Bork: How Many People Understand His Arguments?

Discussion in 'Legal Philosophy' started by Dante, Dec 26, 2014.

  1. Dante
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    Dante On leave Supporting Member

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    Bork: How Many People Understand His Arguments? Even some conservatives thought Bork was just plain Borkish :lol:

    (note: not responsible for Wikipedia flaws )


    Bork was best known for his theory that the only way to reconcile the role of the judiciary in the U.S. government against what he terms the "Madisonian" or "counter-majoritarian" dilemma of the judiciary making law without popular approval is for constitutional adjudication to be guided by the framers' original understanding of the United States Constitution. Reiterating that it is a court's task to adjudicate and not to "legislate from the bench," he advocated that judges exercise restraint in deciding cases, emphasizing that the role of the courts is to frame "neutral principles" (a term borrowed from Herbert Wechsler) and not simply ad hoc pronouncements or subjective value judgments. Bork once said, "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.

    ...

    Some conservatives criticized Bork's approach. Conservative scholar Harry Jaffa criticized Bork (along with Rehnquist and Scalia) for failing to adhere to natural law principles.[11] Noted jurisprudential scholar Robert P. George explained Jaffa's critique this way: "He attacks Rehnquist and Scalia and Bork for their embrace of legal positivism that is inconsistent with the doctrine of natural rights that is embedded in the Constitution they are supposed to be interpreting."​

    - Robert Bork - Wikipedia the free encyclopedia

    - Harry V. Jaffa - Wikipedia the free encyclopedia

    - Robert P. George - Wikipedia the free encyclopedia
     
  2. Dante
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    Dante On leave Supporting Member

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    interesting piece or work: Robert Bork Judicial Creativity and Judicial Subjectivity The University of Chicago Law Review The University of Chicago

    The problem of multiple plausible semantic meanings is important, but of limited relevance in Robert Bork’s thinking. Although Bork firmly embraced originalism, sometimes emphasizing intent and sometimes emphasizing text, his interpretive method was in fact overwhelmingly structural. He reasoned from claims about the kind of government the Constitution creates, and in particular from that government’s fundamentally democratic character. Indeed, he used that structural principle to derive the methodological principle with which he is so closely associated and that I am exploring in this Essay: the principle that judges must not decide on the basis of their own values.​
     
  3. Dante
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    Dante On leave Supporting Member

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    On the first day of his Supreme Court confirmation testimony, Robert Bork described teaching a constitutional theory seminar at Yale Law School in which he tried to justify what he called "a general right of freedom" 1 from the various provisions of the Constitution. He recalled that Alexander Bickel, with whom he taught the course, "fought me every step of the way; said it was not possible. At the end of six or seven years, I decided he was right."
    - 26 Val L Rev 419
     
  4. I amso IR
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    I amso IR "Well Yea, Duh"!

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    "We the People of the United States, in Order to form a more perfect Union,
    establish Justice,
    insure domestic Tranquility,
    provide for the common defense,
    promote the general Welfare,
    and secure the Blessings of Liberty to ourselves and our Posterity,
    do ordain and establish this Constitution for the United States of America."

    Justice ("the administration of what is just")
    Tranquility ("free from agitation or disturbance")
    common defense (the common people) (to repel danger)
    general Welfare (Of or relating to the whole) (the state of doing well esp. in respect to happiness, well being or prosperity)
    secure the Blessings of Liberty (a thing conducive to happiness) (freedom)
    Posterity( all future generations)
    All definitions from The Merriam Webster Dictionary copyright 2004

    Now that was tough to figure out, was it not? Those six terms are the base of our Constitution and should be the base for all judicial decisions, in my opinion. Independent position has no place in law especially at SCOTUS. If it is not law formed by a public will and desire, enforced by the Congress of the United States, no SCOTUS decision may enforce it as law. The decision must be made by the Congress regardless of fear the Congress may have.
     
  5. jillian
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    jillian Princess Supporting Member

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    interestingly, the right of privacy described in Griswold v Connecticut and Roe v Wade (among others) could, i suppose, be stretched to include something resembling a general right of freedom.
     
  6. KokomoJojo
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    KokomoJojo VIP Member

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    yeh he got that mostly correct, but in the end he was for sale, like most every other judge we have in this country, where he forgot about his earlier declarations only to make judgments contrary which were ultimately overturned.


    In his posthumously published memoirs, Bork stated that following the firings, Nixon promised him the next seat on the Supreme Court. Nixon was unable to carry out the promise after resigning in the wake of the Watergate scandal, but eventually, in 1987, Ronald Reagan nominated Bork for the Supreme Court.[18]



     

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