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Bork vs. Burke - A Dilemma For Conservatives:

One of the most interesting aspects of Robert Bork's version of conservatism, part of which I criticized in my recent symposium essay on his argument for wide-ranging government censorship, is how radical it is - in the sense of calling for drastic changes from the status quo. Although Bork praises Edmund Burke in his writings, the Borkean position is in serious tension with the "Burkean conservative" presumption against radical change and preference for gradualism that we debated here at the VC a few weeks ago.

In addition to calling for a ramping up of censorship to levels not tolerated by the courts for at least sixty years, Bork also argues for the near-abolition of judicial review, an institution that has grown over two hundred years. In his 1989 book, The Tempting of America, Bork argues that even the relatively restrained Supreme Court of John Marshall's era went too far in striking down legislation. In Slouching Towards Gomorrah (1996), Bork put forward a proposal to allow Congress to override judicial decisions striking down statutes by a simple majority vote. More broadly, Bork, in Slouching, rejects much of the last three hundred years of developments in in intellectual history of liberal democracy. He attacks the great thinkers of the Enlightenment, the Declaration of Independence, and John Stuart Mill for their emphasis on the importance of protecting individual liberty. The Declaration's invocation of the rights to "life, liberty, and the pursuit of happiness" is, according to Bork, "pernicious" if "taken . . . as a guide to action, governmental or private" (for citations, see my article on Bork and censorship linked above).

Both Bork's call for drastic changes in current policy and institutions, and his rejection of much of the Western tradition of individual liberty are seriously at odds with Burkean conservatism.

Not all conservatives go as far as Bork in urging radical change. However, many do support major divergences from status quo policies. This poses a difficult dilemma for those who also claim to be followers of the Burkean presumption against drastic change and in favor of tradition. By now, many of the policies that social conservatives want to alter have been in place for decades, long enough to become "traditions" in even a strong Burkean sense. Consider, for example, conservative proposals to make divorce far more difficult, ban most abortions, and privatize Social Security - all of which would drastically alter longstanding important policies. One can advocate a robust social conservative agenda, as Bork does, or one can advocate Burkean deference to tradition and a strong presumption against radical change. But it's hard to consistently advocate both at the same time.

To be completely clear, my own disagreements with Bork don't turn on the fact that he urges radical divergence from status quo policies and traditions. In my view, the Burkean conservative presumption against rapid change is largely unjustified. I object to Bork's policy prescriptions because I think they would move us in the wrong direction, not because I think we should be deeply suspicious of any major departures from the status quo. But social conservatives who sympathize with at least some of Bork's views yet also want to be Burkeans face a more difficult dilemma than I do.

One possible way to resolve the contradiction would be to argue (as Bork in fact does) that liberal policies of the last several decades themselves went against previous longstanding traditions. That may be true. But if radical change today can be justified on Burkean conservative grounds merely because it would return us to some earlier tradition, then almost anything can be justified. Nearly every conceivable public policy has been enacted at some point or other in human history, often lasting long enough to become traditional. For example, social conservative would then have to accept broad toleration (and even celebration) of homosexuality because doing so would reinstitute the pro-homosexual traditions of ancient Greece - the origin of Western civilization.

Duncan Frissell (mail):
and privatize Social Security

Give me a break!. If the Soviet Union lasted for 75 years, does that mean that a Burkean shouldn't overthrow it because it was traditional. What about slavery?
5.28.2008 4:50pm
Ilya Somin:
Give me a break!. If the Soviet Union lasted for 75 years, does that mean that a Burkean shouldn't overthrow it because it was traditional. What about slavery?

If he wants to be consistent in his deference to tradition, then yes. Indeed, many defenders of slavery actually did argue for it on the ground that it was a tradition that had lasted for thousands of years.
5.28.2008 4:55pm
ithaqua (mail):
"Give me a break!. If the Soviet Union lasted for 75 years, does that mean that a Burkean shouldn't overthrow it because it was traditional. What about slavery?"

Precisely. Which is why Burke was not a conservative, not as the term is understood today; and why 'conservatives of doubt' like Andrew Sullivan, who want to restore Burkean conservatism to the Republican Party, advocate nothing less than the destruction of conservatism.
5.28.2008 4:56pm
Skyler (mail) (www):
I have no idea what was going through Reagan's head when he nominated this man. That anyone would consider him "conservative" using the currently popular definition is puzzling. His opinions are about the only time "fascist" really does apply to the "right." Conservatism is a lot of things, but the current definition is closer to individual liberty than liberals are, and not at all like Bork's views.

The problem with the question posed comparing Bork to Burke is that the political realities don't align titles of political movements to the poly sci definitions of those titles. Bork is no conservative by any definition except that he was briefly associated with Reagan. Thank goodness his nomination was squashed.
5.28.2008 4:59pm
ithaqua (mail):
"Nearly every conceivable public policy has been enacted at some point or other human history, often lasting long enough to become traditional. For example, social conservative would then have to accept broad toleration (and even celebration) of homsexuality because doing so would reinstitute the pro-homosexual traditions of ancient Greece - the origin of Western civilization."

