Tradition and Morality in Constitutional Law
ROBERT H. BORK Judge, United States Court of Appeals, District of Columbia Circuit
When a judge undertakes to speak in public about any subject that might be of more interest than the law of incorporeal hereditaments he embarks upon a perilous enterprise. There is always, as I have learned with some pain, someone who will write a story finding it sensational that a judge should say anything. There is some sort of notion that judges have no general ideas about law or, if they do, that, like pornography, ideas are shameful and ought not to be displayed in public to shock the squeamish. For that reason, I come before you, metaphorically at least, clad in a plain brown wrapper.
One common style of speech on occasions such as this is that which paints a bleak picture, identifies even bleaker trends, and then ends on a note of strong and, from the evidence presented, wholly unwarranted optimism. I hope to avoid both extremes while talking about sharply divergent ideas that are struggling for dominance within the legal culture. While I think it serious and potentially of crisis proportions, I speak less to thrill you with the prospect of doom--which is always good fun--than to suggest to you that law is an arena of ideas that is too often ignored by intellectuals interested in public policy. Though it was not always so, legal thought has become something of an intellectual enclave. Too few people are aware of the trends there and the importance of those trends for public policy.
It is said that, at a dinner given in his honor, the English jurist Baron Parke was asked what gave him the greatest pleasure in the law. He answered that his greatest joy was to write a "strong opinion." Asked what that might be, the baron said, "It is an opinion in which, by reasoning with strictly legal concepts, I arrive at a result no layman could conceivably have anticipated."
That was an age of formalism in the law. We have come a long way