Bork was also famous for being one of the most prominent advocates of "originalism," the idea that the Constitution should be interpreted in light of how its provisions were understood at the time of their enactment. But as scholars such as Bruce Ackerman and Ronald Dworkin have demonstrated in exhaustive detail, Bork's originalism was for the most part intellectually shallow and politically motivated. While Bork was—with the possible exception of Antonin Scalia—the most famous originalist, he had no historical training, and his major scholarly work exemplified the ahistorical formal theory of the Chicago school in which he was trained. Not surprisingly, then, his claims about constitutional controversies such as the meaning of the Fourteenth Amendment in his book on constitutional theory consists of little more than bare assertions that happen to square nicely with conservative policy preferences. Conservative originalism has been very successful as a public-relations technique, but its intellectual accomplishments have been significantly more modest.
I disagreed with the man on many an issue, but his was a towering intellect.
Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
In the space of a page, Bork contends both that “those who ratified [the 14th Amendment] did not think it outlawed segregated education or segregation in any aspect of life” and that “the result in Brown is consistent with, indeed is compelled by, the original understanding” of the equal protection clause. Bork argues that the clause establishes equal justice under law as a principle, which the Framers thought would be satisfied if states provided separate schools of equal quality for African-Americans. This is, of course, the logic of the Court’s 1896 opinion in Plessy v. Ferguson. However, says Bork, Plessy was not working because “when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. ... The Court’s realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality.”
Note first that Bork’s contention that the Court faced this stark choice contradicts his assertion that the result in Brown was “compelled.” More importantly, try to take in what Bork is saying: An originalist approach to the 14th Amendment supports both apartheid and court-ordered integration. This, according to Michael McConnell of the University of Utah, a far more serious originalist than Bork, “is more typical of the constitutional methodology Bork criticizes than it is of his own professed originalist methodology.”
The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.
That was a reflection of what I thought at the time, because I said it. But, heck, it was a long time ago. And it turns out that the transition to a non-discriminatory society was much easier than I thought it would be. I am now perfectly happy with the way things turned out.
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