The Loss of Robert Bork Print
By Hadley Arkes   
Tuesday, 09 October 2012

The crisp chill of October has brought memories of Octobers past. Writers on law have now been noting that this month marks the twenty-fifth anniversary of the hearings that demeaned the U.S. Senate and denied to Robert Bork his place on the Supreme Court.

The Reagan Administration had been caught unprepared for the kinds of calumnies that were showered on this accomplished jurist and this generous, large-natured man. The Assailant-in-Chief was Sen. Edward Kennedy, first out of the box with the most unmeasured denunciation:  “Robert Borks’s America,” he said, is one in which “women would be forced into back-alley abortions.”  

Kennedy was not constrained by the fact that he knew little in detail about the cases or the principles of jurisprudence that constrained judges.  But in that respect he was more than outdone by the Chairman of the Judiciary Committee, one Joseph Biden.

In facing Robert Bork, Biden would confront a former professor who had marked off for himself a strong definition as a legal “positivist.”   Positivism refers to the laws that are “posited” or enacted by people who claim the authority to have their edicts treated with the force of law.  

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 insisted that they found in the positive law itself the measure of right and wrong.

Faced with Bork, a strong positivist, Biden marked off for himself a strong position in natural law:

As a child of God, [he said] I believe my rights are not derived from the Constitution. My rights are not derived from any government. My rights are not derived from any majority. My rights are because I exist. They were given to me and each of my fellow citizens by our creator and they represent the essence of human dignity. [Emphasis added.]

I had the occasion, several years ago in these columns, to cite those lines and to note that they cut against Biden’s position in defense of abortion. James Wilson, one of the preeminent minds among the framers of the Constitution, said that if we have natural rights, they begin when we begin to be, and that is why the common law cast its protections over human life from the first stirring in the womb.


          The Honorable Robert Bork

The contradiction made little impression on Biden, and four years later he just as readily abandoned a stance of natural law. Faced with Clarence Thomas, who took “natural rights” seriously, Biden warned that judges with that perspective would not support the regulations necessary for the economy.

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.

But Bork, as a jurist, offered a steady example of the “laws of reason,” or the canons of logic, brought to bear on cases in law in a disciplined way. In that respect, he gave us an elegant example of how a jurisprudence of natural law could be done while professing up and down that it could not be done.  And with the same wisdom that ran beyond his theory, those powers of reasoning would later bring him into the Church even while his scoffing at natural law remained undiminished.

Other nominees to the Court have been defeated for confirmation, but none has vindicated himself as grandly as Bork, or made his adversaries look so small, as his writings drew a wider and wider audience, and his teachings gained a new army of adherents among young lawyers.

One fine lawyer and writer, Adam White, has written recently in Commentary that Bork had won: that his theory of  “originalism” had prevailed in judicial interpretation.  I’m afraid not.  It’s a longer story, but there are now too many theories of “originalism,” at war with themselves, and they are now being taken over and molded by the Left. 

And on the cases of greatest moment, such as Obamacare, “originalism” has made little difference. The sober truth of the matter is this: If Robert Bork had taken his place on the Court, Roe v Wade would have been overruled in 1992. His replacement, Anthony Kennedy, has been an active engine in extending the premises of gay rights, giving grounds for the courts to install same-sex marriage in Massachusetts and other states. And he has brought us now to the threshold of the Court imposing same-sex marriage on the country.  

Robert Bork did not win.  Every additional step by Anthony Kennedy, advancing the project of the Left, shows the continuing yield of what Joe Biden and his friends accomplished. For Biden and Co., the defeat of Robert Bork is the gift that never stops giving.

 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and the Director of the Claremont Center for the Jurisprudence of Natural Law in Washington. D.C. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.
 
 
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