Judge Robert Bork's eightieth birthday celebration: April 12, 2007.

• Author: Taylor, Clifford W.
• Position: Special Issue Commemorating the Life and Works of Judge Robert H. Bork - Testimonial

It is a privilege just to be on the same program with Robert Bork, much less to have the happy task of introducing him. I think history will continue to bear out what we already know: that both in the United States and abroad, Robert Bork is the leading figure in ending the intellectual monopoly that activist judges and scholars have held over constitutional jurisprudence.

In his 1978 book The Antitrust Paradox, Judge Bork wrote that "[o]ne of the uses of history is to free us of a falsely imagined past. The less we know of how ideas actually took root and grew, the more apt we are to accept them unquestioningly, as inevitable features of the world in which we move." (1) I think Robert Bork's legacy is precisely that he did free the rest of us, or at least those who would listen, from a falsely imagined view of the law, from unquestioning acceptance of an imperial judiciary and constantly morphing Constitution. Not only that, he propelled the debate over judicial activism versus judicial restraint headlong into the popular press and the public consciousness, where it remains to this day.

Think back to twenty-seven years ago. While I was fortunate to have had an "originalist" constitutional law professor, Max Eisenberg, for constitutional law in law school, and found the approach intellectually coherent and thus compelling, the rest of the faculty either was outrightly hostile or indifferent to this approach. They, at best, treated the originalist approach as a vestige of a now long-gone era that had yielded to a newer, better world where effectively law, although it was never admitted so plainly as this, was merely a means to an end.

The idea was: a judge, properly schooled and acculturated, decided what result was wanted and then engineered the law to get it. There were no guiding neutral principles, save those facilitating opportunistic doctrines that would be utilized by judges and lawyers to camouflage the whole process as law rather than mere fiat.

It was all unsatisfying to me at least but it was the way, as they say, it was, and it surely was not seen widely for what it was--a means of effecting political ends by empowering the "better" people among us, the judges, to protect the people from the excesses of popular government--as Lino Graglia at the University of Texas Law School has so pithily characterized it: protecting the country from the clods. (2)

Indeed, so great was the power of this notion of how courts should approach decision-making that in this state, in fact, particularly in this state, and just about everywhere else in the country, it was the unquestioned orthodoxy. Simply stated, it went largely unchallenged in all but arcane reviled academic circles such as those populated by such as Judge Bork and our own heroic and much-missed Joe Grano at Wayne State.

Unchallenged, that is, until the Reagan Administration. As Professor Matthew Franck pointed out in a 2004...