By Daniel A. Farber
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Extra resources for Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations
Like Bork’s justiﬁcation of Brown and the incorporation doctrine, allowing precedent some unspeciﬁed weight gives up the game. Deciding whether a new case is squarely governed by an older case, or whether it is an extension that should instead by governed by the true meaning of Constitution, will require considerable judicial discretion. Similarly, deciding whether an existing case is old enough to warrant the solicitude that prompts these scholars to exempt it from their originalist sweep also requires judicial discretion.
Bork would do away with almost all of this doctrine. Bork’s most recent book is even less scholarly and more radical than his earlier work. In it, he suggests that the entire Enlightenment foundation of the Constitution is misguided. 81 He condemns the memorable phrases of the Declaration of Independence, labeling them “pernicious” for the modern era. ’”84 These suggestions, coupled with his earlier proposals for doctrinal revisions, illustrate just how far Bork is willing to go in reshaping our constitutional landscape.
His mission is law reform, or at least reforming judicial practices, rather than philosophy. 31 Thus at the root of his formalism is, paradoxically, at least as much a THE FORMALIST CRUSADE OF ANTONIN SCALIA . 39 pragmatic effort at institutional change as a deeply principled theoretical stance. Scalia’s core pragmatism allows him to dodge some of the pitfalls that trip up true believers such as Bork. It also, however, leaves his rhetoric ungrounded in fundamental principle, making his fervent denunciation of judicial opponents seem inﬂated and self-righteous rather than principled.