A Process of Denial: Bork and Post-Modern Conservatism

ion." In The Tempting of America, the formulation is the same but the content has changed: questions of value must be left to the majority unless the original understanding produces a principle that trumps them. Mr. Bork now has the form of his basic argument, a form that can be filled using his method of the moment. So far, we have seen Mr. Bork hold most of the available conservative legal theories I discussed earlier. He advocated in turn libertarianism, traditional judicial restraint, judicial activism to enforce natural rights, and Wechsler's theory of neutral principles. The only schools of thought missing from the list are the economic analysis of law, social conservatism, and the philosophy of original intent. These, though, were soon to follow. During this entire period, Mr. Bork had been hard at work on the articles later published as The Antitrust Paradox, which was finished in 1978. The shibboleths of his argument looked reasonably familiar. Within the limited frame for observation provided by antitrust, therefore, it is worth noting that the general movement has been away from legislative decision by Congress and toward political choice by courts, away from the idea of competition and toward the older idea of protected status for each producer, away from concern with general welfare and toward concern for interest groups, and away from the ideal of liberty toward the idea of enforced equality.45 Mr. Bork believed these trends to be "ultimately incompatible with the preservation of a liberal capitalist social order."46 His prescription was a fascinating one. At first it appears that Mr. Bork was proposing a form of originalism in which "political choice by courts" is replaced by "legislative decision by Congress." The question then becomes, "Should the antitrust statutes be enforced according to the original intent of Con42. Id. at 10. 43. Id. at n.20. 44. The Wechslerian method is required because of the vagaries of historical interpretation. Mr. Bork is now willing to concede authoritativeness to the power of original intent, but has the same critical view of its determinacy. "It is the fact that history does not reveal detailed choices... that permits, indeed requires, resort to other methods of interpretation." Id. at 13. 45. R. BORK, THE ANTITRUST PARADOX (1978). 46. Id [Vol. 3: 263 16 Yale Journal of Law & the Humanities, Vol. 3 [1991], Iss. 2, Art. 5 http://digitalcommons.law.yale.edu/yjlh/vol3/iss2/5