Robert H. Bork (1927–2012)

This is, in many ways, a highly engrossing and intelligent look at constitutional law and a particular approach to it. If you are inclined towards Bork's point of view, I imagine you will find it to be a wonderful study. I do not, but still I found many parts of the book to be engaging and clearly explained. I have two main issues with it.

One, Bork's weak attempt to reconcile his originalist approach and Brown v Board of Education. You can just feel on the page that he knows his views and the decision don't go together, but he (from either personal conviction or political necessity) still tries to scramble together a way to make them seem harmonious. It's such a gaping hole in the book that is always there, no matter what he is writing about.

Second, his inability to admit his personal biases and how they could ever influence his decisions. The best example is the long passage where he attacks the idea of a right to privacy that protects gay sex. I am not going to debate his legal view on that, but I will point out that he -- consciously or not -- slips moralistic, extra-judicial comments into, what he professes to be, a neutral application of legal reasoning. For example, he attacks the view that gay sex is a "victimless crime" that causes harm to no one. He writes that "we" know that is not the case. Who is we? By what proof do we know? Bork doesn't answer. He just leaves the clearly homophobic (what else can you call it?) line dangling there. With all his pretensions of sage, neutral legal analysis, that he says is never influenced by his own personal moral compass, he was clearly blind in situations like this. His obvious moral disapproval of same sex relations was so natural to him, that he couldn't see he was letting it seep into his supposed neutral, textual analysis. This is a damning sin when the entire book rails against what he sees as liberal judges letting their morality influence their reasoning.… (lisätietoja)

NOT A REVIEW. Taking notes.


P 41: "Courts cannot nullify an act ... on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism." Nathan Clifford dissent in Loan Association v. Topeka, 87 U.S. 667, 668-69.



Bork seems to believe the only inalienable rights are those expressly listed in the Bill of Rights. If the right is not written, it does not exist. This is contrary to my understanding. P 90-100: Right to privacy does not exist. I understood that the founding fathers understood the Bill of Rights was NOT COMPREHENSIVE! Many argued against including a Bill of Rights precisely because they feared an oppressive government would claim the Bill of Rights was comprehensive containing the ONLY rights guaranteed by the federal government. These skeptics were reassured that the Bill of Rights was not comprehensive: it was a firewall listing some of the most important rights deserving express protection, but not ALL inalienable God given rights.


P. 102, 103, ... Griggs, Weber & Johnson cases. What do we do, what can we do, when SCOTUS clearly oversteps its bounds and abuses its power?… (lisätietoja)

NOT A REVIEW. Taking notes.


P 41: "Courts cannot nullify an act ... on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution, where neither the terms nor the implications of the instrument disclose any such restriction. Such a power is denied to the courts, because to concede it would be to make the courts sovereign over both the constitution and the people, and convert the government into a judicial despotism." Nathan Clifford dissent in Loan Association v. Topeka, 87 U.S. 667, 668-69.



Bork seems to believe the only inalienable rights are those expressly listed in the Bill of Rights. If the right is not written, it does not exist. This is contrary to my understanding. P 90-100: Right to privacy does not exist. I understood that the founding fathers understood the Bill of Rights was NOT COMPREHENSIVE! Many argued against including a Bill of Rights precisely because they feared an oppressive government would claim the Bill of Rights was comprehensive containing the ONLY rights guaranteed by the federal government. These skeptics were reassured that the Bill of Rights was not comprehensive: it was a firewall listing some of the most important rights deserving express protection, but not ALL inalienable God given rights.


P. 102, 103, ... Griggs, Weber & Johnson cases. What do we do, what can we do, when SCOTUS clearly oversteps its bounds and abuses its power?… (lisätietoja)