Bob Bork Says

Here are some interesting passages from Bob Bork's contribution to the "great deabte:"

1. "The hard fact is, however, that there are no guidelines outside the Constitution that can control a judge once he abandons the lawyer's task of interpretation. There may be a natural law, but we are not agreed upon what it is, and there is no such law that gives definite answers to a judge trying to decide a case....The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."

2. "Noninterpretivism--activism--is said to be the means by which courts add to constitutional freedom and never subtract from it. That is wrong. Among our constitutional freedoms or rights, clearly given in the text, is the power to govern ourselves democratically....G.K. Chesterton might have been addressing this very controversy when he wrote: 'What is the good of telling a community it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people.'"

3. "If noninterpretivism is to be respectable...when [scholars and Justices] address the public, they should say, frankly, 'No, that decision does not come out of the written or historical Constitution. It is based upon a moral choice the judges made, and here is why it is a good choice, and here is why judges are entitled to make it for you.'"

4. "In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strogly held views of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."