Robert Bork said there was an antitrust paradox.
a Robert Bork Paradox?
Bork was not a legal formalist. He was not a textualist, and
he was an originalist only in a quite limited sense. He was also
not himself a paradox. Bork’s thinking was systematic and con‐
sistent. He believed that principled judging consisted in the
identification of values external to the judge and the derivation
from those values, which might be quite abstract, of more spe‐
cific doctrines that would implement them. That process could
be creative and would require many judgments, but it must not
rest on the judge’s own values if it was to be neutral and prin‐
cipled, as to be legitimate it had to be.
Bork was also a leading figure in American law, and here
there is a paradox. The thinkers who are most closely identified
as his followers are noteworthy for being legal formalists and
textualists. They generally do not follow Bork by thinking of
law as consisting fundamentally of basic values from which
specific conclusions can be deduced or derived.
This Essay will describe the basic structure of Bork’s think‐
ing, briefly discuss its intellectual origins and affinities, and
then pose and address the paradox that his followers differ
from him on seemingly basic issues.
In Neutral Principles and Some First Amendment Problems,
Bork proposed a free speech doctrine that, he acknowledged,
should be protected, and even such speech should not be pro‐
tected if it advocates violent overthrow of the government or
* James Madison Professor of Law, University of Virginia; Law Clerk, Judge
Robert H. Bork, United States Court of Appeals for the District of Columbia
This essay deals with the substance of Judge Bork’s thought, and not with the
Judge as an individual. By being about ideas, it is an instance of the principle that
imitation is the sincerest form of flattery. As to Robert Bork himself, having al‐
ready likened him to Socrates, Newton, and Gauss in this Journal, see John Harri‐
son, On The Hypotheses That Lie At the Foundations of Originalism, 31 H
2. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 I
the violation of any law.
He did not rest that proposal on any
Amendment need not be an absolute because “‘freedom of
speech’ may very well be a term referring to a defined or as‐
sumed scope of liberty,” Bork quickly turned from text to his‐
He then just as immediately turned away from history,
ers seem to have had no coherent theory of free speech and
appear not to have been overly concerned with the subject.”
cluded, “We are, then, forced to construct our own theory of
the constitutional protection of speech.”
Constitution contemplates a representative democracy, and
second, judges must be principled.
The second postulate was
inherent in the Constitution a requirement that judges be neu‐
tral in the derivation, definition, and application of the princi‐
ples they employ.
Judicial neutrality, he found, was estab‐
the Constitution, but in its “Madisonian” structure. A Madison‐
ian system avoids either minority or majority tyranny by giv‐
ing substantial power to the majority while preserving basic
rights for the minority.
In such a system, the judges are simply
unless they can derive their conclusions from the Constitution’s
values and not simply their own.
value of free speech as in deducing the requirement of princi‐
3. Id. at 20 (“I am led by the logic of the requirement that judges be principled to
the following suggestions. Constitutional protection should be accorded only to
speech that is explicitly political . . . . Moreover, within that category of speech we
ordinarily call political, there should be no constitutional obstruction to laws mak‐
ing criminal any speech that advocates forcible overthrow of the government or
the violation of any law.”).
4. Id. at 21–22.
5. Id. at 22.
7. Id. at 22–23.
8. Id. at 7.
9. Id. at 2–3.
10. Id. at 3 (noting that the “Court’s power is legitimate only if it has, and can
demonstrate in reasoned opinions, that it has, a valid theory, derived from the Con‐
stitution, of the respective spheres of majority and minority freedom. If it does not
have such a theory but merely imposes its own value choices, or worse yet if it pre‐
tends to have a theory but actually follows its own predilections, the Court violates
the postulates of the Madisonian model that alone justifies its power.”).
stitution creates “a representative government, a form of gov‐
ernment that would be impossible without freedom to discuss
government and its policies. Freedom for political speech could
and should be inferred even if there were no first amend‐
That constitutional value provided judges with a prin‐
ciple by which to distinguish political speech from all other
forms of conduct, and hence to say that it is constitutionally
protected without having to rest that judgment simply on their
One reason Neutral Principles gave rise to so much contro‐
it addressed not only the First Amendment, but a wide range
of controversial topics in constitutional law. On many of those
topics, Bork directed withering criticism at the Supreme Court.
