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June 04, 2017


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Enrique Guerra Pujol

TerBeek is calling for a kind of "unilateral disarmament." I'm sure conservative law professors (all five of them) would be happy to stop engaging in politics if the rest of the legal academy did so as well.

Benjamin Fischer

"It is difficult to think of another putatively theoretical school of thought that has embraced the political process as actively."
I think you could try a bit harder. For this critique to have bite, I think you need to specify other schools of thought you are comparing to within the legal community. I mean, quite a number of constitutional professors write amicus briefs defending reproductive rights, and run legal clinics of this sort. They will also, in the same breath, defend the constitutional legitimacy of Roe v. Wade. Some (not me, certainly!) might comment that this behavior is awfully predictable from their political preferences.

Should we conclude that under your theory, such constitutional scholars should also abjure from partisan causes, in order to convince skeptics? Or should we conclude that all constitutional scholars engage in partisan behavior? In which case, originalism might be no worse than theories that defend reproductive rights as constitutional rights.

Edward Cantu

As a constitutional law professor who is pro-choice, pro-GLBT (yes, that's how I write it) rights, and who thinks that Lawrence v. Texas is one of the best decisions the Court has ever made, etc., it is obvious to me that the "enlightened common sense" echoing in legal (and the humanities and social science) academic halls is politics by another name.

Deep State Special Legal Counsel

Originalism could save the Republic from the likes of T-Rump and his nativist ilk. Structurally, the Founders came up with a slow, methodical, multi-layered system to counter the "Twitters" of the future. This is where the debate should be heading...


Isn't this all an ad hominem argument? "Segregationists believed (or claimed to) that courts should not legislate from the bench, so the belief that courts should not legislate is invalid." There is simply no logic here for originalists to engage with.

I also do not understand what TerBeek's point is with Bork's decrying the Brown decision. Is TerBeek implying that Bork was motivated by racism?

David Bernstein

As an identified "fellow traveler", and someone with a deep interest in the history of various ideological movements within constitutional law, this post paints with far too broad a brush. Just for example, Bork was a self-identified libertarian through the late 1960s with little expressed interest in constitutional law. His views, by his undisputed account, were influenced by Alex Bickel, a liberal who was gradually turning conservative (or at least anti-judicial review) on constitutional issues thanks to what he saw as the excesses of the Warren Court in the 1960s. Neither Bickel's evolution nor Bork's took place in response to Brown, and indeed their mutual evolution on constitutional law took place over a decade later. So what does this have to do with Brown? Note the Bork's first big originalist piece was on freedom of speech, not equal protection.
It's also worth noting the the most prominent proto-originalist of the day, Hugo Black, joined the unanimous opinion in Brown. So I think it's well worth studying the influence that the segregationist right had on the development of originalism, but it's far too simplistic to say that Bork's originalism, much less the originalism of his successors, was a direct descendant of segregationist legal theories.


As usual, the "scholars" don't appear to have read the article TerBeek claims demonstrates Bork's racially motivated position on Brown:

"But one thing the Court does know: it was intended to enforce a core idea of black equality against governmental discrimination. And the Court, because it must be neutral, cannot pick and choose between competing gratifications and, likewise, cannot write the detailed code the framers omitted, requiring equality in this case but not in another. The
Court must, for that reason, choose a general principle of equality that applies to all cases. For the same reason, the Court cannot decide that physical equality is important but psychological equality is not. Thus, the no-state-enforced-discrimination rule of Brown must overturn and replace the separate-but-equal doctrine of Plessy v. Ferguson. The same
result might be reached on an alternative ground. If the Court found that it was incapable as an institution of policing the issue of the physical equality of separate facilities, the variables being insufficiently comparable
and the cases too many, it might fashion a no-segregation rule as the only feasible means of assuring even physical equality. In either case, the value choice (or, perhaps more accurately, the value impulse) of the fourteenth amendment is fleshed out and made into a legal rule-not by moral precept, not by a determination that claims for association prevail over claims for separation as a general matter, still less
by consideration of psychological test results, but on purely juridical grounds."

That's pretty much it. That's the basis for a series of posts labeling the whole Bork analysis of Brown a pretext for racism! (The first part of the article, which was actually a lecture, concerned Griswold, of course (as did Biden's interrogation at his confirmation hearings) not Brown.)

The clap trap theory asserted above is therefore really and truly appalling. It is made up of whole cloth, and it is a ridiculous slur and slander on a number of scholars.

Agree or not with his conclusions, how refreshing it was to read the Bork piece, and remember how a true scholar presents a legal analysis: clear writing and compelling logic and analysis, chock full of citations and examples to support the points made.

Compare that piece with a load that strings together unrelated works of others, labels those works with derisive, unfair and inaccurate personal attacks on the motivations of the scholars behind the propositions stated therein, and you then have a clear picture of what the legal academy has wrought.


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