others – almost always to no avail.

Specific matters of constitutional interpretation aside, Professor Bork’s teaching of Constitutional Law alerted me to the way interpretations and applications of the law are politically aligned.  The dominant ideology casts the law as neutral, as an almost supernatural force in charge of American life.  Of course that cannot be.  Human beings have preferences and biases, and they bring them to the law.  Professor Bork’s detectable conservatism vis-à-vis the law never came close to winning me over, but it did force me recognize and refine my own “left of liberal” alignment.  Professor Bork, I choose to believe, would like the fact that his teaching spurred political and jurisprudential growth in one of his students.

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One Response to “Remembering Professor Bork”

  1. Whatever one thought of Robert Bork he was a fascinating figure. I was always intrigued by his comments that the 9th Amendment was an “ink blot” with no discernible meaning. To me, this was a statement that the federal government had unlimited powers as to any issue not contained in the first eight amendments. Many people do not like the 9th Amendment but it exists and must be dealt with. If one is an originalist, then one must agree the federal government has no powers not granted in the Constitution.

    To deny the 9th Amendment has any meaning is to deny that people have any rights beyond those listed in the first 8 Amendments. That is an upside down way of viewing the Constitution. While I disagree with much of his thought on the Constitution, I will miss him as he was a scholarly, interesting person.

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