would reduce judicial discretion, butnnot much. The search for originalnmeaning can lead to “the constitutionalntext, records of the Philadelphianconvention, records of ratifying conventions,nthe newspaper accounts ofnthe day, the Federalist Papers, thenAnti-Federalist Papers,” as well as legislativenand executive constructions,nearly treatises, “the structure of thendocument and the government it created”nand — we’re still not finished —nthe need to avoid “[r]esults that arenparticularly awkward.” This is not anmethod of construction, it is an explosionnin a library. Is a conflict betweennthe Federalists and the Anti-Federalistsnover federalism to be resolved by referencento a Philadelphia gazette of 1787,nor by an analysis of the structure of thenUS government? Using this catholicnversion of original meaning, a clevernBorkian judge could probably arrive atnany results he chose.nSo fond is Bork of extrinsic evidencenof legislative intent that he would havenjudges refuse to enforce laws that comenwithout How-To manuals for their application.nHe derides the FourteenthnAmendment’s “privileges and immunities”nclause as “an ink blot” and “andead letter” because no one is surenexactly what its drafters intended.n”There being nothing to work with,nthe judge should refrain from working.”nThe idea that a judge shouldnrefuse to enforce a law merely becausenof a lack of legislative history is alien tonthe Anglo-American legal tradition.nIndeed, the legal historian H. JeffersonnPowell recently demonstrated that thenFramers for the most part rejectednreliance on external evidence of thendrafter’s or ratifier’s intent, seeking tonfind intent in the text itself. If Bork’sntheory were adopted, then the lapidarynphrasing of not only the Constitution,nbut most federal and state laws, wouldnforce judges to go on strike.nBork himself violates his weird andnnovel rule when he suggests that thenSupreme Court should have struckndown Tennessee’s apportionment lawnin Baker v. Can (1962) under thenmysterious constitutional clause guaranteeingn”every State in the Union anRepublican Form of Government.”nAlthough the Supreme Court has nevernstruck down a law under this provision,n”Baker v. Carr was a case innwhich the guarantee clause shouldnhave been applied, precisely because ansituation in which the majority is systematicallynprevented from governing isnnot what the Founders meant by anrepublican form of government.” Howndoes Bork know? Has he forgotten thenslave states? Or Rhode Island, whichnuntil the 1840’s permitted only eldestnsons of landowners to vote? Or thenrepublics of Switzerland, the Netherlands,nVenice, Lombardy, and Greece?nWhy is the Fourteenth Amendment’snprivilege and immunities clause “andead letter,” but not the republicannguaranty clause?nAnother example illustrates thennow-you-see-it-now-you-don’t naturenof Bork’s fidelity to original meaning.nIn Meyer v. Nebraska (1923) the SupremenCourt struck down a Nebraskanlaw making it a crime to teach a foreignnlanguage to a child who had not passednthe eighth grade, while two years laternin Pierce v. Society of Sisters the Courtninvalidated an Oregon law makingnpublic school attendance until theneighth grade compulsory. In each casenthe Court struck down the state lawsnbecause they offended “substantivendue process” (that is, natural justice, asndivined by the Supreme Court).nInstead of finding judicial restraintnappropriate in these circumstances,nBork agrees with the results, and suggestsnalternate rationales that arenscarcely less dubious than substantivendue process. According to Bork, thenCourt should have struck down thenNebraska law in Meyer as a violation ofnthe First Amendment because “learningnGerman . . . was thought by thenstate to pose the danger of the inculca­nnntion of foreign ideas contrary to thenbest interests of the United States.”nThe compulsory public education law,nBork suggests, violated not only thenfree speech clause but the “free exercisenof religion” clause of the FirstnAmendment, because the Oregon statuten”was largely the product of anti-nCatholic prejudice.”nThe same Bork who elsewhere innthe book writes, “The actual Constitutionndoes not forbid every ghastly hypotheticalnlaw,” shrinks from the logicnof his position when he confrontsnghastly actual laws. Bork would havenseverely criticized the First Amendmentnarguments against the state lawsnin Meyer and Pierce, one suspects, ifnsomeone else had made them. Can anstate have no other reason for censorshipnto forbid bilingual education innearly grades? Why is compulsory publicnschool attendance a violation of thenfree exercise clause, but not compulsoryntaxation to support public schools?nTo compound the irony, the SupremenCourt, in order to abide by Bork’sntheories, would have had to concludenthat the First Amendment had beennapplied to the states as well as thenfederal government by “incorporation”nin the Fourteenth Amendment inn1868. The “incorporation” doctrinenwas not even invented until the 1940’s,nand Bork himself criticizes it because itn”enormously expanded the Court’snpower over the states.”nFrom this kind of judicial restraintnthe liberals have little to fear. Bork,nmoreover, is opposed to overrulingnmany mistaken liberal judicial decisions.n”Thus, it is too late to overrulen. . . those decisions validating certainnNew Deal and Great Society programsnpursuant to the congressional powersnover commerce, taxation, and spending.nTo overturn these would be tonoverturn most of modern governmentnand plunge us into chaos.” However,n”it was never too late to overrule”n19th- and early 20th-century casesnshielding business from governmentnregulation, “because they were unjustifiablenrestrictions on government power.”nRest in peace, Franklin andnLyndon: “There are times when wencannot recover the transgressions ofnthe past, when the jjest we can do is saynto the Court, ‘Go and sin no more.'”nThe argument that overturning establishednbut mistaken precedentsnFEBRUARY 1990/33n