Somin Writes in Chicago Law Review Online Symposium

The late Judge Robert H. Bork was the subject of a University of Chicago Law Review online symposium in which Professor Ilya Somin contributed one of eight essays.

Somin wrote on the topic "The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy." 

"The tension between democracy and originalism is an important challenge for Bork’s constitutional thought, as well as that of other originalists who place a high value on democracy," says Somin. "We could call the trade-off between the two the 'Borkean dilemma.'”

Somin discusses this tension, concluding,"Today, intellectually honest originalists of any political stripe have little choice but to confront the tension between democracy and judicial enforcement of the original meaning directly. In doing so, they will have to at least partially subordinate one of these goals to the other."

The Borkean Dilemma: Robert Bork and the Tension Between Originalism and Democracy, University of Chicago Law Review. By Ilya Somin.


"But such a tension can arise if the original meaning was in fact designed to severely constrain the power of political majorities. The Framers of the Constitution would have been surprised at Bork’s assertion that their handiwork was “devoted primarily to the mechanisms of democratic choice.”16 In reality, most of them were very suspicious of democracy, which they sought to constrain in numerous ways. They perceived democracy as dominated by often-ignorant and easily misled voters, and as a threat to individual rights, especially the right to private property.17 The framers of the Reconstruction Amendments were, in some ways, even more suspicious of democracy than those of the original Constitution. They sought to impose a wide range of new constraints on political majorities at the state level, influenced by the experience of majoritarian oppression of African Americans, abolitionists, and others in the pre–Civil War period.18"

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