A Correction They Didn’t Print: The Denver Post and Judge Bork

January 2, 2013 by Rob Natelson
Filed under: All Postings 

RGN Montpelier '07A Denver Post article on the passing of Judge Robert Bork (Dec. 20) says, “He advocated a view of judging known as ’strict constructionism’ or ‘originalism.’”Actually, the writer was confused. Those two terms have very different meanings.

An originalist believes the Constitution, like other legal documents, should be construed as understood by the people who adopted it. This is also called “intent-based construction” or (to use Chief Justice John Marshall’s term) “fair construction.” It was the usual way of applying the Constitution until ” progressives” began to dominate the Supreme Court during the New Deal.

Strict construction (not “strict constructionism”), on the other hand, is systematically applying narrower interpretations in cases of ambiguity.

Suppose my wife gives me a grocery list that includes “vegetables.” I know she means to include tomatoes, and if I’m originalist I’ll buy some. But the list is technically ambiguous, because tomatoes are sometimes considered vegetables and sometimes fruits. So if I’m a strict constructionist I’ll resolve the issue by disregarding her intent and not buying them—which shows how deviating from originalism can get you in trouble.

Judge Bork had some interest in originalism, but tended to be a strict constructionist as to constitutional rights and a broad constructionist as to government power. Some of the controversy he generated came from his departures from originalism rather than from adherence to it.


Incidentally, I sent this correction to the Post, but the paper elected not to print it.

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