Indeed. Genuine American conservatism is not about adherence to 'tradition' for its own sake, but about adherence to one specific tradition, that is, the Bible-based, pro-freedom ideology of the Founding Fathers.

Strange as it sounds, because society has strayed so far from that ideology, modern conservatism is radical and reactionary, working towards a sweeping and all-encompassing social transformation, much like Communism did before its triumph. This is not because conservative values have changed; it is because society changed around them.
5.28.2008 5:03pm
Ilya Somin:
Bork is no conservative by any definition except that he was briefly associated with Reagan. Thank goodness his nomination was squashed.

I disagree with Bork's views on many issues. However, I do think that he can legitimately claim to be a conservative. Broadly speaking, Bork favors relative laissez-faire in the "economic" realm, while arguing for strong government regulation of "moral" issues. This is consistent with position taken by the majority of those referred to as conservatives in modern political discourse. Bork's opposition to judicial review is also not unusual among conservatives, though he takes it farther than most.
5.28.2008 5:13pm
Cornellian (mail):
More broadly, Bork, in Slouching, rejects much of the last three hundred years of developments in in intellectual history of liberal democracy. He attacks the great thinkers of the Enlightenment, the Declaration of Independence, and John Stuart Mill for their emphasis on the importance of protecting individual liberty. The Declaration's invocation of the rights to "life, liberty, and the pursuit of happiness" is, according to Bork, "pernicious" if "taken . . . as a guide to action, governmental or private" (for citations, see my article on Bork and censorship linked above).

Hard to believe there are still people around who think Bork would have been a good Supreme Court appointment. Kudos to Arlen Specter for torpedoing the Bork nomination. Specter nailed it when he said there was not a single member of the Senate from either party who agreed with Bork's view of the Constitution.
5.28.2008 5:14pm
Oren:
Bork put forward a proposal to allow Congress to override judicial decisions striking down statutes by a simple majority vote.
In what sense does any provision of the Constitution that says "Congress shall make no law . . ." have any meaning then?
5.28.2008 5:14pm
Sigivald (mail):
I had thought that Burke's appeal to tradition (at least in Kirk's reading) was that traditions were valuable because they'd been tried-and-true.

Many of the social changes of the past decades (or the Soviet Union) were not tried-and-true, but imposed-and-politically-hard-to-remove.

Not quite the same thing, no?
5.28.2008 5:16pm
Oren:
Broadly speaking, Bork favors relative laissez-faire in the "economic" realm, while arguing for strong government regulation of "moral" issues.
This is silliness incarnate. A pornographic film sold for profit is economic and (allegedly) immoral. A company mistreating its workers is economic and (allegedly) immoral. If Ilya, or anyone can provide any rigorous way to distinguish whether a particular activity can be subject to government intervention on a "moral" basis or it must be left alone I will be very impressed.
5.28.2008 5:18pm
Bender (mail):
I don't see any conflict between being a Burkean conservative and seeing the need for the radical changes that Bork envisions. The culture, economy, and polity of this country have been subjected to the one-way ratchet of radical, "progressive" change for over 150 years; a century and a half of exactly the kind of radical tinkering that Burke abjured. It should be obvious that it will take a prolonged reversal of course to recover the country from this extended tampering with fundamental institutions and values.
5.28.2008 5:21pm
unhyphenatedconservative (mail):
Ilya's argument is basically liberals get to change the rules then conservatives have to shut up because those are the new rules. Talk about unilateral disarmament.
5.28.2008 5:21pm
ithaqua (mail):
"Ilya's argument is basically liberals get to change the rules then conservatives have to shut up because those are the new rules. Talk about unilateral disarmament."

This.
5.28.2008 5:28pm
Virginia:
You make a good point, though I think it applies with different strength to different "longstanding" policies. To choose one example, repealing no-fault divorce laws and going back to the divorce laws of 40-50 years ago would be a pretty radical change (which doesn't necessarily make it wrong; just un-Burkean). No-fault divorce was adopted democratically, for the most part, and if there was any serious political opposition it has long since died down. Even most critics of no-fault divorce stop short of advocating a wholesale return to the old laws. They've accepted the basic contours of the law however much they may decry its results.

By contrast, the near-total legality of abortion was imposed b judicial fiat in most states 35 years ago, and has gone unaccepted by a large segment of society ever since(I'd put the opposition at about 40%, but you can argue for a higher or lower number based on which polls you read.) The political parties continue to take opposing positions on the issue, and a tremendous amount of lobbying goes into defending and opposing the present and future legality of abortion, the passage of 35 years notwithstanding. There's no comparable controversy over no-fault divorce.