He criticized Griswold v. Connecticut
and Reynolds v. Sims,
On the most fraught issue of all, though, he
was right. Brown was right, and the scholar from whom
Bork had borrowed part of his title, Herbert Wechsler,
inquiry into the history, but from some basic facts and “purely
The basic fact was that the Equal
blacks and whites.
The purely juridical principle was that the
another, because judges may not choose one gratification over
another without a legal warrant, and the legal materials did not
indicate any particular conception of equality. Hence, the
courts had to use a general principle of equality, one that re‐
quired both physical equality, which by itself would permit
separate‐but‐equal schools, and also psychological equality,
11. Id. at 23.
12. Id. at 26.
13. 381 U.S. 479 (1965).
14 377 U.S. 533 (1964).
15. Bork, supra note 1, at 7–19.
16. 437 U.S. 483 (1954).
17. See Herbert Wechsler, Toward Natural Principles of Constitutional Law, 73
19. Id. at 15.
20. Id. at 14.
which would forbid them and lead to Brown.
banned segregated schools. Basic values plus judicial neutrality
equals rigorous and principled constitutional decisionmaking.
When he wrote Neutral Principles, Bork was a typical law pro‐
fessor in that he had two fields: his own, and constitutional
law. His own was antitrust law. The structure of his thinking
about constitutional law is virtually identical to that of his
thinking about the Sherman Act. In Bork’s view, that act’s basic
impulse, combined with the requirement that judges be neu‐
tral, yielded a quite general and abstract value that courts
could and should implement through elaboration, that was at
once creative and principled. From the various values that
might be found in the Sherman Act, Bork selected one and only
one: maximizing consumer welfare.
That sole value should
would require that judges make non‐neutral choices, preferring
some distributional claims over others.
Although the value
trinal results would change over time as the economy changed
and judges learned more about economics.
into practice Chicago‐style neoclassical welfare economics, at
least until some better form of economics came along. Bork re‐
alized that his interpretation required a distinctive understand‐
ing of the concept of restraint of trade, a term used in English
and American common law in a way that had no particular
connection with consumer welfare. Bork’s derivation of that
concept would horrify many textualists today:
It is clear from the debates that ‘the common law’ relevant to
the Sherman Act is an artificial construct, made up for the
occasion out of a careful selection of recent decisions from a
variety of jurisdictions plus a liberal admixture of the sena‐
tors’ own policy prescriptions. It is to this ‘common law,’
holding sway nowhere but in the debates of the Fifty‐first
21. Id. at 14–15.
22 Robert H. Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Mar‐
ket Division, 74 Y
J. 775, 781 (1965).
24. “Courts charged by Congress with the maximization of consumer welfare
are free to revise, not only prior judge‐made rules, but, it would seem, rules con‐
templated by Congress.” Robert H. Bork, Legislative Intent and the Policy of the
Today’s intentionalists should not conclude, however, that
simple or ordinary sense. In his view, legislative intent was itself
a construct that had to be used with care.
Its function was to
value in place, the antitrust judge’s “responsibility is nothing
less than the awesome task of continually creating and recreat‐
ing the Sherman Act out of his understanding of economics and
his conception of the requirements of the judicial process.”
contemporary constitutional originalism. Originalism is itself a
large‐scale principle, but for Bork it rested on the more basic
requirement of judicial neutrality. Only adherence to the origi‐
nal understanding, he argued, can make the Constitution “law
that binds judges.”
