Professor Bork 

UR’s newest law teacher discusses gay marriage, the role of the judiciary — and Alex Rodriguez.

But Bork is probably best known for the grueling confirmation hearings he endured upon his 1987 nomination to the Supreme Court. So antagonistic and confrontational were these proceedings that they introduced a new verb to the American English: “to bork.” Its meaning: “to seek to obstruct the selection or appointment of (a person) by a campaign of systematic public criticism of the person concerned (The Oxford Dictionary of New Words).

Since those times, Bork has worked at the American Enterprise Institute and the Hudson Institute, writing critically and extensively about the Constitution, judicial activism and other matters that concern him. A devotee of what is known as “the original intent doctrine,” Bork feels courts should adhere to the constitutional principles of the framers. When courts do otherwise, he believes, they are inventing rather than applying the Constitution. Style caught up with him last week.

Style Weekly: You have said that your friend, Gary L. McDowell, is a member of the faculty of the Jepson School of Leadership Studies at the University of Richmond, and that he told you he thought you would like the atmosphere there. What are the qualities of that atmosphere that attracted you?

Bork: He told me there was a fair balance of views and that people who disagree do so reasonably and without the acrimony you find in some other law schools. It is possible there to have intellectual discussions about law without questions of ideology or politics getting into the discussion.

Do you have any thoughts about the state of legal education in general?

It varies from place to place. There are some places that are quite serious about law and some that have a definite ideological bent. They want results even if the law doesn’t support those results, and they teach from that point of view.

What judges and lawyers do you admire?

There are a lot of lawyers I admire: Ted Olson, the solicitor general is one of them. [Whitewater Special Prosecutor] Ken Starr is another. There are a lot more lawyers than those two, but you wouldn’t recognize their names. I’m just picking out the two best-known.

As for judges: [Supreme Court Justice] Clarence Thomas and [Supreme Court Justice Antonin] Scalia.

You have said that you endorse a constitutional amendment defining marriage as between a man and a woman. What do you view as the proper respective roles for federal and state governments in regard to marriage?

The fact is that state governments aren’t going to decide the question. The answer, whichever way it goes, is going to be a national answer. In Massachusetts, homosexual couples will go there, get married and then want all the benefits of marriage when they go back to their home state. Well, there is a federal statute, the Defense of Marriage Act, that says states don’t have to give full faith and credit [to such marriages].

I think if it were up to judges, you would have legalized homosexual marriages all over the country. At the same time, there is no state where a legislature has enacted a statute allowing these marriages. It’s all judges. The amendment is to keep judges from forcing something on the people. There would be no need for an amendment if the judges weren’t pushing this issue.

This issue is much more relevant in Massachusetts because it is there that the [state’s highest] court has ordered homosexual marriage. In San Francisco, it’s just the mayor. So here you have an institution of marriage that’s thousands of years old and one judge is allowed to change all that. It was a 4-3 decision. So one judge has changed the entire institution of marriage. I object to judges making up the Constitution.

Along the same lines, you have spoken of the Supreme Court’s decision in Lawrence v. Texas, as creating a right to homosexual sodomy. I believe your position is that such decisions should be made by legislatures in a democratic process rather than the Court. Why is sex the legitimate or appropriate purview of state governments?

It always has been. Marriage, adultery, polygamy — they’ve all been handled by state legislatures. What we’re seeing now is this surge of judicial rulings taking it out of the hands of the legislatures. There’s nothing in any Constitution that justifies what the courts are doing.

Do you feel there are any general misunderstandings about you and your interpretation of the Constitution?

There’s a great deal of misunderstanding and deliberate misstatement. My views are that courts ought to stick to the principles understood by the people who ratified and wrote the Constitution. That doesn’t mean the courts can’t evolve. For example, the Fourth Amendment originally forbade the government from coming into your home and performing an illegal search and seizure. Now those same principles are being applied to electronic surveillance. That’s the kind of adaptation it makes sense for the courts to make. My objection is when they come up with entire principles not in the Constitution.

How long have you been a resident of Virginia?

Four years. Before that, I lived in D.C. for 18 years. Before that, though, I also lived in Virginia from 1973 to 1977.

Do you have any particular views about recent Virginia decisions, such as Virginia. v. Black (in which the Supreme Court last year upheld Virginia’s cross-burning statute, but struck down language making the act of burning a cross prima facie evidence of intent), or the Virginia Military Institute prayer case? (In Mellon v. Bunting, a panel of judges from the 4th U.S.Circuit Court of Appeals ruled that mealtime prayers at the state-run military school endorsed religion and were coercive and therefore unconstitutional. The U.S. Supreme Court has not decided whether it will hear the case.)

The fact is that scholarship shows that the absolute exclusion of religion from any contact with the government was never intended by the authors of the Constitution. Recently, there’s been a book called “Separation of Church and State” by Philip Hamburger that proves definitively that this rigid separation is not what the Constitution makers intended. But the Supreme Court has deformed the Constitution so that under Supreme Court case law, the issue is very much in doubt.

There are two Constitutional categories now: the Constitution as understood by the people who adopted it and the Constitution as interpreted by judges. Prayer at VMI would be constitutional under the first heading, but not the second. What the court has done with religion it has done with a great deal of hostility to religion.

Are you a baseball fan? What do you think of the Alex Rodriguez trade? Are you a football fan? What is your view of the rehiring of Joe Gibbs to coach the Redskins?

I think Joe Gibbs was a great coach the last time, and I still think he is. Alex Rodriguez — I just wish he’d gone to the Red Sox.

Is there anyone you would recommend be nominated next for the Supreme Court?

Sure, but if I recommended them it would probably put the kiss of death on them. S

Letters to the editor may be sent to: letters@styleweekly.com


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