To sum up, it seems to me that more than just longevity is needed to make something a tradition entitled to Burkean deference, assuming one cares to accord such deference to traditions.
5.28.2008 5:29pm
DDG:
Ilya there is no way that Burkean conservatives have to support a one-way ratchet of change in the way you propose. You seem to have conflated the Burkean position with something very much like stare decisis as applied by the Supreme Court. Regardless, modern conservatism (in the American sense) is generally about adherence to a particular set of traditional principles and ideals. And it certainly is not wedded to the design of particularly poorly thought-out (and often changed) New Deal program/Ponzi scheme (i.e. Social Security).
5.28.2008 5:33pm
Frater Plotter:
The radical movements Burke was writing against were far more radical than anything within the political mainstream today. The French revolutionaries, recall, attempted to "reform" society not by just passing a bunch of laws, but by killing whole classes of people.

Very few people in the political discourse today actually advocate political killings as a means of social reform. There are a tiny number on the far left (a tiny fraction of environmental activists, a few unreconstructed revolutionary socialists) and a few on the right (Ann Coulter comes to mind). These folks do not have any kind of mass movement or real intellectual support the way the French Revolution did.

The political mainstream today is Burkean. Even groups that are regarded as "radical" (like MoveOn.org) aren't pushing for institutional transformation or overthrow, and certainly not for anything near what was considered radical in Burke's day.
5.28.2008 5:46pm
LM (mail):
As irksome as it can be to reason with an ideologue, the contradictions you reveal in Bork's positions illustrate why the guy who really ruins your day is the authoritarian with ideological pretenses.
5.28.2008 5:53pm
Oren:
DDG, I see no reason why Burke would not support gradual democratic change (the highly dubious "ratchet" term adds nothing to the discussion) that you've described. He would be wary and counsel against doing it too fast or without fully thinking it through but he wasn't an absolutist in requiring that no change happen.
5.28.2008 6:24pm
DangerMouse:
I object to Bork's policy prescriptions because I think they would move us in the wrong direction, not because I think we should be deeply suspicious of any major departures from the status quo.

Gee, there's a freaking surprise.

But if radical change today can be justified on Burkean conservative grounds mereley because it would return us to some earlier tradition, then almost anything can be justified. Nearly every conceivable public policy has been enacted at some point or other human history, often lasting long enough to become traditional. For example, social conservative would then have to accept broad toleration (and even celebration) of homosexuality because doing so would reinstitute the pro-homosexual traditions of ancient Greece - the origin of Western civilization.

Do you really think we're stupid enough to believe this? You're only making this ridiculous argument becase, as you said, you reject Bork's policies. But for the record: just because something was done at some point in some other culture in some other context does not make it TRADITION. It is not AMERICAN TRADITION, and it certainly isn't WESTERN TRADITION because it was blended and removed from the culture after the ascent of Christianity. Tradition is the time tested values, teachings and methods of a culture. Greek homosexuality, Roman gladitorial contests, etc, are not part of the continued teachings and values of our culture. Bork's policies are continued to be valued and taught, and so are a continued part of our tradition.
5.28.2008 6:31pm
Oren:
DangerMouse, any introductory course in ancient humanities will quickly reveal that all of Western civilization is predicated on values first laid down by the Greeks and Romans. Perhaps you can argue that the good portions of those traditions were incorporated into American tradition and the bad parts rejected but that's quite different from what you said.
5.28.2008 6:38pm
ReaderY:
Palming off the latest developments forced on us by the judiciary as the "Western tradition" is right out of 1984. The practical elimination of obscenity laws forced on society by the courts was an anti-democratic innovation. To characterize a suggestion that this radical change might have gone a bit too far as anti-Burkean -- characterizing the rapid effective elimination of obscenity law enforcement as tradion and a call for a slowing down as innovation -- seems like rhetoric straight out of 1984.

George Orwell warned of the dangers of totalitarian regimes who come in and make radical changes and then have the audacity to claim that there way is the way things have always been. This seems to be going on here. Frankly, regimes' rhetoric to be acting in the interests of "liberty" can be as false as their rewriting of history. The litmus test is whether one is willing to give people a say in their laws and the running of their own society. If "liberty" comes to mean that ones own way of thinking always manages to prevail and becomes nothing more than a pretense for striking down laws that one doesn't happen to like, such a claim can't be taken any more seriously than a claim that the latest social change manifesto being forced down our throats for our own good is really "tradition".
5.28.2008 7:05pm
ReaderY:
In my view, the Court should have given obscenity a simple up or down vote, either declaring the whole enterprise unconstitutional, or declaring it unconstitutional and leaving definitions and such to the states.

What has really annoyed people is the court's micromanaging of the business, setting boundaries based on the Justice's personal views and claiming that doing so is somehow authorized by the First Amendment. Among other difficulties, the idea that the Constitution somehow requires that the opinions of hired-gun experts about what a community's standards be prefered to the standards set by its legislatures goes completely against the foundations of our republican form of government.

