James Boyle: A Process of Denial: Robert Bork and Postmodern Conservatism

A Process of Denial: Bork and Postmodern Conservatism by James Boyle: Although this article was prompted by the publication of The Tempting of America, its subject is wider than that book alone. As I went further back into Mr. Bork's intellectual history, I discovered that the arguments in his most recent book followed a formula developed in his earlier writings. Like The Tempting of America, Mr. Bork's other work follows a lapsarian pattern -- a tale of a fall from grace, coupled with a strategy for redemption. A state of corruption and decay is identified in some institution or area of law. The rot is traced to a particular departure from the proper state of affairs, a wilful violation of an authoritatively decreed scheme of things. A method is prescribed by Mr. Bork which will allow us to escape our current fallen state and return to a condition of righteousness. Mr. Bork speaks strongly in favour of his method, pronouncing it "inescapable" or "unavoidable." Yet it is obvious that Mr. Bork's panacea has all the same features as the disease it is supposed to cure. At first, Mr. Bork offers a lengthy and thunderous denial that the cure is indistinguishable from the disease. Eventually, he falls silent for a while, only to emerge in two or three years with some new, and newly ineluctable, redemptive method. The process then repeats itself. Readers familiar only with Mr. Bork's most recent writings will be surprised to find that in the past he has been, successively, a libertarian, a process theorist, a devotee of judicial restraint, a believer in neutral principles, a "law and economist" and an advocate of two distinct forms of originalism. At the time, each of these theories was offered as being the only possible remedy to the subjectivity and arbitrariness of value judgements in a constitutional democracy and the other theories he had held, or was about to hold, were rejected out of hand.

The Tempting of America is, in one sense, the weakest and most obviously flawed of Mr. Bork's panaceas. He criticises contemporary liberal constitutional jurisprudence for being arbitrary, politically biased, indeterminate, and a-historical. Yet his prescription for cure -- the philosophy of original understanding -- is even more obviously possessed of these flaws. Indeed, as the quotation at the head of this page demonstrates, in an earlier incarnation he himself had dismissed it as "naive." Mr. Bork's rhetoric of denial must thus be correspondingly stronger and more thunderous...