A Long and Winding Odyssey

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Bork's publication of his theories sowed the first seeds of his current trouble. Writing in popular journals, starting with the New Republic in 1963, Bork attacked the proposed Public Accommodations Act, a civil rights measure, as an unconstitutional infringement of the right to free association. In 1968, at the culmination of his libertarian phase, he wrote a FORTUNE article advocating judicial protection for a variety of liberties, including privacy, not specifically mentioned in the Constitution.

His views on privacy and other libertarian ideals soon changed radically, - when Bork realized that his ideological outlook had taken another turn. After a year's sabbatical in England with his family, he returned to Yale in 1969 to find that his once lively seminar with Bickel had "gone flat." Recalls Bork: "When I asked him why, Bickel explained, 'It's because you're not saying those crazy things anymore.' I suddenly realized I'd basically adopted his position." He abandoned his belief that constitutional law could be made to conform to rigid ideological or economic principles. "I gave up trying to find bright lines. They're just not available."

The revelation eventually resulted in Bork's famous 1971 Indiana Law Journal article repudiating his prior attempts to find unwritten protections in the Constitution. In its place was Bork's version of what academics call interpretivism, or intentionalism. Unless the Constitution clearly specifies the protection of a core value, Bork wrote, "there is no principled way to prefer any claimed human value to any other." Only the "original intent" of the Constitution's framers should be used by judges in finding constitutionally protected values, he declared.

With typically provocative rhetoric, Bork used the article to single out a number of decisions as "unprincipled." Among them: the 1965 Supreme Court ruling that enunciated the right to privacy in overturning a Connecticut ban on contraceptives, and the Warren Court's series of one-man, one-vote pronouncements. Bork has never backed down from criticizing the privacy decision, a forerunner of the 1973 Roe v. Wade abortion ruling. But he found it necessary, under heavy scholarly criticism, to back away from another assertion in the 1971 article, that only "political speech" is protected under the First Amendment.