With the passing of Judge Robert Bork at 85, America has lost one of its most influential legal scholars. Though media obituaries tend to focus on Bork's unsuccessful nomination to the Supreme Court in 1987, Bork's legacy is one, not of failure, but of enormous success.* * *
No Supreme Court nominee today dares disavow originalism or declare his or her sympathy with a "living Constitution" philosophy. When Elena Kagan faced Senate confirmation for the Supreme Court in 2010, she went out of her way to praise originalism as an interpretive method. As the future justice explained: "Sometimes [the framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists."
Indeed we are. And for that, we should thank Robert Bork.
In constitutional criminal procedure, the Supreme Court has largely embraced originalism in its interpretation of the Confrontation Clause. If we can extend that to Fourth Amendment remedies (not including exclusion of evidence) and to the Witness Against Himself Clause, we can make some real progress.
Notice I did not say "Self-Incrimination Clause." There is no such clause in the Fifth Amendment.