Robert Bork, who died Wednesday, occupies a peculiar position in the pantheon of American conservative heroes. Most conservatives celebrated Judge Bork as the champion of constitutional values who was denied his rightful position on the Supreme Court by liberals bent on warping constitutional language for partisan purposes. Constitutional conservatives for the past 25 years, however, have gone on precisely the sort of judicial crusade that Judge Bork condemned in his major writings. While Judge Bork and such contemporary justices as Antonin Scalia and Clarence Thomas share a superficial commitment to constitutional originalism, the originalism of the conservatives on the present Supreme Court bears little relationship to the originalism Mr. Bork pioneered during the 1970s and 1980s.
Judge Bork was the face of constitutionalism originalism for much of the late 20th century. American conservatives celebrated when, in law review articles, in decisions handed down as a lower federal court judge and in speeches, Judge Bork championed the view that justices should declare laws unconstitutional only when elected officials had clearly acted in defiance of the original understanding or original meaning of constitutional language. No one did more to make constitutional originalism intellectually respectable.
The originalism Judge Bork championed was almost exclusively a weapon to be wielded against Warren Court exercises of judicial power. Judge Bork’s most famous essay, “Neutral Principles and Some First Amendment Problems” (1971), vigorously condemned almost every midcentury liberal judicial ruling that struck down a federal or state law as inconsistent with original constitutional understandings or meanings. His targets included Warren Court decisions that provided some constitutional protection to sexually explicit speech, insisted that states could constitutionally prohibit only speech that incited criminal activity, forbade state courts from enforcing private agreements not to sell homes to African-Americans, and ordered states to reapportion legislative districts consistent with the principle of one person/one vote. Most famously, Judge Bork denounced as inconsistent with originalism a 1965 Supreme Court decision that interpreted the Constitution as protecting the right of married people to use birth control.
Judge Bork spent most of his energies during the 1970s and 1980s condemning the liberal judicial activism of the Burger Court. He condemned as inconsistent with constitutional originalism the judicial decision in Roe v. Wade (1973) holding that woman had a constitutional right to a legal abortion. With equal fervor, Judge Bork attacked judicial decisions declaring common gender discriminations unconstitutional and providing constitutional restrictions on capital punishment. Judge Bork denounced as anti-original calls for judges to protect rights of gay citizens and provide poor persons with some basic necessities.
However, Judge Bork expressed only scorn for the few conservatives in the 1980s who suggested that conservative justices should wield judicial power for conservative causes. His originalism was primarily designed to limit judicial power, not change the direction of judicial activism.
The originalism of Antonin Scalia and Clarence Thomas, by contrast, is committed to judicial activism. Justices Scalia and Thomas have voted to declare more federal laws unconstitutional than any other justices in the history of the Supreme Court. Last June, they helped write a dissenting opinion that, on originalist grounds, would have struck down the entire Affordable Care Act of 2010 as unconstitutional. Justice Thomas is already on record maintaining that a crucial provision of the Voting Rights Act of 1965 violates original understandings. Justice Scalia is highly likely to join Justice Thomas when the justices decide the matter this term.
Justices Scalia and Thomas are also activists when the justices consider whether state laws are constitutional. During the past decades, they have asserted that most campaign finance regulations are unconstitutional and that many state regulations of commercial speech violate the First Amendment. Justices Scalia and Thomas have sharply limited the conditions under which state regulations may lower the value of property and the circumstances in which the Constitution permits states to take property, even when the state pays compensation to the owners. This term, they are likely to write opinions forbidding states from making any use of race in the university admissions process.
The evolution from Judge Bork to Justices Scalia and Thomas is hardly unique in American constitutional history. During the 1920s and 1930s, when a conservative majority sat on the Supreme Court, liberals in the academy and government spoke of a “living Constitution” that permitted elected officials to pass regulations under new present conditions that were unconstitutional in the past. Once liberals secured control over the Supreme Court, the living Constitution was invoked to justify judicial decisions declaring unconstitutional, under modern conditions, laws sanctioning capital punishment or banning abortion that were thought constitutional in the past.
Originalism has the same history. The tool Robert Bork fashioned for restraining judges is the instrument of unprecedented judicial activism. The lesson of his life and career is that justices on the Supreme Court do not spend their careers passively affirming whatever elected officials do, whether those justices are liberals or conservatives, proponents of a living Constitution or constitutional originalism.
Mark A. Graber is associate dean of the University of Maryland Francis King Carey School of Law. His email is mgraber@law.umaryland.edu.
