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Epstein on Bork:

In the latest issue of Regulation, Richard Epstein has a scathing review (go to page 3) of Robert Bork's latest book, a collection of his writings over several decades:

what is so striking about Bork's collection of ipse dixits is that they never rest on the close and careful reading of text that the originalist method mandates. Thus, the real indictment of Bork lies not in the views that got him into such hot water in his 1987 confirmation hearings. Historically, the regulation of contraception was subject to state regulation under the police power, notwithstanding Justice William O. Douglas's artful invocation in Griswold v. Connecticut of "penumbras" of the Bill of Rights. What really makes Bork a disappointing constitutional scholar is that his moral self-indulgence has led to an utter lack of intellectual discipline.

So this review ends by pointing out this historical irony: When Bork was constrained by the institutional requirements of the judicial role, his evident intellectual and stylistic talents shone through. He was an excellent judge. Indeed, had history been kinder to him, he would have been a distinguished Supreme Court justice because his temper would have been held in check by the norms of his office. But I couldn't persuade a soul of the soundness of that counterfactual judgment if one took his extrajudicial writings as a barometer of probable judicial performance.

Sadly, it is easy to explain why a great antitrust scholar has had so little influence in constitutional law. Bork may think it is time for him to speak out on constitutional issues. But most people will just tune him out, and for good reason.

Harsh, but not unfair. I often describe Bork as "an originalist who seems to have little interest in history," but who instead uses originalist arguments to support a preconceived ideology of judicial restraint and social conservatism.

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