Notes From Babel

On Bork’s Originalism

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Andy McCarthy (author of “Willful Blindness”) has this thoughtful piece on Judge Bork’s legal philosophy.

Although one cannot help but admire the elegance of Bork’s originalism, in my view it underestimates the nature and significance of language. A precondition for the rule of law is a fixed, immutable meaning of the words that mean to govern us. In my view, it is the job of judges to carefully and dispassionately attempt to unpack that meaning, and consider whether inferior laws conflict with the immanent but heretofore unexpressed outworkings of our fundamental ones.

Of course, the biggest trouble with that view is that it sounds an awful lot like “penumbras and emanations.” To that, I say the answer is not that judges should do less serious philosophical and historical analysis, but more. This is where transcendental and teleological approaches, such as those Greg Bahnsen put forth, are so important. It is critically relevant that we insist on believing that there is such a thing as objectivity and universality of truth and ethics. As long as we insist on this, we are short-changing the intellectual integrity of the rule of law by suggesting that we can scoop out the meaning of words from time to time and refill the empty vessels with whatever we like, so long as it is done democratically.

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Written by Tim Kowal

February 13, 2009 at 4:52 pm

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