December 20, 2012

"WE ARE ALL ORIGINALISTS":

The Original Originalist : Robert Bork's lasting legacy (Adam Freedman, 20 December 2012, WSJ)

More important, Bork is one of a handful of jurists who succeeded in changing the way Americans view our supreme law: the Constitution. In 1987, originalism--the doctrine that the Constitution should be applied as originally understood--was considered a fringe theory. The reigning philosophy in academia and on the bench was that we have a "living Constitution," in short, that judges can unilaterally change the document's meaning. In his 1990 book, The Tempting of America, Bork became the first scholar to provide a detailed explanation of originalism for the general public. He also dispelled the myth that originalism seeks to divine the secret intentions of the Constitution's framers. Rather, it is an attempt to understand how the text would have been understood by "those who ratified our Constitution and its various amendments." Bork explained that this task was vital "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." [...]

Today, originalism has moved from the fringes to the mainstream. Many liberal legal scholars concede that judges ought to be guided by the original understanding of the Constitution.

No Supreme Court nominee today dares disavow originalism or declare his or her sympathy with a "living Constitution" philosophy. When Elena Kagan faced Senate confirmation for the Supreme Court in 2010, she went out of her way to praise originalism as an interpretive method. As the future justice explained: "Sometimes [the framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists."

Indeed we are. And for that, we should thank Robert Bork.
Posted by at December 20, 2012 7:55 PM
  
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