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Robert Bork and the Contradictions of Conservatism:

Robert Bork's latest book epitomizes two key internal contradictions in conservative thought: the failure to recognize that government regulation of culture has many of the same flaws as economic regulation and the clash between constitutional originalism and judicial restraint. Not all conservatives make these errors. But both are common enough in the conservative movement to warrant critical scrutiny.

An outstanding scholar of the pathologies of antitrust policy and other economic regulation, Bork also advocates sweeping government censorship of the culture, including "censorship" (his word, not mine) of an extensive range of sexually explicit, supposedly offensive, or violent media. Yet he barely even considers the possibility that the limitations of government that bedevil economic regulation might also impact government efforts at cultural regulation. For example, like economic regulation, cultural regulation can easily be "captured" by interest groups, including the sorts of politically correct left of center interests that Bork and his fellow social conservatives intensely dislike. From a social conservative perspective, is it really a good idea to give government sweeping power over the culture if much of the time that power will be wielded by liberals or leftists?

I explore this contradiction in Bork's thought more fully in this symposium article. As Judge Frank Easterbrook pointed out at the same symposium, the central theme of Bork's influential antitrust scholarship is that government shouldn't "second-guess markets;" that lesson, of course, is equally applicable to cultural markets. The problem is not just that Bork supports one type of regulation more than another. It is that he largely ignores even the possibility that the two might have common weaknesses. Unfortunately, many (though by no means all) other conservative thinkers commit the same mistake.

Richard Epstein's review effectively nails the second major contradiction in Bork's thought: the tension between his support for constitutional originalism and his advocacy of broad judicial deference to the political branches of government:

Quite simply, any commitment to originalism must give broad readings to broad constitutional protections. A categorical insistence on judicial restraint is inconsistent with a faithful originalism that reads constitutional text against the background of the political theory that animated their adoption. Ironically, Bork's insistence on the dominance of democratic processes finds, at most, lukewarm support in the Constitution, which at every turn — the electoral college, the early appointment of senators by state legislators, the presidential veto — shows a deep ambivalence toward the democratic processes that he selectively champions....

The same dilemma applies to the scope of federal powers that were clearly and strictly enumerated in Article I under the heading "all legislative powers herein granted." Yet everyone knows that the great transformation wrought by the New Deal judges allowed, in Wickard v. Filburn (1942), the federal government to regulate a farmer that fed his own grain to his own cows under the commerce clause that provides that "The Congress shall have power…to regulate commerce, with foreign nations, among the several states and with the Indian tribes." No originalist examination of text, structure, or history could defend that tortured interpretation.

As Epstein suggests, a consistently originalist Court would probably constrain the political branches of government much more than the current court that Bork denounces as anti-democratic. Many of the wide-ranging functions of the federal government that the Court currently upholds under the Commerce Clause could not withstand originalist scrutiny. Epstein also points out that property and contract rights would get more judicial protection under an originalist approach than Bork would like - a view supported by a growing body of historical scholarship by people like co-bloggers David Bernstein and Randy Barnett. Liberal scholar Jennifer Nedelsky has argued that the Framers sought to provide broad protection for property rights (a state of affairs she decries). Eugene Volokh has shown the the original meaning also would provide extensive protection for the sort of symbolic speech (such as flag burning) that Bork believes should be subject to wide-ranging censorship. The list can easily be extended.

One can advocate broad judicial deference to the legislature or one can be a consistent originalist. But it is getting harder and harder to support both simultaneously. Unfortunately, Judge Bork and many other legal conservatives continue to do exactly that. As Epstein notes, Bork is no fool but a man of "evident intellectual and stylistic talents" who made a major contribution to scholarship. The contradictions in his thought are not just personal idiosyncracies, but deeper shortcomings of a larger body of conservative thinking.

Obviously, liberal and leftist political thought has contradictions too, as does my own libertarianism (though I think it has fewer than the available alternatives). However, the shortcomings of rival ideologies don't justify those of conservatism.

UPDATE: Incorrect link to my symposium article criticizing Bork's argument for censorship has been corrected.

Andrew Hyman (mail) (www):
Hmm, what do we have to fear from leftist censorship? That fully-clothed people will be censored? Or non-expletives? Or non-violent scenes? :-)
7.11.2009 12:33am
Alan K. Henderson (mail) (www):
Hate speech ("hate" being arbitrarily defined as criticism of stuff that the Left cherishes).
7.11.2009 12:39am
PubliusFL:
"Speech codes" at universities, "hate speech" laws, etc. could be considered examples of leftist censorship attempts.
7.11.2009 12:40am
Andrew Hyman (mail) (www):
Yes, I suppose they might go after "hate speech". But anti-obscenity laws were around when the First Amendment was written, whereas laws against hate-speech were not.
7.11.2009 12:44am
Andrew Hyman (mail) (www):
Not that I'm arguing for censorship here. It's just that the framers viewed some kinds of consorship as acceptable, and others as unacceptable.
7.11.2009 12:47am
NoahDavidSimon (mail) (www):
I see the Kirkpatrick Doctrine... and I would have to agree with Bork.
7.11.2009 1:00am
Oren:

From a social conservative perspective, is it really a good idea to give government sweeping power over the culture if much of the time that power will be wielded by liberals or leftists?

Even as a (sort-of) liberal, it's pretty obviously not a good idea.


Many of the wide-ranging functions of the federal government that the Court currently upholds under the Commerce Clause could not withstand originalist scrutiny.

Sure, but not because of anything related to a market of cultural ideas.

