In the latest post on the misnamed Liberty Law Blog, Prof. Rappaport praises anti-liberty thinker Robert Bork for his most anti-liberty effort: the search for "neutral principles" of constitutional law. "Neutral" means morally ambivalent, which ultimately meant for Bork, as inevitably it must, complete majoritarianism, even to the extent of allowing the majority to deprive each person of the rights of religious belief, sexual privacy, and so forth.
Whatever else one might say about such an effort, it was not "originalist" in any sense whatsoever. The framers never thought a Constitution could exist on a morally neutral framework. They articulated the moral goals of the Constitution in its very first line--speaking, among other things, of liberty as a "blessing"--and in the Declaration of Independence, a document Bork rejected in its entirety. That document speaks of universal principles, not neutral ones; indeed, it speaks of "truths," which it would be irrational and immoral to deny. The search of "neutral" principles instead of universal truths originated after WWII, when the moral relativism and collectivism of the preceding decades played out their ultimate, horrifying conclusion. But Pragmatists, unwilling to return to the true path, sought some substitute in "neutrality," and this was the effort Bork undertook.
That "neutrality" was fundamentally anti-individualistic and anti-liberty, because it presumed that the majority has a right to govern people, and to choose what privileges (rights) to give them. This idea, which Bork absurdly called "Madisonian," was in reality the exact opposite of Madison's view. Madison believed all people have basic rights on which the majority has no right to intrude; that majorities are authorized, not entitled, to rule, and then only in limited instances, within the boundaries of universal principles, including the basic rights of individuals. This requires moral commitments; it is not, and cannot be described as, neutral.
Bork rejected all of this, emphatically so. He took the Positivism and Pragmatism of Oliver Wendell Holmes and Alexander Bickel, and tried to stick a feather in its cap and call it Macaroni. That effort rightly failed. This was not a matter of pathbreakers making errors; on the contrary, Bork was an intellectually dishonest writer who said things he knew not to be true. He had to do so because, try as he might, he could not plausibly claim to be an originalist, and did not try to claim that he believed in liberty; the latter is the cause of the former. Bork reserved his hostility for the doctrine of individual rights--and that ruled out an originalism faithful to the work of founding fathers who believed deeply that all men are fundamentally endowed with such rights.
Update: Bernstein's comment to Prof. R's post is spot on.
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