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[Annie]

Want to stay up all night or run yourself in circles?

http://instapundit.com/lawrev/sexliesj.htm

...In Bork's version of jurisprudential paradise, courts interpreting the Constitution would be guided solely by what he calls the "original understanding."' To his mind, this means "that a judge is to apply the Constitution according to the principles intended by those who ratified the document."' [FN8] Such a rule of interpretation is demanded by the fact that the Constitution is law, which Bork defines as "a rule that we have no right to change except through prescribed procedures."' [FN9] Thus, when Courts apply any other theory of constitutional adjudication, their interpretation has the effect of changing the law without going through prescribed procedures, and therefore fails to meet the standard of democratic legitimacy. [FN10] If we want to amend statutes, we must repeal or amend them legislatively; if we wish to amend the Constitution, we must follow the procedures set forth in article V. [FN11] The key element of Bork's approach is, thus, that the freedom of courts to choose among interpretations of constitutional provisions must be constrained by rules that limit their choices to a narrow range already spelled out by the Constitution itself.

This approach is necessary, says Bork, to address the problems growing out of what he calls the "Madisonian dilemma."' [FN12] By this, he means that our system was set up along two different, and seemingly incompatible, theories. On the one hand, our system is based on self-rule, which Bork characterizes as meaning that "in wide areas of life majorities are entitled to rule, if they wish, simply *1050 because they are majorities."' [FN13] On the other hand, other areas are set apart from majority rule by the Bill of Rights which Bork says is "the only solution that directly addresses the specific liberties minorities are to have."' [FN14] Because of the institution of judicial review, in which the courts (and most notably the Supreme Court) review the acts of legislative majorities for consistency with the federal Constitution, courts are often in the position of striking down acts by the majority in order to protect the rights of the minority. This is the source of Bork's Madisonian dilemma; [FN15] it is what Alexander Bickel called the "counter-majoritarian difficulty"' with judicial review. [FN16]...