Shaping Modern Constitutional Theory: Bickel and Bork Confront the Warren Court

Abstract

Today constitutional theory is marked by the staying power of originalism, interest in nonjudicial constitutional interpretation, and reconsideration of when judicial review is “countermajoritarian.” Alexander M. Bickel and Robert H. Bork shaped these concerns in the 1960s and early 1970s while they were close friends and Yale faculty colleagues. Both recognized that the Warren Court's liberal activism, when considered in the aftermath of legal realism, demanded a clearer theory of the limits of legitimate judicial power. This article examines their legal and constitutional thought in this period and then briefly surveys how their ideas continue to configure constitutional theory. Current defenders and opponents of originalism are still compelled to wrestle with the imprint of positivism, formalism, and judicial restraint Bork gave the doctrine. Current challenges to the “countermajoritarian difficulty” in favor of nonjudicial interpretation must contend with this influential formulation of Bickel, and they owe more to the Bickel of constitutional “colloquy” than has been appreciated.

Nothing New Under the Sun: The Development of Habeas Corpus and Executive Power in the Bush Administration

“…As President Reagan's failed Supreme Court nominee in 1987, Robert Bork serves as the Republican coalition's most intelligent and consistent representative. Bork's judicial philosophy, which was inspired both by Herbert Wechsler and Alexander Bickel, is still in many ways the most developed and recognizable position in conservative legal ideology (Bork 1990a(Bork , 1990bO'Neill 2003). Aside from his Constitutional positions that relate to domestic Constitutional adjudication and theory, he has also forcefully advocated for increased presidential power war and foreign policy powers.…”