Kavanagh vs. Bork: Who was a worse choice?

[Person Man]

The one who is an attempted rapist.

[Person Man]

Obviously the abuser-of-office and segregation revivalist Bork. For all his blather about supremacy of Congress in making laws, he was sure eager to (ab)use the Court to override those laws in the name of "states-rights."

I'd go even farther: Bork and Scalia introduced deep evil into our constitution with that thing they called originalism -- something that, incidentally, never previously existed in any interpretation of English common law.

Clarance Thomas was clearly to the right of Scalia and probably to Bork as well.

My objection to Bork and Scalia is that these two, Thomas being just a follower, concocted a judicial philosophy that is intrinsic nonsense.

From the historical standpoint, even when the original authors of the Constitution were still alive, during the 1820s and 30s, Supreme Court justice didn't see fit to consult any of them for their private opinions when deciding cases.

From the legalistic view, what individual -- not corporate -- civil right, long dormant within the Constitution but ignored by legislatures and previous court decisions, has ever been discovered by Thomas or Scalia? Originalists certainly weren't at the forefront of repealing obnoxious sodomy laws.

I have a third objection, that originalists review our laws in a way intrinsically foreign to the ways they were constructed. English common law is mutable, and was never meant to be interpreted as being "set-in-stone." For all the objections about jurists inventing the law through their judgments, originalists have created something far worse.

I think that Robert Bork was a much better choice than Antonin Scalia. I also think, Storebought, that you should get a better understanding of what originalism is before you set out to criticize it in the way that you do. "Deep evil" is silly hyperbole.

Bork is much better at explaining what originalism means and why it should be a guiding philosophy of judges than Scalia. The article by Posner that you link to never mentioned Bork at all, but you seem to imply that the philosophy of BOTH Bork and Scalia is “intrinsic nonsense,” when you provide the link. Posner described Scalia’s philosophy (and that of Scalia’s co-author, Bryan Garner) as “textual originalism,” based on judges looking “ ‘for meaning in the governing text, ascribe to that text the meaning it has borne from its inception, and reject  judicial speculation about both the drafters’ extra-textually derived purposes and the desirability of the fair readings’ anticipated consequences.’ This austere interpretive method leads to a heavy emphasis on dictionary meanings. … [N]ew dictionaires for new texts, old dictionaries for old ones.” That is not all consistent with Robert Bork’s philosophy of originalism. Some of it is, but not all of it.

One of the essays I’ve seen that discusses a judge’s duty when interpreting law is called “How Far Is a Judge Free In Rendering a Decision?” written by Judge Learned Hand. (There used to be a copy of that essay posted on the internet, but it seems to have been taken down.) That essay convinced me of the foolishness of interpreting law according to dictionary definitions of the words in the law, but instead judges should interpret the intent of the law-makers. There is a very good explanation and critique of Judge Hand’s philosophy of interpreting statutes, as compared to how Hand actually practiced it as a federal judge. Here.

You said that Bork and Scalia “concocted” and “created” the philosophy of originalism. No, they didn’t. The idea that judges should interpret law the way the law-makers intended has been around for a long time. Look at the career of Justice Hugo Black and seen how often he was concerned with “the original meaning” of the clauses of the Constitution that he was interpreting. Justice Oliver Wendell Holmes once said that the word “income,” as it appears in the Sixteenth Amendment, should be interpreted according to what the word “income” commonly meant to most people in the general public at the time the Sixteenth was adopted. Bork wrote, in “The Tempting of America,” that men such as James Madison and Joseph Story have endorsed the philosophy of originalism.

Which brings me to this: you say originalists advocate for the idea that today’s judges should “consult” “the original authors of the Constitution” “for their private opinions when deciding cases.” No, that’s not what Bork said. He clearly said that judges should look for the meaning according to how the general public had understood the clause being interpreted, never for the private opinions of any individuals. It’s just like what Justice Holmes had said about interpreting the Sixteenth Amendment. Bork wrote, “Though I have written of the understanding of the ratifiers of the Constitution, since they enacted it and made it law, that is actually a shorthand formulation, because what the ratifiers understood themselves to be enacting must be taken to be what the public of the time would have understood the words to mean. ... The search is not for a subjective intention. If someone found a letter from George Washington to Martha telling her that when he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest. … [W]hat counts is what the public understood. Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time.”

You say, “Originalists certainly weren’t at the forefront of repealing obnoxious sodomy laws.” But originalists were not supposed to be at such a forefront, because there is not and never has been any constitutional ban on obnoxious laws. Sodomy laws were held unconstitutional by the Supreme Court in 2003, Lawrence v. Texas, as a violation of the Due Process Clause of the Fourteenth Amendment. But the Court’s interpretation of the Due Process Clause is not at all what that Clause was intended to mean, as Bork said dozens of times throughout his book, “The Tempting of America.” The Court’s interpretation of the Due Process Clause is known as “substantive due process.” That means that instead of reading the Clause as if it says this: “nor shall any State deprive any person of life, liberty, or property without due process of law,” it is read as if it says this: “nor shall any State deprive any person of life, liberty or property without due law.” Only by looking at the Clause in the latter way can you interpret it as if it prohibits obnoxious laws. As scholar John Hart Ely wrote in 1980, “[T]here is simply no avoiding the fact that the word that follows ‘due’ is ‘process.’ No evidence exists that ‘process’ meant something different a century ago from what it does now. … [W]e apparently need periodic reminding that ‘substantive due process’ is a contradiction in words, sort of like ‘green pastel redness.’ “ Supreme Court Justices who refused to read the Due Process Clause as if it has a “substantive” meaning have been Oliver Wendell Holmes and Hugo Black. Repeating myself: there is not and never has been any constitutional ban on obnoxious laws.

Bork's originalism--"original intent"--has been wholly rejected by the originalist academy, and even Scalia himself due to its obvious logistical baggage (tying oneself to the words of the Framers themselves). Those judges, attorneys, and professors all subscribe to "original meaning" originalism now. Bork lost, and that's why Posner didn't grapple with him. What would be the point?

Basically whatever was in the four corners of the document the time it was placed into effect and read as it would have been read at the time of the ratification.

For example, any form of a "search" that is done through technology that wasn't available in 1789 and doesn't involve what they said it meant doesn't need a warrant.