It's quite possible that obscenity laws would either have been repealed or gone into practical non-enforcement if the Court hadn't stepped in. But if this occurred it would have been the people's decision through their elected representatives, not a regime imposed on them by the Court.
5.28.2008 7:16pm
DangerMouse:
Perhaps you can argue that the good portions of those traditions were incorporated into American tradition and the bad parts rejected but that's quite different from what you said.

Actually, that is what I said when I said that Greek homosexuality and Roman gladitorial contests were not part of "our culture." Tradition looks to the past but not all of the past is tradition. Tradition has a contemporaneous aspect to it as well, because for a past practice to be "traditional" it must be continued into the present in some aspect. That's my understanding of tradition.
5.28.2008 7:56pm
Oren:
DangerMouse, that's a reasonable interpretation of tradition and one I will concede answers my complaint. But now I think you have a bigger problem in that you've now undercut the notion that a Burkean can advocate reform to return us to a previous set of traditions. Particularly, many posters seem to advocate rolling back the (allegedly) ill-thought out reforms of the past 50 years -- those are not, in your mind, traditions since they have been in remission for a little while.
5.28.2008 8:12pm
DangerMouse:
But now I think you have a bigger problem in that you've now undercut the notion that a Burkean can advocate reform to return us to a previous set of traditions.

But those traditions are continued to be valued and taught and upheld in our culture. They might not be the majority, but they're still very contemporaneous to many, many people. There's a big, big difference between some practice, teaching, or value that has died out, and one that the elite don't practice anymore but the people in secret still do.
5.28.2008 8:32pm
Oren:
But I'm sure a small number of homosexuals have continually existed in the minority since Roman times and preserved and taught their values. Why don't they get the same consideration?
5.28.2008 9:00pm
Aleks:
Re: If the Soviet Union lasted for 75 years, does that mean that a Burkean shouldn't overthrow it because it was traditional. What about slavery?

When something is either a vast and unjust outrage or a major failure, then it needs to be changed. And even so, we ought be careful about how we do it lest we end up doing even worse. France's ancien regime was definitely a failure, and (somewhat) an injustice, but Burke recognized that the explosion of Revolutionary violence that followed was hardly to be celebrated, as some did. And speaking of slavery, America's mode of getting rid of it is nothing to brag about either when almost every other nation did so with little or no blodshed.

Re: the Bible-based, pro-freedom ideology of the Founding Fathers.

The Founders did not base their views on the Bible. Can we please drop that silly piece of propagandist disinformatsiya? They were gentlemen of the Enlightenment who respected sane and sensible religion as part of the tradition they had inherited. But they also rejected the extremes of of what they saw as superstition and irrational emotionalism. Their political beliefs were no Bible-based than Newton's mathematics was.

Re: The practical elimination of obscenity laws forced on society by the courts was an anti-democratic innovation.

So was the elimination of miscegenation laws (among many other such examples). So what? The American govermment was never designed to be a purely majoritarian institution. Indeed, the founders had a horror of that notion, calling it "Mobocracy". Judicial review is one of several features that constrain majoritarian practice. To be sure, we can all criticize specific Court decisions as wrong-headed and pernicious, but we should never, ever doubt the wisdom of judicial review per se.
5.28.2008 9:10pm
DangerMouse:
But I'm sure a small number of homosexuals have continually existed in the minority since Roman times and preserved and taught their values. Why don't they get the same consideration?

Because the tradition is not homosexuality, but the open, public, widespread approval of man-boy relationships as seen in ancient Greece. Just as if a handful of people believe that public battles to the death are ok today doesn't mean society has a tradition of open, public, widespread game-like atmosphere of such acts as seen in ancient Rome.
5.28.2008 9:12pm
Oren:
Because the tradition is not homosexuality, but the open, public, widespread approval of man-boy relationships as seen in ancient Greece.
Except you wrote that a still-valid tradition is
one that the elite don't practice anymore but the people in secret still do.
So openness is not necessary (according to you) but rather only a teaching of openness as a value, which itself can go on in secret.
5.28.2008 9:15pm
Jack (mail) (www):

Consider, for example, conservative proposals to make divorce far more difficult, ban most abortions, and privatize Social Security - all of which would drastically alter longstanding important policies.

None of these "traditions" have existed for more than a generation. No-fault divorce and guaranteed access to abortion were both products of the 70s and can reasonably be viewed as a radical experiment gone wrong. A conservative, whether Burkean or Borkean, should have no problem reconciling their repeal with any reasonable definition of "resistance to drastic change".

