Robert Bork has passed away. I had very little respect for his work, as I’ve often made clear. But many of my friends and allies admired him, and I actually owe him a lot, in my own way. In my senior year in High School, I picked up a copy of The Tempting of America, which I’d heard some people praise. I had long been interested in the Constitution, and had studied the writings of the framers a lot by that time, but I hadn’t read any contemporary book on constitutional law. I found Tempting very elegantly written and engaging—and obviously wrong on virtually every issue of importance, especially on what the “originals” really “intended.” When a couple years later, I saw an advertisement for Harry Jaffa’s Original Intent, which promoted his criticisms of Bork, I was excited, and ordered a copy right away. This was basically the beginning of my adult interest in constitutional doctrine. You might say, then, that my legal career was inspired by the need to oppose Bork’s influence, and that tension has been fascinating and profitable to me.
Bork’s work on antitrust law made great advances for economic freedom. More than any other single thinker, it was Bork who persuaded the federal courts that the primary focus of antitrust law should be the welfare of consumers and not of producers. Earlier generations of lawyers had used the antitrust laws to accomplish the most anti-competitive consequences in order to protect existing firms against legitimate competition. This climaxed in Judge Hand’s notorious Alcoa decision, which explicitly premised antitrust liability on the fact that Alcoa was innovative, efficient, and served customers well. The threat of “predatory pricing” liability, especially, pressured businesses to avoid cutting prices to consumers. The work of Chicago scholars, especially Bork, persuaded the federal courts to focus instead on consumer welfare—which led antitrust courts to employ the Rule of Reason more than per se rules, and to restrict “predatory pricing” liability. This hardly cured the many evils of antitrust, especially because many states have not followed this change in doctrine, but it reduced some of the worst abuses of a senseless legal theory that renders the entire American economy prima facie illegal. That accomplishment was a major one, and for it Bork deserves the praise and thanks of all defenders of freedom.
Sadly, the reverse is true in almost every other realm of law. As a progressive, a positivist, a Holmesian, an authoritarian, a moral relativist, Bork was the single worst influence on conservative legal thought in the past half-century. Worse than that, his work was sometimes actually dishonest, as when he wrote in Tempting that there was “almost no history that would indicate what the ninth amendment was intended to accomplish.” In fact, there is a very rich historical record that tells us what the Amendment was intended to accomplish, and Bork knew it. It was just that the record makes clear that Bork’s view—that something isn’t a right if it’s not in the Constitution—is incorrect. As a moral relativist who masqueraded as an advocate of morality-based law, Bork believed that the majority was always right—and that all individual rights are only privileges given to us by the state. He took this to a remarkable extreme, arguing that even our most private, personal rights exist only because the majority chose to extend us such rights—and that if it chose to do the opposite, there would be nothing wrong with it. For Bork, the bottom line was that the individual is the property of the collective. In arguing that the infamous 1986 Bowers v. Hardwick was rightly decided, Bork especially targeted Justice Harry Blackmun’s dissenting statement that individual rights are protected because “a person belongs to himself and not others nor to society as a whole.” Such “extreme individualism,” Bork contended, would lead to a world in which “morality is completely privatized and society may make no moral judgments that are translated into law.” Thomas Jefferson wrote that each of us is “made for ourselves,” and that it would be “slavery” to “suppose that a man had less right in himself than one of his neighbors or indeed all of them put together,” but Bork, who hated Jefferson, answered that the notion that each person belongs to himself and not to society as a whole “can hardly be taken seriously.” Nobody, he wrote, “should act on the principle that a ‘person belongs to himself and not to others.’ No citizen should take the view that no part of him belongs to ‘society as a whole.’”
Fortunately, Bork’s arguments were so clearly wrong, and argued with so little subtlety, that he prompted a reaction by better thinkers, like Harry Jaffa, Roger Pilon, Randy Barnett, and others, who in refuting Bork created an entire category of intelligent and helpful research and theory. Bork’s work served as a mine from which these writers produced gold, and by the time Bork retired from the scene, even his supporters and allies had to admit the profound weaknesses of his arguments.