Legacy of Judge Robert Bork

"The United States was founded on a Madisonian system, which means that it contains two opposing principles that must be continually reconciled.  The first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are the majorities.  The second is that there are nonetheless some things majorities must not do .... some areas of life in which the individual must be free of majority rule."

"The Court's power is legitimate only if it has, and can demonstrate in reasoned opinions that it has, a valid theory derived from the Constitution of the respective spheres of majority and minority freedom.  If it does not have such a theory but merely imposes its own value choices, or worse if it pretends to have a theory but actually follows it own predilections, the Court violates the postulates of the Madisonian model that alone justifies its power.  It then necessarily abets the tyranny either of the majority or of the minority."

The above excerpts are from an essay entitled 'Was Bork Right About Judges' published in the winter 2011 edition of Harvard Journal of Law and Public Policy.  Essay is by federal circuit court judge Thomas B. Griffith, United States Court of Appeals District of Columbia.