The requirement that judges be bound by
by his claim that if decision according to the original under‐
standing were impossible, the only alternative would be to
abandon judicial review altogether. Without the original un‐
derstanding to guide judges, “the choice would be either rule
by judges according to their own desires, or rule by the people
according to theirs.”
For Bork, that was no choice at all, for
ing was founded.
As a judge, Bork believed that his job was to turn quite ab‐
stract values into determinate but possibly mutable doctrines
through principled decisionmaking. On the question of muta‐
bility, he clashed with then‐Judge Scalia in Ollman v. Evans,
argued that the existing common law privilege for statements
of opinion was inadequate to implement the First Amend‐
25. Id. at 37.
26. That construct had to be treated gingerly because of its “inherent artificial‐
ity.” Id. at 47. Its artificiality arose because “the attribution of any intent to a legis‐
lature involves a number of problems and assumptions.” Id. at 7 n.2. Bork thus
rejected any “attempt to describe the actual state of mind of each of the congress‐
men who voted for the Sherman Act, but merely as an attempt to construct the
thing call[ed] ‘legislative intent’ using conventional methods of collecting and
reconciling the evidence provided by the Congressional Record.” Id.
27. Id. at 48.
30. 750 F.2d 970 (D.C. Cir. 1984) (en banc).
ment’s values, and should be replaced with a judicial inquiry
into the totality of the circumstances designed to ensure ade‐
quate protection for free expression.
His conclusion reflected,
as they applied to changing circumstances.
Although Judge Bork found history of little use in Ollman, he
fluential opinion, his concurrence in Tel‐Oren v. Libyan Arab
That case involved Section 1350 of Title 28 of the
the Judiciary Act of 1789. Bork’s historical inquiry was explic‐
itly guided and bounded by a principle about judicial deci‐
sionmaking that he derived from the constitutional structure.
He began with a presumption against finding causes of action
for parties like the plaintiffs in that case.
Courts should not make policy choices that might interfere
with American foreign policy.
Neither the specific presump‐
any of the sources Bork relied on, including of course the Con‐
stitution. He found it, not in any particular words, but in the
Bork’s view that scholars and judges could rigorously de‐
duce powerful conclusions from a few general and basic prin‐
ciples in part reflected his time at the University of Chicago. In
studying law and economics with Aaron Director, Bork, as he
described it, “underwent what can only be called a religious
31. Id. at 997 (Bork, J., concurring).
32. “We know very little of the precise intentions of the framers and ratifiers of
the speech and press clauses of the first amendment. But we do know that they
gave into our keeping the value of preserving free expression and, in particular,
the preservation of political expression, which is commonly conceded to be the
value at the core of these clauses.” Id. at 996. Bork defended “evolving constitu‐
tional doctrine” against then‐Judge Scalia’s objections. Id. at 995. Judge Scalia, in
dissent, said that Bork was not engaged in the “application of existing principles
to new phenomena . . . but rather alteration of preexisting principles in their appli‐
cation to preexisting phenomena on the basis of judicial perception of changed
social circumstances.” Id. at 1038 n. 2 (Scalia, J., dissenting).
33. 726 F.2d 774 (D.C. Cir. 1984).
34. The presumption arose from Bork’s requirement that any cause of action for
a plaintiff like tel‐Oren be explicit and not implied. See id. at 801 (Bork, J., concur‐
ring) (stating, “For reasons I will develop, it is essential that there be an explicit
cause of action before a private plaintiff be allowed to enforce principles of inter‐
national law in a federal tribunal.”).
35. Id. at 801–02. Bork derived his presumption from general principles of sepa‐
ration of powers and analogies to related doctrines like the act of state and politi‐
cal question doctrines. He did not argue that any existing doctrine required his
The economic approach represented “an enor‐
turn to constitutional law, however, took place in New Haven,
and that part of his work bears some of the hallmarks of the
Yale Law School. His claim that free speech protections can be
derived from structural features of the Constitution, for exam‐
ple, echoes that of Charles Black.
