More Robert Bork Snark

James Boyle:

A Process of Denial: Bork and Postmodern Conservatism by James Boyle: The better known variant of originalism, and the one that Mr. Bork first adopted and held as recently as 1986, was the philosophy of original intent.The Constitution means what the Framers (or perhaps the Framers and ratifiers) meant it to.... Mr. Bork chose to shift his ground somewhat. In The Tempting of America he argues that the understanding of the public at the time the Constitution was ratified, rather than the intent of its original authors, should determine its meaning. There is obviously a price to pay for making this change.... This problem is a particularly acute one for Mr. Bork. Throughout The Tempting Of America he explicitly connects his struggles to those going on within other disciplines... [that] have rejected the idea that the text can only be read to mean what the author intended.... These other methods are referred to collectively (and a little pretentiously) as "the reader's revolution against the author." They represent everything that Mr. Bork finds most reprehensible in today's scholarship.... But the trouble with Mr. Bork's revamped and sophisticated version of originalism is that it can no longer appeal to the romantic idea that the imperial will of the author must govern the text... he has handed over interpretive competence to the historically located readers of the constitution.... Mr. Bork has joined the reader's revolution.

As I pointed out before, this switch is a costly one for Mr. Bork. To the initial cost of having been seen to adopt the very same methodology so often criticised by conservatives in other academic disciplines, one also has to add the cost of having been seen to change from one dogmatically asserted position to another. Mr. Bork obviously feels this one particularly strongly because he denies having done it. Though he described himself during the hearings as "a judge with an original intent philosophy" and argued in print that "original intent is the only legitimate basis for constitutional decision-making", he says in The Tempting of America that "[n]o even moderately sophisticated originalist" believes the Constitution should be governed by "the subjective intent of the Framers."...

The most interesting example of Mr. Bork's scholarly method is the point in The Tempting of America he takes sections from his 1986 article The Constitution, Original Intent, and Economic Rights which, as one might suspect from the title, defends original intent, and uses those sections to defend original understanding. At first glance, it appears that he does this by finding the words "original intent" wherever they appear in the article, and simply replacing them by "original understanding." Chunks of text which had reproved Paul Brest with failing to understand that the original intent determines the meaning of the 14th Amendment, are edited, expanded upon, a new philosophy of interpretation inserted. With a quick change of key words they can become reproofs to Paul Brest for failing to understand that original understanding determines the meaning of the 14th Amendment. Even the same counterarguments can be pressed into service. In 1986 for example, "[t]here is one objection to intentionalism that is particularly tiresome. Whenever I speak on the subject someone invariably asks: "But why should we be ruled by men long dead?" In 1990, Mr. Bork finds that "[q]uite often, when I speak at a law school on the necessity of adhering to the original understanding, a student will ask, "But why should we be ruled by men who are long dead." In the era of the word processor, this kind of "search and replace" jurisprudence has its attractions. Still, both the interpretive criteria and the identity of the `dead men' has changed, and Mr. Bork seems uneasy with that fact.

The closest Mr. Bork comes to admitting a prior attachment to intentionalism, is that point at which he confesses having previously "written of the understanding of the ratifiers of the Constitution". Actually, he wrote of the intentions of the ratifiers, and a more characteristic statement from his earlier self would be "I wish to demonstrate that original intent is the only legitimate basis for constitutional decision-making." This seems definite enough, but the new Mr. Bork does not like it. Having de-emphasised intention, and converted Framers to ratifiers, he then claims that he was merely using "a shorthand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean." Of course, according to his new theory, what Mr. Bork meant by his "shorthand terms" is irrelevant, the important thing is what he would be understood to mean when he said "original intent." Perhaps he feels his new method should not apply here...

Comments

[kharris]

If all of what Boyle says is true (heck, even some of it), Bork has gone from prefering the intent of the writer over the understanding of the reader to prefering the understanding of one set of readers over that of another set. The "men long dead" business seems more a cover now - critics don't need to complain about the long-agoness of those men, but it's handy for Bork if they are seen to do so. The other problem is that while the intent of the Framers is open to debate, the evidence is available to all. The understanding of the original reader leaves a much bigger gap to be filled by interpretation, scholarly or otherwise. By the way, which original readers? Do I need to know the understanding of the unpublished millions in order to follow Bork's new rule? Or can I just rely on Bork to assertain those understandings for me? Do we turn to the press of the day? That's not something I'd willingly do today, and I'm not aware that the press was less prone to bias, error of incompleteness then. Don't we suspect that, as the author of this notion of original understanding, Bork is angling for the job of interpreter extraordinary and plenipotentiary o that original understanding? Or is this an even simpler dodge? Losing the battle over original intend requires an old man with a failed argument to rehabilitate his argument quickly, before it is washed away and he is forgotten?

