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The Borkean Dilemma: Robert Bork and the Tension between Originalism and Democracy

The University of Chicago Law Review Dialogue, Vol. 80, pp. 243-255, 2013 (Symposium on the work of Judge Robert H. Bork)

George Mason Law & Economics Research Paper No. 13-72

14 Pages Posted: 20 Dec 2013  

Ilya Somin

George Mason University - Antonin Scalia Law School, Faculty

Date Written: December 18, 2013

Abstract

As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing. But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Yet it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer. The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy. We could call the trade-off between the two the “Borkean dilemma.”

Part I of this Essay briefly outlines Bork’s well-known commitments to both originalism and judicial deference to the democratic process. Part II discusses his failure to resolve the potential contradiction between the two. In Part III, I explain why the tension between originalism and deference has become an increasingly serious problem for originalists and briefly consider some possible ways to resolve, or at least minimize, the contradiction. Some of these theories have potential, especially the idea that many types of judicial review might actually promote rather than undermine popular control of government. Ultimately, however, none of them comes close to fully resolving the conflict between originalism and democracy. The consistent originalist will likely have to accept substantial constraints on democracy. The consistent adherent of deference to the democratic process will have to reject judicial enforcement of major parts of the original meaning of the Constitution.

Keywords: constitutional law, deference, democracy, framers, interpretation, judicial review, originalism, original intent, original meaning, presumption of constitutionality, representation-reinforcement, Robert Bork, Randy Barnett, supermajoritarian decision-making, Thayer

JEL Classification: D70, H77, K40, K41

Suggested Citation

Somin, Ilya, The Borkean Dilemma: Robert Bork and the Tension between Originalism and Democracy (December 18, 2013). The University of Chicago Law Review Dialogue, Vol. 80, pp. 243-255, 2013 (Symposium on the work of Judge Robert H. Bork); George Mason Law & Economics Research Paper No. 13-72. Available at SSRN: https://ssrn.com/abstract=2369484

Ilya Somin (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8069 (Phone)
703-993-8124 (Fax)

HOME PAGE: http://sls.gmu.edu/ilya-somin/

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