History, Modernism, and the Originalism of Robert Bork

Since the late 1980s, Republicans have enthusiastically committed themselves to “originalism” — the proposition that current constitutional disputes should be resolved by determining what the Constitution meant to the people who drafted and ratified it. Democrats have rejected originalism with equal intensity. That division had a variety of sources, but one of the most important were growing doubts in the 1970s about modernism and historicism that made the past appear more relevant to contemporary affairs than it had seemed in prior decades. This belief emerged across the ideological spectrum. It was not only conservative political scientists and legal academics in the 1970s who turned to history to justify their jurisprudential views. It was also, Duncan Kennedy, Morton Horwitz, and other left-wing legal theorists, as well as left liberals who embraced approaches to constitutional interpretation based on the republican political ideologies of revolutionary-era America.

This paper demonstrates the importance of these developments for originalism by explaining why Robert Bork’s 1971 article entitled Neutral Principles and Some First Amendment Problems was so central to the development of the theory. The article, written while Bork was a Yale law professor and almost two decades before his failed Supreme Court nomination, has been cited over 4,000 times and helped make originalism legitimate in academic debate. Its influence, this paper will argue, is due to its ability to make originalism palatable to a resolutely modernist legal academy while simultaneously opening space for decreasingly historicist understandings that were becoming more popular on the contemporary right.