Ed Driscoll

The War For The Constitution: What's At Stake In '08

In Opinion Journal, Gary L. McDowell writes that the 20th anniversary “of Robert Bork’s failed nomination reminds us what’s at stake in the coming election”:

Recalling Mr. Bork’s experience serves to remind us of how precarious the judiciary’s balance is at any given time, and how today’s highly politicized process prevents even the most gifted and prominent jurists from expecting to be confirmed (or perhaps even desiring the chance to undergo the ordeal).

But more important, it is a reminder that presidents must be willing to undertake what they know will be a horrific fight in order to see the bench filled not with liberals or conservatives or partisans, but with constitutionalists.
In this sense, the Bork vote is not just a matter of quaint historical interest, but the first great battle in the contemporary war for the Constitution–a continuing war that must be won if true self-government is to prevail.

Time has shown that Mr. Bork’s theory of constitutional interpretation remains very much alive; he was defeated but his central idea was never discredited. That theory of interpretation and its implicit belief in restrained judging should continue to guide anyone who believes that the inherent arbitrariness of government by judiciary is not the same thing as the rule of law.

Read the whole thing.