Social Security has been around for a bit longer, but I fail to see how privatization constitutes a drastic change. We are only now experiencing a generation that is retiring having lived their entire lives under the expectation of Social Security benefits. However, most of the proposals for privatization that I have heard would not affect that generation but the succeeding ones.
5.28.2008 9:25pm
Blogster:
What a moron Bork have to be to end up "teaching" at Ave Maria?
5.28.2008 9:27pm
DangerMouse:
So openness is not necessary (according to you) but rather only a teaching of openness as a value, which itself can go on in secret.

If the tradition itself is a tradition of openness, then it'd seem that the tradition would have to continue teaching openness. The teaching of that tradition can go on in secret by the general multitude even if the elites and the people in power reject those traditions. Many religious pracrices in the Soviet Union were done in secret by the majority of the people. There are such things as cultural undercurrents that rise up to reinvigorate traditions. This doesn't mean a handful of people get to claim that their wacky practices that existed thousands of years ago constitute a cultural tradition. Sorry.
5.28.2008 9:28pm
Oren:
Jack, part of the Burkean deal is the acceptance of democratic reform. If you can get a majority of Americans to let you touch Social Security or repeal no-fault divorce, let me know.

Incidentally, wouldn't the return of no-fault divorce just lead to the same "set-up" situation as was common back when? Couple wants to get divorced, the man arranges to have lunch with couple's mutual female friend. Wife comes home and "catches" them cheating, marriage is dissolved for asserted infidelity. Seems like a wonderful way to encourage the utmost respect for the legal system, eh?
5.28.2008 9:36pm
LM (mail):
Blogster:

What a moron Bork have to be to end up "teaching" at Ave Maria?

It's at best a questionable debating strategy to call someone a moron without proofing for typos.
5.28.2008 9:40pm
Oren:
This doesn't mean a handful of people get to claim that their wacky practices that existed thousands of years ago constitute a cultural tradition. Sorry.
So please tell me how I can rigorously distinguish between "wacky" practices and ones deserving recognition?

I mean, a lot of people in the Soviet Union continued to believe (in the face of oppression) that a cosmic jewish zombie can make you live forever in bliss if you symbolically eat his flesh and drink his blood while telepathically telling him that you accept him as your master so he can remove an evil force from your soul that is present in all humanity because a talking snake convinced a rib-woman to eat a magical fruit. If I judge that to be wacky, does that make it untraditional? I don't think so -- that's just my view not some divinely mandated conclusion.
5.28.2008 9:42pm
DangerMouse:
So please tell me how I can rigorously distinguish between "wacky" practices and ones deserving recognition?

I don't know what you mean by "deserving recognition." The Russian Orthodox Church was suppressed during the Soviet era, yet the traditions of that church were secretly but widely upheld and practiced by the people. This is about describing reality. At some point, the practices of a handful do not amount to a "cultural tradition." Maybe they would be a "localized tradition" or something else, maybe not.

It would be idiotic to claim that just because there was a tradition of sacrificing children to Moloch in the ancient world, that because one guy burns his kid alive means the tradition is still in existence. Only a lawyer on this blog would be stupid enough to make that claim.

You want some rule of rigorous distinction? Ask a cultural anthropologist.
5.28.2008 9:52pm
Ricardo (mail):
None of these "traditions" have existed for more than a generation. No-fault divorce and guaranteed access to abortion were both products of the 70s and can reasonably be viewed as a radical experiment gone wrong. A conservative, whether Burkean or Borkean, should have no problem reconciling their repeal with any reasonable definition of "resistance to drastic change".

It's one thing to try to slow down social change in deference to tradition. It is another to scrap institutions that were the decades' old by-product of change that's already occurred.

For instance, in a world where more women are going to college and graduate school or are working in full-time jobs and where people are getting married later in life -- and more are forgoing marriage altogether -- making divorce more difficult again might make marriage less common. Since social institutions and attitudes have evolved since the time before no-fault divorce, going back to the old regime could have many unintended and unknown consequences.

That's not necessarily my argument for the status quo, but how would a Burkean argue against such a line of reasoning? Similarly, it's a lot easier to argue against Social Security before it has been created than to argue against it after the government has already taken on huge financial obligations to every American on a payroll.
5.28.2008 10:19pm
SenatorX (mail):
I think you could try to make an argument against rapid change by tying in the rule of law. My understanding of this concept is, part of it is, that people are freer when they know what the laws are and can therefore plan accordingly. Having laws change rapidly leads to confusion about what is legal at any given time and this equates to less freedom for the citizen.

I think this is separate though from determining "good laws" or traditions from "bad" ones. As far as I'm concerned what's good is what empowers individuals. This means Bork is clearly on the side of evil.
5.28.2008 11:09pm
Charlie (Colorado) (mail):
I think there's an aspect of this that's been missed; at least I haven't seen it argued.

It would seem to me that rapid, radical change is generally undesirable because it takes our political systems a significant length of time to change, and a significant length of time to react to the effects of that change; during that time, there can develop a fair bit of metaphorical momentum --- people with vested interests in the effects of the change.

