Jan 14, 2013, Vol. 18, No. 17 • By TERRY EASTLAND
Bork never did with constitutional interpretation what he had with antitrust: He didn’t write a series of articles developing and refining originalism. He was not a legal historian. Not incidentally, researching the history of constitutional provisions wasn’t exactly a preoccupation of law schools when Bork first began thinking about judicial review. There was a reason for that: Since the 1930s the Court had largely moved away from confining constitutional meaning to text and history. Bork’s importance lay in the fact that he was one of the few scholars in the 1960s who thought constitutional interpretation had gone seriously wrong, and he was willing to say so.
In the past quarter-century, others have come in his wake, as scholars have made extensive inquiries into the original meaning of various parts of the Constitution, among them the Commerce Clause and the Necessary and Proper Clause, the Second Amendment and the Fourteenth Amendment.
Meanwhile, political conservatives aren’t the only ones now professing originalism. Some libertarians do, and some liberals also. There are serious disagreements among these groups. But they are looking for constitutional meaning where Bork was among the first to say you should be looking. More judges are doing that, too.
“Today,” wrote Akhil Amar shortly after Bork’s death last month, “all serious constitutional scholars and most justices are far, far more attentive to originalist arguments than before.” Amar, a student of Bork’s more than 30 years ago and a leader among liberal originalists, credited Bork’s “clarion call for renewed attention to constitutional text, history, and structure.” It was, he conceded, “not without effect.”
With his bestselling books, Bork also may have reached lay audiences. If so, the effect here may have been to confirm for those protesting the Obama administration’s expansions of government (in the Tea Party but also well beyond it) that it’s okay to seek guidance in our politics from the Constitution and thus to ask whether ours is still a government limited by its enumerated powers or one that has jumped those rails and may attend to any social need.
“Constitutionalism” is an old-fashioned word meaning the systematic constraint of government power. As explained by Princeton political scientist Keith Whittington: “Constitutionalism asserts that there are limits to what government can justly do and creates institutions to prevent government from overstepping those limits.” The most important of those institutions is the Constitution, and it was that law, its proper interpretation and application, and its higher status—as indeed “the supreme law of the land”—that Bork kept reminding people about. He was a “constitutionalist” in addition to being a Marine—two excellent ways to have served your country.