[Pious Perfidy]

This borkism make as much sense as original sin!

[Frank the sales forecaster]

The founding fathers were all anti-corporation with anti-corporation quotes such as "no body to jail, no soul to damn to hell" easily found. This means the "originists" should all be advocates for the overthrow of the current US economic system. When someone tells me they are interested in "founder's intent" I go off on them as to why they want to overthrow the U.S.economic system as we know it. When they deny this goal I explain the founders' anti-corporate animus and assure them that, when it comes to "founders' intent" it is all or nothing. Either they, like the founders, are anti-corporation or they are merely picking and choosing which makes their "intent" argument hypocritical. Why reason when you can reduco ad absurdum.

[leo]

All of this is pretty easy to understand: what they mean is limiting access to the law for you but not for them. That's why they're belly-aching all the time about 'trial lawyers' but never about corporate counsels.

[Lewis Carroll]

The other problem with *original intent* is one that Barack Obama talks about in his most recent book; that is, even granting the premise that said original intent should govern, which founder's original intent is one to which we must adhere?

I hate to get all post-modern, but it doesn't seem to me that the Federalists and anti-Federalists had pretty different conceptions of what they were implementing, so how can we even define a specific *original intent*?. Even though they agreed on a lot of things, there were substantial differences between say, Jefferson and Hamilton. And even Jefferson and Madison.

[Lewis Carroll]

correction: that sentence should read "it SEEMS to me that the Federalists and anti-Federalists had pretty different conceptions of what they were implementing".

[Charles]

Bork qualifies as one of the few genuinely insane people almost admitted to the upper reaches of government.

A simple answer to Bork is this Socratic dialogue:
Q: Is it true that the Constitution has a process for amendment?
A: (after much bloviation) Yes.
Q: Is it possible for subsequent generations, using that process, to repeal the Constitution in its entirety?
A: (after even more bloviation) Yes.
Q: If they did so, would that mean that the intent of the Founders was to have no Constitution?
A: ...

The argument of original intent doesn't even qualify as horse manure which is, after all, useful.

[kharris]

Charles,

The answer to the final question is "not necessarily". What you have shown is that the Founders though it should be possible that future generations would completely overturn the Constitution, not that they thought we should or would do so. But the dialog still works well against Bork.

[kharris]

By the way, to the extent to which Bork's argument amounts to "reproving Paul Brest for failing to understand" what we have is a high-brow version of the notion that if you can make fun of somebody else's thinking, you don't have to actually refute it. Aruguments that may be valid but aren't sound sound. Megan McArdle with a belly and a beard.

[Kaleberg]

It's worse with The Bible which was supposedly written by God almighty. Folks are always claiming to have a unique insight into the author's intent.

[piotr]

james Boyle is very good, but so long winded that the argument gets lost.

Basically, Bork is intellectually very consistent. He is purely goal oriented, and thegoals are constant. Defend the hierarchy in the society where rich are on top, friends of the rich, like Bork himself, close to the top, etc. until we get to the folks who are firmly at the bottom, where they should remain.

Womenfolk should be controlled by manfolk.

Colored folks should know the place.

And so should gays (their place is in the closet).

Etc.

Now, how to justify and support such state of things? Religion is one tool, but this is not Bork profession, which is law. So, he needs some arguments that combine

(*) totally ad hoc construct to defend some current need of the social hierarchies he supports

(**) mumbo jumbo to the effect "this is how it ever was and how it ever should be, except for the recent deviations".

As far as historical research, logical reasoning etc., all of it is just a show. His target audience knows, he knows. Why is he so vehement? Partly, it is a matter of style, partly, matter of convenience (if your argument is particularly shoddy, it helps to be vehement). Partly, there is a genuine irritation involved.

You see, if Bork defends hierarchy of the rich and powerful, it is the system in which the BETTER have their position over the WORSE. And if morons and ingrates among the WORSE do not appreciate, if they refuse to recognize their station and DEFER to their BETTERS, this is very irritating indeed. Me thinks that if he were not so irritated all the time, perhaps we would not have fallen from the podium in Yale Club.

I mean, he probably is all congenial over a good meal and whatnot, but as he was entering the proper frame of mind to deliver a scolding speech, paying attention to steps under his feet did not come naturally.