Borked

Yesterday was the 25th anniversary of the day that Judge Robert Bork was rejected for a seat on the Supreme Court.  Then-Senator Joe Biden, at the time the hapless Chairman of the Senate Judiciary Committee, and the late Sen. Ted Kennedy among other Democrats unfairly savaged Bork (Kennedy  waited barely 30 minutes after President Reagan had picked Bork when he gave his infamous "Robert Bork's America" speech and accused him of wanting segregated lunch counters and women to have back alley abortions).  Hadley Arkes writes that as good as Bork would have been on the Court (surely the Adarand, Grutter, and Obamacare decisions among others would most likely have been reversed), he still was a legal positivist at heart:

The tradition of natural law had always recognized the need to translate the principles of natural law into “positive regulations” that bore on the landscape and the circumstances before us. But positivism took on a different meaning when it was detached from any ground of moral truth – when lawyers and judges [like Bork] insisted that they found in the positive law itself the measure of right and wrong.

Though legal positivism may get Judge Bork to the same conclusion as Justice Thomas, the foundation on which his opinions are built is totally at odds with the natural law principles that underlie the Constitution.

An example of how the difference between the two methods manifests itself:

Robert Bork thought that legislatures were free to protect the child in the womb because he found nothing in the Constitution that barred that authority and provided a “right to abortion.” But of course the Founders understood the Constitution as a structure of power, built on certain moral premises, not as a compendium of rights. James Wilson said that the purpose of the Constitution was not to invent new rights, but to secure and enlarge the rights we already had by nature. And no one expected that it was possible to set down in the text all of those rights that the Constitution was meant to secure.

Bork’s argument against abortion would not be the argument that others of us would make, arguing for the defense of the child in the womb on the moral premises marking the natural law – the same premises that underlay the Constitution itself.

There is no doubt Bork would have been a major upgrade over Justice Kennedy, but the errors in his jurisprudence -- the key missing piece in much of what goes for originalist jurisprudence -- has still managed to affect the Court.