Monday, November 17, 2014

James Boyle's devastating take down of Robert Bork

What makes this piece so effective is Boyle's refusal to dismiss Bork as a crank or a charlatan. Boyle instead insists on treating Bork as an important figure in conservative thought. It would have been easy to lapse into mockery, but by starting from the explicit assumption that Bork's ideas are worth taking seriously, Boyle is left with an obligation to examine them in painful detail.

From A Process of Denial: Bork and Post-Modern Conservatism

by James Boyle

With this range of defects it is hardly surprising that Mr. Bork chose to shift his ground somewhat. In The Tempting of America he argues that the understanding of the public at the time the Constitution was ratified, rather than the intent of its original authors, should determine its meaning. There is obviously a price to pay for making this change. The best thing about the intent of the framers was that it appealed to the unreflective idea that a document must always mean exactly what its authors meant it to -- no more and no less. The practitioners of original intent can claim with superficial plausibility that their method is the one "natural" way to read the text. They can even claim that we often (though not always) read other legal documents this way -- trying to determine what Congress, or the judge, or the administrator meant by this word or that phrase. Original understanding has less unreflective appeal. Precisely because it is a more sophisticated notion of interpretation, it sacrifices the idea that this is the only credible way to read a text (what about what the words mean out of context, or what the author meant?) the appeal to everyday practice and perhaps even the claim that this is the way we read other legal documents.

This problem is a particularly acute one for Mr. Bork. Throughout The Tempting Of America he explicitly connects his struggles to those going on within other disciplines. As well he might. Most disciplines seem to have rejected the idea that the text can only be read to mean what the author intended. Literary critics and historians have added other methods of reading. How would the text have been understood by its audience at the moment that it was written? How would an audience today understand it? Can the text be illuminated by evidence of the author's subconscious desires or conflicts? How does the text read if we take it as an a-contextual attempt at philosophical argument?

These other methods are referred to collectively (and a little pretentiously) as "the reader's revolution against the author." They represent everything that Mr. Bork finds most reprehensible in today's scholarship. He quotes approvingly a letter from intellectual historian, Gertrude Himmelfarb attacking this impermissible openness to other methods of interpretation. "Any methodology becomes permissible (except of course, the traditional one), and any reading of the texts becomes legitimate (except, of course, that of the author)." (p. 137) If Mr. Bork was still claiming that constitution meant what its authors intended, this would be all well and good. But the trouble with Mr. Bork's revamped and sophisticated version of originalism is that it can no longer appeal to the romantic idea that the imperial will of the author must govern the text. "The search is not for a subjective intention." (p. 144) Instead, he has handed over interpretive competence to the historically located readers of the constitution. For reasons we can only speculate about, he has shifted ultimate interpretive authority from the Framers of the Constitution to the "public of that time." Mr. Bork has joined the reader's revolution.

As I pointed out before, this switch is a costly one for Mr. Bork. To the initial cost of having been seen to adopt the very same methodology so often criticised by conservatives in other academic disciplines, one also has to add the cost of having been seen to change from one dogmatically asserted position to another. Mr. Bork obviously feels this one particularly strongly because he denies having done it. Though he described himself during the hearings as "a judge with an original intent philosophy"(61) and argued in print that "original intent is the only legitimate basis for constitutional decision-making",(62) he says in The Tempting of America that "[n]o even moderately sophisticated originalist" believes the Constitution should be governed by "the subjective intent of the Framers." (p.218) He suggests that no-one could ever have held such a belief, because it would necessarily mean that the secretly held beliefs of the Framers could change the meaning of the document. Thus all (moderately sophisticated) originalists must have believed in original understanding all along. This seems like a red herring. There are many varieties of intentionalism and many varieties of "reader-controlled" interpretation. But allowing the intention of the author to control interpretation is fairly obviously not the same thing as allowing the understanding of the reader to control. Expanding the definition of intentionalism does not turn it into the philosophy of original understanding. The `intention of the Framers and ratifiers' is not the same as `the understanding of the American people at the time.' Mr. Bork seems to find it hard to admit the change.

The most interesting example of Mr. Bork's scholarly method is the point in The Tempting of America he takes sections from his 1986 article The Constitution, Original Intent, and Economic Rights(63) which, as one might suspect from the title, defends original intent, and uses those sections to defend original understanding. At first glance, it appears that he does this by finding the words "original intent" wherever they appear in the article, and simply replacing them by "original understanding." Chunks of text which had reproved Paul Brest with failing to understand that the original intent determines the meaning of the 14th Amendment, are edited, expanded upon, a new philosophy of interpretation inserted. With a quick change of key words they can become reproofs to Paul Brest for failing to understand that original understanding determines the meaning of the 14th Amendment.(64) Even the same counterarguments can be pressed into service. In 1986 for example, "[t]here is one objection to intentionalism that is particularly tiresome. Whenever I speak on the subject someone invariably asks: "But why should we be ruled by men long dead?"(65) In 1990, Mr. Bork finds that "[q]uite often, when I speak at a law school on the necessity of adhering to the original understanding, a student will ask, "But why should we be ruled by men who are long dead." (170) In the era of the word processor, this kind of "search and replace" jurisprudence has its attractions. Still, both the interpretive criteria and the identity of the `dead men' has changed, and Mr. Bork seems uneasy with that fact.(66)

1 comment:

  1. It sounds like Bork is OK with us being ruled by dead men, as long as they're his kind of dead men.