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Robert Bork

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Bill noted earlier today the passing of Robert Bork.  As an advocate of judicial restraint, Bork has an important place in American jurisprudential thought.  Courts have, in fact, exercised will instead of judgment, substituting their pleasure for that of the legislative body.  (Cf. Federalist No. 78.)  The Supreme Court has done that from Dred Scott v. Sandford (1857) to United States v. Alvarez (2012) and many times in between.

I did not agree with Bork on everything, though.  To this day, I shake my head when I read his words from 1971, "Constitutional protection should be accorded only to speech that is explictily political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic."  Porn is one thing, but to say that Congress could declare an official dogma on, e.g., global warming and forbid expression of a dissenting view is more than one bridge too far.

That said, Bork was an important force moving constitutional jurisprudence in the direction it needed to move.  Judicial activism was and remains a far greater danger than its opposite, which for want of a better term I call judicial refractivism.  Excessive deference to the legislative authority -- upholding acts that really are contrary to the Constitution as originally understood -- does happen, but it is far less common than judicial activism, striking down a constitutional law because the judge disagrees with it.  Judicial activism remains the principal danger, and we lost a strong voice against it today.

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