Response to David Bernstein

David Bernstein, one of the more prominent libertarian legal scholars, responded to my series of posts on originalism's intellectual history. He wrote:

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.

In response (and this would usually be in the comments section, but for my technical struggles with the TypePad comments section): 

Professor Bernstein:

Thanks for your comment. I think there are a couple things worth sussing out here:

1. I cited your work as an example of why originalists' invocation of the genetic fallacy vis-a-vis the temporally distant and diffuse Progressive Era racism was unpersuasive. I expand on that point here.

2. Bork may have "self-identified" as a libertarian, but the evidence suggests (strongly) that he was a movement conservative. He served as an adviser to the Goldwater campaign in 1964, and, importantly, his proto-originalist 1971 article argued that the First Amendment protected political speech, not obscenity/pornography. This is not libertarian, but standard issue movement conservative thinking circa 1971.

3. Black wasn't a proto-originalist, at least not if the term is to have any real meaning. When originalists recount their own history, they start with Bork and Berger, not Black. Moreover, setting to the side Black's vote in Brown, more salient to this discussion was his increasing willingness to vote against Brennan et al. in the 1960s civil rights cases.

4. Your overall argument makes the same mistake as O'Neill's history of originalism: a myopic focus on the law reviews and books by law professors as if these can be divorced from the larger political ecosystem. What is more, I never claimed that Bork's thinking was a "direct descendant" of segregationist rhetoric and thinking. The claim was more modest: that proto-originalism, constitutional conservatism, and movement conservatism all showed common narratives and through lines that should be explored further (and something originalists have to date ignored).

Thanks again for your comment, and I agree this is an important discussion.

Best,

Calvin

Comments

[David Bernstein]

Calvin:

(1) I think you mistake my argument, which is not that modern liberalism is discredited by its progressive routes, but that modern liberalism is a synthesis of progressivism and (classical) liberalism, and that the latter aspect of modern liberal constitutional jurisprudence is a descendant of "Lochner," i.e., pre-New Deal individual rights jurisprudence. Other authors, admittedly, do promote what you call the "genetic fallacy."

(2) Libertarianism was in its infancy in 1964, but such libertarians as were around generally strongly supported Goldwater (an amusing recounting of libertarians' infatuation with Goldwater can be found in Jerome Tucille, It Usually Begins with Ayn Rand. Bork evolved from libertarianism to movement conservatism between then and 1971.

(3) When I started law school in 1988, Black, Frankfurter, and Berger were all very well thought of in Fed Soc circles--much to my surprise, as I considered them all "Old Progressives." The fact that Black, Frankfurter and to a large degree Berger have since been abandoned in those same circles is not relevant to the history.

(4) I agree with the more modest claim. I would say, in fact, that originalism was originally adopted by the Borks of the world because they believed that it provided intellectual justification for their hostility to the "activist" Warren Court agenda. Bork, of course, was not a historian, and I often remark that its ironic that orginalism's most prominent champion in fact showed very little interest in real, as opposed to stylized, history.

[Jeremy Telman]

I find parts of this exchange a bit odd.

As to (2), why not just acknowledge the considerable overlap between right libertarianism and movement conservatism? What possible difference could it make at what day and hour Bork switched over from one to the other?

As to (3), I don't know why we would label people "proto-originalists." I tend to use Larry Solum's two-part test, and by that test Justice Black was certainly an originalist, except, like all originalists, when he wasn't. This is not a jab at originalists. Nobody is 100% consistent.

And as to (4), I am a little surprised that anybody would dispute the connection between originalism and a conservative backlash against the perceived liberal excesses of the Warren and Burger Courts. That is pretty much the official narrative. Calvin's claim that originalism was "born in [the] sin" of support for segregation strikes me as historically problematic. I think Roe was the historical turning point at which pent-up frustrations coalesced into a constitutional theory.

[Jeremy Telman]

I should clarify. Brown is too early to have "caused" originalism; Roe is too late. But Roe was in the cards after Griswold and Bork's and Berger's scholarship would not have garnered much notice outside of the academy but for Roe.

[anon]

Jeremy

The claim is more than just "historically problematic."

The claimant apparently has never read the Bork lecture he cites.

This is just the casting of another "liberal" calumny (this one, quite bizarre and poorly based, IMHO), of the sort we now see regularly publicly debunked, only to be replaced by the next bogus charge.

Attention seeking is one thing; slurring with such a broad brush deserves rebuke.

[anon]

Jeremy

If you read Bork's lecture, it started with (and focused on) Griswold. Bork then took on equal protection as a corollary of the "competing gratifications" concept, not as a focus. Moreover, Bork articulated a value-based rationale for Brown; quite a feat for what the piece of fantasy propounded above contends was a racist reaction in support of segregation. The discussion of Brown was a not a focus or even a major issue (the discussion of Shelley would seem more problematic from the pov of the proponent of the fantasy theory above, but, again, the author appears not to have read the sources or, having read them, failed to understand).

Bork articulated a principal issue - who gets to choose whose interest is superior and thus gratified to the detriment of another's. He gave numerous examples. His point was simply stated: where the Constitution can be read to control the result, the court reaches that outcome. If the Constitution cannot be so read, then the question is a political question. The gaps (ambiguity) in certain provisions of the constitution must be filled by some principled way of deriving the value judgments implicated by the express terms of the constitution.

It is in these terms that Bork discussed Brown: and concluded that the authors of the constitutional provisions at issue could not themselves have agreed on how the "equal protection" they envisioned would be effected. For that reason, Bork concluded, a court could and should have overruled Plessey, because the court could not derive and apply in legal rules the "original intent" in so many diverse cases and the overarching value involved was black equality.

This is the basis for the charge of racism infecting Bork's "originalism." The whole claim is nonsense.

Moreover, the ridiculous linking together of every "conservative" theory of construction of ambiguous constitutional provisions, (including Solum's ???), under the rubric of a thread traceable to racism is, in a word, distasteful in the extreme and borders, IMHO, a line that should be drawn on publication of such awful, unfair and unfounded claims.

Finally, I would join the many who have pointed out that the "progressives" in, e.g. the Wilson era, who advocated moving beyond the terms of the Constitution in a wholesale manner were, in many cases, openly racist. No need to twist or misunderstand what they had to say. They were open and clear on this.