(Consider, for example, civil forfeiture laws: they were a pretty big change at the time they occurred, the results seem not to have been as desirable as they might have been, but in the mean time a significant number of police departments are enriched themselves through them and don't want to stop.)

This makes it very difficult to reverse course and reconsider a rapid and ill considered change.

That doesn't mean rapid change is everywhere bad; it does mean that rapid change is more risky than slower, more deliberate change.
5.28.2008 11:30pm
unhyphenatedconservative (mail):
Oren,
Practicing family law attorney here. I'll tell you from experience that no-fault divorce has not instilled some great love for the law. The same lies are there, just for different things. But that's all good because the 70s "reforms" were just terrific for families.
5.28.2008 11:57pm
Oren:
uhc - Would you really prefer the old system though?
5.29.2008 12:02am
steve (mail):
Ilya,
In your previous post on Burke, you seem to be overstating Burkes "overstatement" of the importance of tradition. For instance, Burke thought a law which gradually made the slave trade illegal over a period of 10 years was a good mix between deference to social traditions, which are dangerous to fondle with so rapidly, and an acknowledgment of the social and natural repulsion the slave trade had grown into in British society. The law, he felt, was adequate for British society, and he might have come up with something different for a different cultural context.

Also, I don't think Burke ignored the costs of traditions and overvalued the benefits of them. Burke seemed perfectly willing to jettison tradition if it seemed natural for society to do so. I imagine Burke wouldn't have had a problem with women voting, and likely would have been long before the 19th Amendment was eventually passed.

As he said, we should care for society as we would our dying father, with due diligence, but with a cautious eye to what is known and not known.

I could be wrong about all of this, but this is my reading of Burke.
5.29.2008 12:20am
unhyphenatedconservative (mail):
Oren,
Given that I think that the new system has given rise to most of the crap we deal with, maybe. Of course, I haven't yet reached the jaded state where all I care about is replenishing the evergreen retainer, even though it hurts all parties involved.

Seriously, though, listening to folks like you, Ilya and other assorted liberals/libertarians, I'd think America was a police state before the 1960s/70s.
5.29.2008 12:52am
unhyphenatedconservative (mail):
"But if radical change today can be justified on Burkean conservative grounds merely because it would return us to some earlier tradition, then almost anything can be justified. Nearly every conceivable public policy has been enacted at some point or other in human history, often lasting long enough to become traditional. For example, social conservative would then have to accept broad toleration (and even celebration) of homosexuality because doing so would reinstitute the pro-homosexual traditions of ancient Greece - the origin of Western civilization."

Yep. Returning to the status quo which has been under assault by a couple of decades of liberal activism would be exactly the same as overturning two millennia of social and religious tradition. Just the same.

Ilya, is this the kind of logic you use when teaching? If so, do your students actually have to pay for it? Or do you just hold street corner bull sessions?
5.29.2008 1:00am
Ad Vericundium (mail):
unhyphenatedconservative said:

Ilya, is this the kind of logic you use when teaching? If so, do your students actually have to pay for it? Or do you just hold street corner bull sessions?


uhc, is this the kind of ad hominem attack you use in court? If so, do your clients actually have to pay for it?

Seriously, one sarcastic quip and an attack on Ilya's ability as a teacher does not constitute actually engaging his ideas. And if you are not here to meaningfully grapple with his views on law and policy then why, exactly, are you here?
5.29.2008 6:13am
CJColucci:
Seriously, though, listening to folks like you, Ilya and other assorted liberals/libertarians, I'd think America was a police state before the 1960s/70s.

Hell -- if Bork will let me say that -- half of them think it still is.
5.29.2008 12:13pm
Ben P (mail):

Give me a break!. If the Soviet Union lasted for 75 years, does that mean that a Burkean shouldn't overthrow it because it was traditional. What about slavery?



I think there's actually at least a semi-plausible argument to be made regarding the soviet union and Burkean Conservatism.

The very reason Russia today is "slouching" back toward authoritarianism is significantly because of a strong popular backlash against the chaos of the mid 90's.

To be clear, I don't think anything was good about the Soviet Union, but it was arguably less bad under Brezhnev and Gorbachev than it was under Stalin.

So the question is, was the Soviet Union as it existed under Gorbachev such an unmitigated evil that it had to be disposed of as soon as possible even at the result of a decade of near anarchy and a return to authoritarianism, or could a better result have obtained by gradually getting rid of the old systems and making some sort of transition to a most western style government?

I'm not sure what the answer is, but there's at least a plausible argument both ways.
5.29.2008 1:05pm
Randy R. (mail):
Bork's arguments about SCOTUS and morality and his view of the laws indicate that he believes that the SCOTUS's influence and jurisidiction should be greatly reduced, and the Congress should be greatly enhanced.

