7. Bork on Lawyers Studying the Constitution

April 20, 2015

In a discussion group in which I participate a discussant posted the following quote from Robert Bork, preeminent Constitutional scholar and defeated Supreme Court nominee.

“I don’t think the Constitution is studied almost anywhere, including law schools. In law schools, what they study is what the court said about the Constitution. They study the opinions. They don’t study the Constitution itself.”

In my college fraternity each applicant or “pledge”  receives a “pledge father” or mentor.  Mine was a mathematician named Gene Ferrari.  When I had been accepted into law school but before I graduated from college, Gene said he wanted me to meet and talk to his pledge father, Bob Bork, who was then mid-way through law school.  Gene said he though we’d hit it off.

He set it up and one day we sat down for a long talk.  I thought Bob was a little distant and preoccupied, but law school can do that to you and I didn’t hold it against him that he neither seemed all that friendly, nor did he seem as delighted to meet me as Gene thought he would be.  Bob didn’t live in the fraternity house and by the time I started in the law school he was graduating, so we never initiated the the friendship that Gene hoped we might.  Perhaps Bob detected that law school was my lawyer father’s idea and I wasn’t really that enthusiastic about it.  In retrospect I think my lack of passion about practicing law would probably have chilled his interest in our conversation.

Decades later, having quit law school after two years, and after eventually finishing a medical education,  I was sitting with my kids after a long day of seeing patients, listening with interest to the televised confirmations hearing for supreme court nominee Robert Bork, when it gradually dawned upon me that Robert Bork was Bob Bork!  Stunned, I tried in vain to remember precisely what we had talked about that day we met in 1953.

As for the quote, above, I think I understand what Bork means, having studied Constitutional Law in my second year before I quit. (I actually enjoyed studying law, but I had no interest in being a lawyer.  Just couldn’t see myself in practice.)

Legal education is pursued by the “case study” method.  A statute, if there is one, is read, then, pursuant to the principle of stare decisis:  the present case is governed by the older decisions,  a number of cases are studied in detail as to their precise findings, so as to see how the statute law has been exactly circumscribed and defined by the courts.  While the Constitution is merely a more powerful piece of legislation, because of its nature there is a wealth of information about the history and debate that went into its making, meaning it is possible to know a much larger than average amount about the “legislative intent”.  All of which would figure into the arguments in Constitutional case law, but which would not necessarily show up clearly in the end decisions.  If students focus only on the decisions of the court they may never understand what the various provisions of the Constitution were intended by its authors to accomplish.  As a “strict constructionist”, and one opposed to “creative interpretation” of the Constitution merely to offer convenience to some modern circumstance or current issue, Bob would have put much importance on the history and debate attending its writing, and not just in studying the raw decisions of Constitutional case law.  [Ed.  Now in 2020 the term employed is “originalism”.]

Democrats successfully blocked Robert Bork’s appointment in 1987.  Truth be known, as a registered Democrat turned Independent late in life, I think he was just too good for the job.