Bork v. Burke
![handle is hein.journals/hjlpp19 and id is 525 raw text is: BORK V. BURKE
THOMAS W. MERRILL*
I would like to make the case for a conservative alternative to
originalism. Much of the discussion that has taken place over the
last two days has proceeded on the assumption that there are two
choices. One is Robert Bork's originalism,1 justified by various
values near and dear to conservative hearts, such as the rule of
law, continuity with the past, the principle of democratic ac-
countability, and so forth. The other is to flee into the hands of
the so-called nonoriginalists, and embrace, to quote Judge Eas-
terbrook quotingJustice Brennan, the judge's personal confron-
tation with the well-springs 6f our society.2
My thesis is that there is a third option, which I will call con-
ventionalism.' Conventionalism draws much of its inspiration
from the writings of a British politician and man of letters, Ed-
mund Burke.4 I will argue that there is a Burkean or convention-
alist approach to interpretation that is distinct from both
Borkean originalism and from the various types of nonoriginal-
ism favored in the legal academy, which I will lump together
under the label normativism. I will also argue that the conven-
tionalist approach can be justified by the same conservative val-
ues-the rule of law, promotion of democracy, and so on-that
* John Paul Stevens Professor, Northwestern University School of Law.
1. See generally ROBERT H. BoRy, THE TEaMPING OF AmEucA: THE PoLrrc SF znuoN
OF THE LAW (1990).
2. Frank H. Easterbrook, Alternatives to Originalism?, 19 HAuv. J.L. & PUB. POL'Y 479,
479 (1996) (quoting Justice William J. Brennan, Jr., Speech to the Text and Teaching
Symposium, Georgetown University (Oct. 12, 1985), in TnE GREAT DEBATE: INTERPRETING
OuR WRrrrEN CONsTrruTION 11, 20 (Federalist Soc'y 1986)).
3. The term conventionalism has been appropriated by other commentators and,
unfortunately, has considerable variability in meaning and connotation. See Peter M.
Shane, Conventionalism in Constitutional Interpretation and the Place of Administrative Agencies,
36 AM. U. L. Rrv. 573, 576 n.23 (1987) (Aside from the customary capacity of labels to
oversimplify, my particular label [conventionalism] suffers from the variability with which
it is used in scholarship.). One especially notable (and hostile) treatment of convention-
alism is found in RONALD DwoRmna, LAw's EMPiRE 114-150 (1986). The interpretative the-
ory of Stanley Fish has also been described as a form of conventionalism. See Owen M.
Fiss, Conventionalism, 58S. CAL. L. REv. 177 (1985). The conventionalism described in this
Article does not directly correspond to these or other theories operating under that
name.
4. For an especially insightful treatment of the implications of Burke's political philoso-
phy for modern interpretational controversies, see Ernest Young, Rediscovering Conserva-
tism: Burkean Political Theory and Constitutional Interpretation, 72 N. CAR. L. REv. 619 (1994);
see also Anthony T. Kronman, Alexander Bickel's Philosophy of Pudence, 94 YAiE LJ. 1567
(1985) (describing Alexander Bickel's prudentialjurisprudence, and noting that Bickel
drew heavily on Burke).](ViewImageLocal?handle=hein.journals/hjlpp19&div=51&collection=journals&method=preview&ext=.png&size=3)
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Bork v. Burke
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