“Robert Bork is Still Relevant,” Says Robert Bork

From a Newsweek interview:

How about the Equal Protection Clause of the 14th Amendment? Does he still think it shouldn’t apply to women?

“Yeah,” he answers. “I think I feel justified by the fact ever since then, the Equal Protection Clause kept expanding in ways that cannot be justified historically, grammatically, or any other way. Women are a majority of the population now—a majority in university classrooms and a majority in all kinds of contexts. It seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.”

I feel substantially on-record when I say that I don’t follow Robert Bork’s vision of the Constitution. But here, neither does he. The conservative position against reading women into the Equal Protection Clause has to be that there is no “equity of the statute” to the Constitution: it cannot be expanded to cover new definitions of liberty, or groups we belatedly recognize as our equals, absent some amendment. Though I disagree with that construction — as did the Founders — his is a legitimate way to readthe Constitution, but also one that shouldn’t be affected by whether women are “a majority in university classrooms.” Whether women “need” the Equal Protection Clause should be entirely irrelevant to his analysis.

Originalism is a curious (and violent) thing: if you follow it to its logical conclusion, you’ll wind up erasing most of the Supreme Court’s greatest contributions to American history. But if you follow it only halfway, you wind up a fraud. Keep this in mind as Bork’s intellectual successors scramble to rise again to prominence, on the back of the tea parties.

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3 comments

  1. One logical conclusion to Bork’s seems to be that it’s perfectly fine to discriminate against white people – they make up a majority of the population, after all. I wonder if that’s quite what he intended.

    1. Private or governmental discrimination?

      1. I guess discrimination by states as long as we’re talking 14th amendment. No idea what the law is regarding private discrimination.

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