Bork has written extensively about his view that America is going down the tubes morally, and he's just the man to reverse it. He can't stand the fact that women have abortions, that gays are not jailed, the some people smoke pot, that some people enjoy porn, some married couples get divorced, and some people have sex before they get married. Oh, and the kids are going to hell.

His fatal flaw is that he assumes he is in sync with the American people, and they will insist on laws passed to eliminate all these things and somehow magically turn our country back to the time of his youth, circa 1950. That's why he wants to eviscerate SCOTUS' review of these laws, which would otherwise be unconstitutional. Perhaps there are some people in favor of eliminating some of these freedoms, but it's a stretch to say that most Americans would favor elimination on all of them.

Furthermore, I suspect that Bork is not a federalist, because otherwise the states might allow these freedoms, and I don't think that he would cotton to that either.

Basically, the guy wants to be king of the world so he can refashion it in his image because, well, he knows what's best for us.
5.29.2008 1:16pm
AndrewK (mail):
The original post: "[M]any of the policies that social conservatives want to alter have been in place for decades, long enough to become "traditions" in even a strong Burkean sense."

I disagree, and I think this is the crux of the matter...

Ricardo: "Since social institutions and attitudes have evolved since the time before no-fault divorce, going back to the old regime could have many unintended and unknown consequences."

I think an argument Bork might make against both of these claims would point out the small time scale of no-fault divorce vis-a-vis the time scale of the development of marriage (thousands of years?). As a result, the consequences of maintaining so-called "no-fault divorce" have not yet been fully actualized.

Furthermore, if no-fault divorce is the sort of thing that is fundamentally incompatible with certain of our more basic legal norms (e.g. personal responsibility writ large... perhaps freedom of contract or the family unit), an argument could be made that such change could never become a tradition. That is: in legal system X, divorce will never be a tradition until some further radical change takes place.

I think that this is could be analogized to the abortion issue. One could argue that abortion on demand cannot properly be considered a tradition until the controversy dissipates, which may only occur once we accept ex cathedra pronouncements of SDP rights by the Supreme Court without any prior legal basis (I'm not saying that the Supreme Court did this in Roe).

The point is only that "acceptance" of a certain legal norm is a tricky thing, and it is not obvious that the entirety of Roe can be digested in 40 years, or that the entirety of judicial review can be digested in 200. I see a pronouncement that Bork is urging radical change. I see no theory of radical change itself here, though. The point is that Bork, functionally, doesn't seem to be arguing a "going back" at all. Contrary to the last paragraph, I'm not sure Bork really is arguing to "return us to some earlier tradition."
5.29.2008 6:25pm
Aleks:
Re: So the question is, was the Soviet Union as it existed under Gorbachev such an unmitigated evil that it had to be disposed of as soon as possible even at the result of a decade of near anarchy and a return to authoritarianism, or could a better result have obtained by gradually getting rid of the old systems and making some sort of transition to a most western style government?

That's exactly what Gorbachev &Co tried. Problem was, by 1985 the Soviet Union had rotted to the point where the whole thing could only be held together by totalitarian means. Once Gorbachev lifted the totalitarian controls the dam gave way and there was no stopping the USSR's dissolution.
5.29.2008 6:26pm
ReaderY:
To me the fundamental issue is not whether change is gradual or not, but it is imposed from outside or occurs with the consent of the governed.

Anyone who has followed the history of slavery comes out with a sense of how easy it is for people to delude themselves into thinking that their way is the only rational way.

The rhetoric of 19th century slaveholders portraying abolitionists as religious extremists seeking to impose their morality on others with motivation other than pure hate is so strikingly similar to rhetoric one hears today that one cannot come out of the experience without being more willing to take such rhetoric, whenever one hears it and at whatever object it is directed, with healthy dosing of salt. Slaveholders generally believed they preaching love and tolerance. One of the most remarkable stories in the book Slavery Defended was the writings of a former abolitionist preacher who saw Southerners for the first time, and perceived them as real human beings. This perception caused something of a spiritual transformation in him and he began preaching tolerance and respect for others lifestyles and against judging others. What's remarkable about his becoming a pro-slavery advocate is that he probably became emotionally healthier than he was before and probably a better person to be around. The subjective emotional experience of judgmentalism vs. tolerance seems to have nothing to do with the underlying merit of what is being tolerated or judged.
5.29.2008 7:16pm
Tony the Tiger:
Wow... Very interesting post that provoked a very poor set of comments. Of Bork's books, I've only read Tempting, and I don't think I agree with Prof. Somin's characterization of it.


In addition to calling for a ramping up of censorship to levels not tolerated by the courts for at least sixty years, Bork also argues for the near-abolition of judicial review, an institution that has grown over two hundred years. In his 1989 book, The Tempting of America, Bork argues that even the relatively restrained Supreme Court of John Marshall's era went too far in striking down legislation.