Indeed, the affinities be‐
Essay might well be titled, Structure and Relationship in the Legal
Although there are clear connections between Bork’s
thoughts and those of his intellectual antecedents and contem‐
poraries, his successors present a paradox. Bork’s conception of
law as consisting of basic values is anti‐formalist; it treats legal
norms as transparent to their purposes. It is anti‐textualist; the
specific words of enactments matter hardly at all. And history’s
relevance to it is quite limited.
Today, though, Bork’s most important followers in American
constitutional law and theory are generally text‐formalists of
one kind or another who rely extensively on history. If Bork
has any one intellectual heir it is Judge Frank Easterbrook—a
dominant figure in law and economics, a leading figure in con‐
stitutional law and theory, a judge on the Court of Appeals for
the Seventh Circuit, a University of Chicago graduate, and
former Assistant to Solicitor General Bork. Easterbrook is
probably the most important textualist on or off the bench.
Calabresi, are among the most important scholars of the Con‐
stitution’s text and history.
All three are formalists in that all
36. Edmund W. Kitch, ed., The Fire of Truth: A Remembrance of Law and Economics at
37. Id. at 201.
38. See C
(1969) (freedom of speech on questions of national poli‐
39. See, e.g., Caleb Nelson, What Is Textualism? 91 V
. 347, 347 (2005)
(identifying Easterbrook as a leading textualist).
40. Professor Manning has defended textualism as a methodology, see, e.g., John
F. Manning, Textualism and the Equity of the Statute, 101 C
has elaborated it, see, e.g., John F. Manning, The Absurdity Doctrine, 116 H
. 2387 (2003), and has applied it to important issues, see, e.g., John F. Manning,
understanding of the Fourteenth Amendment’s text as it applies to sex discrimi‐
nation, Steven G. Calabresi & Julia Rickert, Originalism and Sex Discrimination, 90
and interpretations of the Constitution’s structural provi‐
three distinguish sharply between the content of legal norms
and their purposes or the values they reflect.
Reading those scholars, and others of their contemporaries
who might be thought of as Borkian originalists, one might
think that they were followers, not of Robert Bork, but of
Bork’s own constitutional law teacher, William Winslow
Crosskey. The first two volumes of Crosskey’s great work, Poli‐
tics and the Constitution In the History of the United States, have as
their epigraph Justice Holmes’ formulation of objective textual
interpretation: “We ask, not what this man meant, but what
those words would mean in the mouth of a normal speaker of
English, using them in the circumstances in which they were
But unlike scholars like Easterbrook, Manning, and
Calabresi, Bork was in no sense a Crosskeyite. His methodol‐
ogy was fundamentally different from his teacher’s, and my
impression is that in Bork’s view Crosskey was, to put it gently,
The paradox is that Bork’s closest and most prominent fol‐
lowers are not Borkians in fundamental ways. The resolution of
the paradox, insofar as there is one, is to be sought in the com‐
mon impulse, as it were, behind Bork and his followers. That
impulse is the conviction that law is objective. In particular, it is
the convention that law is distinct from the normative views of
those who implement it. The interpreter’s task is to find out
what the law is, not to discover that it is the best that it can be.
Formalists find objectivity in rules as opposed to the reasons
for having them, and textualists find it in the meaning of words
rather than speakers. Robert Bork found it elsewhere, in values
and purposes that were posited by and for—but not made by
or for—judges. Those values and purposes, he thought, gave
the law its content and provided its justification. Quite possibly
he thought that inquiry into formal rules, and close readings of
texts, were often nothing but a game, a distraction from the real
point of law. I would say that law is fundamentally about rules.
For that reason, as another of Bork’s colleagues from Yale in
the 1970s said, if law is not a game, it is not not a game either.
sions based on close readings of the text, see, e.g., Steven G. Calabresi & Kevin H.
Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 H
OLITICS AND THE
ONSTITUTION IN THE
ISTORY OF THE
42. Arthur Allen Leff, Law and, 87 Y