Part 2 of a symposium on the work of Judge Robert Bork and the publication of A Time to Speak.

There are no second acts in American lives, it is said, but Judge Robert Bork has established a remarkable career for himself after his Supreme Court nomination ended, to the great dishonor (if it were not already great enough), of the Senate. He has since become a foremost commentator on American culture, particularly, though far from exclusively, on legal matters.

The writings collected in A Time to Speak provide an appropriate opportunity to reflect on the course of American law in those two decades since the confirmation hearings. Judge Bork, from his experiences as a former soldier, practicing lawyer, judge, Solicitor General, Attorney General, and law professor, has a deep sympathy for, and understanding of, American law. As these selections attest, his predictions of the fate of American legal thought have become the contemporary diagnosis.

We see the structure of Judge Bork’s jurisprudence as early as his 1971 essay, “We Suddenly Feel that Law in Vulnerable.” Though written in reaction to the excesses of the Warren Court, its argument remains relevant today. In that prescient essay, Judge Bork makes three central points about law that have been neglected, both in the liberal legal academy as well as by conservative legal scholars.

The first contention is that lawyers and judges have “damaged law, and created disrespect for it, through our failure to observe the distinction, central to a democracy, between judges and legislators.” Judges do not make the law, in other words, though that timeworn phrase is often used by those who ostensibly support Judge Bok’s perspective but cannot see the implications of its meaning. For Judge Bork is arguing for a deep level of legal discipline by judges. There is no “higher law” in the Constitution that can allow judges to pick and choose among their favorite moral principles to decide cases in defiance of the text and structure of the Constitution itself or in furtherance of an agenda of “living constitutionalism.” Indeed, as he said in a 1986 public lecture (included here as “The Constitution, Original Intent, and Economic Rights”), it is a criterion of “any defensible theory of constitutional interpretation” that it can control judges. The electorate can control the legislature; the legislature (plus the voters every four years) can control the executive. But only the Constitution—and the specific understanding of legal process and judicial reach it conveys—can control a judiciary. Absent such a theory, we are destined to be ruled in what Russell Kirk called an “archonocracy,” rule by judges.

This is the crux of Judge Bork’s disputes with certain conservative legal scholars, most preeminently Harry Jaffa. In a couple of essays included here, Judge Bork takes Jaffa to task for what may be called a conservative judicial activism. The Constitution is a governing document, not a moral charter. Jaffa’s position is simply the mirror image of that of the Warren Court, simply substituting conservative principles for liberal ones. Since it is such, Bork strongly rejects Jaffa’s argument that the Constitution should be interpreted with recourse to natural law simply because the Declaration of Independence contains natural-law rhetoric.

The respective sides of this argument are of crucial importance for conservatives to understand. They represent two opposing traditions, and conservatism has yet to grapple with their full implications. For Bork, the Jaffan interpretation rests on a faulty precedent—the Dred Scott case, which found (some might say invented) a right of “substantive due process” at odds with the text, history, and structure of the Constitution. That substantive due process right has been given free range in the Supreme Court since the 1960s. Its use by conservatives to foster their own version of wish fulfillment is no better.