1. I realize that this doesn't necessarily refer to Tempting, but where has Bork argued for the near-abolition of judicial review?

2. In Tempting, I think Bork described the Marshall court as "activist," but the impression I remember having when I read it is that Bork thought the Marshall court's activism was justified at the time because the Supreme Court was a new institution. John Marshall wrote some great opinions, but he did some strange things as well, like (1) not recusing in Marbury, and (2) writing anonymous op-eds in the newspapers defending his own opinions.
5.29.2008 7:21pm
Michael B (mail):
"He attacks the great thinkers of the Enlightenment, the Declaration of Independence, and John Stuart Mill for their emphasis on the importance of protecting individual liberty." Ilya Somin

Bork trenchantly critiques a few aspects of some of the ideas of the great thinkers of the Enlightenment. Great thinkers are precisely and only that, great thinkers, not demi-gods whose writ is to be accepted w/o question. Likewise, what he had to say regarding the Declaration could not, as I recall, best be characterized as an "attack," likewise again with J.S. Mill, whom he critiqued as pertains to some particulars. I don't have my copy at hand and am not in line with Bork in prominent areas, but if memory serves me properly the above is a gross misrepresentation, certainly so of Tempting, which was a superb - and superbly restrained - defense of original intent thinking.

However, regardless of one's views, pro or con, well articulated, trenchant thinking when it comes to these subjects is precisely what is needed if serious change is sought, rather than Change™ as political sloganeering. The Left's long, Gramscian march through the institutions does not represent "much of the last three hundred years of developments in in intellectual history of liberal democracy" in any very healthy sense, relative to classical liberal foundations and institutions, more viably conceived within that broad framework. Hence thinking seriously about those foundations, from the ground up, is precisely what is necessary and likewise reflects, again precisely, what needs to be variously redressed. Otherwise progress will continue to be defined by ideologically vested "progressives," i.e. by the Left.

And that begins to hint at the irony at play this political season. Because of his maverick quality, McCain actually does represent a hope for some more serious change, while Obama represents Change™ as a political slogan only, indeed he veritably epitomizes that type of sloganeering, derived from BDS and similar sources. For example, oil exploration in northern Alaska, in shale oil deposits in the Rockies, in some other areas as well (the eastern Gulf of Mexico) should all be considered at the federal legislative level, all of which has been proscribed by the Left/liberal status quo crowd. But that is one example only at the more practical level, rather than the level being addressed herein.
5.29.2008 10:44pm
Aleks:
Re: Slaveholders generally believed they preaching love and tolerance.

Where do you get that from? Slave-holders justified slavery by positing that Blacks were not human, or at least not fully human, and so could be classed with beasts of burden, legally and morally.

Re: One of the most remarkable stories in the book Slavery Defended was the writings of a former abolitionist preacher who saw Southerners for the first time, and perceived them as real human beings.

Most Southerners did not own slaves, and as such an Abolitionist would have had not quarrel with them.

Re: What's remarkable about his becoming a pro-slavery advocate is that he probably became emotionally healthier than he was before and probably a better person to be around.

OK, please cite some sources on this. It has the stench of deliberate disinformation about it.
5.29.2008 10:44pm
Elliot Reed (mail):
For what it's worth, very few other democracies give their high courts the power to overturn acts of the national Parliament as unconstitutional, and they seem to do OK. I couldn't say whether eliminating judicial review would be a good system here (I personally doubt it would be) but it's not quite as crazy as you might think.
Seriously, though, listening to folks like you, Ilya and other assorted liberals/libertarians, I'd think America was a police state before the 1960s/70s.
I don't think "police state" is the right description, but it was a vicious apartheid state.
5.30.2008 1:59am
Elliot Reed (mail):
Where do you get that from? Slave-holders justified slavery by positing that Blacks were not human, or at least not fully human, and so could be classed with beasts of burden, legally and morally.
Didn't the slaveholders have a lot of arguments for slavery? I'm pretty sure it was argued that slave importation was justified because imported slaves were being Christianized. And I think nearer to the Civil War people tried arguing that slavery was actually good for the slaves because they were happy, etc. I'm sure there were other arguments as well.
5.30.2008 2:02am
David Codrea (mail) (www):
I'm surprised no one brought up his statist position on the Second Amendment:

"The Supreme Court has consistently ruled that there is no individual right to own a firearm. The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government. Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose."

This guy would have been a disaster. And it's distressing to hear how many rue his "mistreatment" on the grounds that he is a "conservative."

That label without qualification always produces more knee-jerk sloganeering than thoughtful analysis--and does untold damge when not discovered until power has been bestowed…
5.30.2008 11:04pm
Been There:
Re. David Codrea


I'm surprised no one brought up his statist position on the Second Amendment:


I'm surprised so few have noticed his switch on that issue:

— see Appendix p. 2.
5.31.2008 9:25am