Bork's ideal was constitutional interpretation that minimized politics
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In a Dec. 21 article, "The Bork I Knew: He Was Brilliant, But Far Right Even of Other Conservatives," David A. Harris decried Robert Bork's "original intent" view of constitutional interpretation, saying that it allowed "no flexibility for changed circumstances." He also said that several constitutional decisions on civil rights and privacy issues would have gone the other way had Bork's philosophy prevailed. The next day the PG's editorial said that Bork was rightly denied a Supreme Court position because of his "political leanings" ("Troubled Legacy," Dec. 22).
However, Bork's thesis as spelled out in his book "The Tempting of America: The Political Seduction of the Law" is that basing constitutional decisions on first principles rightly minimizes political considerations in judicial decisions. He explained why a deference to first principles need not be static and inflexible, and how the neglect of those principles leads to decisions that are based on nothing more than some verbal gymnastics and whatever the majority happens to think is desirable at the moment. Bork argued that some of the civil rights decisions were correct but based on the wrong rationale, while some privacy decisions were simply wrongly decided on the facts before them. He said they reflect the pursuit of a political agenda through the courts that the justices didn't have to entertain.
Pundits have widely lamented the politicization of the Supreme Court recently. But that politicization has to be a direct result of freeing decisions from neutral first principles. The court enjoys a respect in our society because of the belief that it is an interpreter of neutral principles embodied in the Constitution and laws. Bork might have said that respect is at risk when the public learns that the court is just indulging in unelected politics. The court could wind up with the same approval ratings as Congress, which can't be good for the republic.
First Published January 7, 2013 12:00 am