Presumably, Banned in Boston would be a legitimate exercise of the General Powers of the State under Bork's theory of the first amendment, even if it beyond the power to Congress to do a similar thing nationwide.
7.11.2009 1:01am
Oren:
Just to clarify my previous, my point is that I don't see the State governments as more benign a regulatory force that the Federal governments. The right to free expression surely does not truck with distinguishing the violation based on the political position of the violator.
7.11.2009 1:03am
Jon Roland (mail) (www):
During the late 20th century the word "liberal" came to mean someone whose copy of the Bill of Rights was missing the Second and Tenth Amendments, and the word "conservative" someone whose copy was missing the First and the Ninth.
— Jon Roland, May, 1994
7.11.2009 1:22am
jellis58 (mail):
hmm If i was to play Jon Ronalds game I would have included the last part of the 5th as missing from the liberals copy and the fourth as missing from the conservatives. Also I find threats to freedom of speech come from the left more than from the right so I dont think its really fair to put that one in the conservative missing catagory. If you were talking about the religion clauses I think thats a toss up because each side just resolves the tension between the establishment and free exercises clauses in a different way.
7.11.2009 2:28am
jellis58 (mail):
except on endorsement questions. theres not realy a tension in those cases and the conservatives clearly lose. Oh also going back the first, Eugene Volokh has this interesting piece showing that there is really no left/right split in the court on free speech cases along the traditional lines.
7.11.2009 2:34am
Oren:

Oh also going back the first, Eugene Volokh has this interesting piece showing that there is really no left/right split in the court on free speech cases along the traditional lines.

He's also got a pretty good collection of examples of both the left and the right ignoring free speech when it suits them. Same for Federalism.
7.11.2009 2:35am
Ricardo (mail):
A very interesting and critical article on the intellectual evolution of Robert Bork by James Boyle is here.

What is especially interesting is the slight of hand he employed in shifting from original intent to original understanding. I'll quote a section from the article:

The most interesting example of Mr. Bork's scholarly method is the point in The Tempting of America he takes sections from his 1986 article The Constitution, Original Intent, and Economic Rights which, as one might suspect from the title, defends original intent, and uses those sections to defend original understanding. At first glance, it appears that he does this by finding the words "original intent" wherever they appear in the article, and simply replacing them by "original understanding." ... Even the same counterarguments can be pressed into service. In 1986 for example, "[t]here is one objection to intentionalism that is particularly tiresome. Whenever I speak on the subject someone invariably asks: "But why should we be ruled by men long dead?" In 1990, Mr. Bork finds that "[q]uite often, when I speak at a law school on the necessity of adhering to the original understanding, a student will ask, "But why should we be ruled by men who are long dead." In the era of the word processor, this kind of "search and replace" jurisprudence has its attractions. Still, both the interpretive criteria and the identity of the `dead men' has changed, and Mr. Bork seems uneasy with that fact.
7.11.2009 3:25am
Splunge:
I would say Somin here makes the two classic errors of extended libertarian thought that have kept it, at least relative to conservatism, a minor political movement with only marginal cultural influence.

The first is to elide the profound differences between different types of government effort. Just because government regulation of the economic or political affairs of a nation is Epic Fail does not imply that all government efforts are equally stupid. The obvious counter-example is warfare, of course. I'd like to see an army founded along libertarian lines, ha ha, and the even rara avis would be one that actually won a battle.

In economic affairs, we can define the ends easily enough -- e.g. economic growth is always more than 4% and inflation and unemployment are always under 5%, a chicken in every pot, whatever -- but it is the means which are opaque to us, and our inability to reliably discover the means to our preferred economic ends is why (and only why) government can't successfully do it.

If it were actually possible for government to pass some law or other that impinged slightly on individual freedom but guaranteed economic prosperity, would anyone hesitate to support it? Only crazy people, or those who have never lived through a serious recession. The problem is, this is fairy dust. It can't happen.

But when it comes to "cultural" matters, the ends are very often all there are. If the desired cultural "end" is that homosexual men cannot marry, then we need waste no brainpower trying to figure out the means to such an end. We pass the law, we're done. If we decide the desired cultural end is that the FCC forbids all showing of naked female breasts on primetime TV, again there is no mystery people with PhDs need to probe on how to achieve this end. We pass a law, it's done. Do we believe smoking marijuana, murder, rape, arson should be illegal? Pass the law, done. (Whether making something illegal reduces its occurence is a different question -- and not a cultural values question.)

So the difficulty with much cultural issues is evanescent, compared to economic issues. Now, whether or not we should do these things is another question -- a philosophical question. But unlike the case of economic regulation, it is not primarily a practical question. That is Somin's first classic mistake.

The second is in assuming that men actually do want to live free of cultural taboos and constraining mythology, and that when it comes down from government it's the result of bad luck, clever electoral judo by "interest groups," and the like. I realize most libertarians comfort themselves in their 2% vote share loneliness with such fantasies, but fantasies they are.

Human beings are not like that. We want a "religion," as the sharp-tongued Ms. Coulter has ably pointed out, right and left, educated or not, sophisticated or not. We require a nondebatable nonthinking ideological framework in order to function. I would personally agree that I would rather not have it come down from those clowns in Congress. But the fact that it seems to want to now, where it didn't before, is in some sad part a result of the success of the libertarian viewpoint on a local level We are free as never before from cultural inhibitions delivered by your neighbors, families, and local communities. We frequently feel very little pressure from those sources.

But that is exactly why we see people clamoring like crazy to erect some new cultural religion at the national level. The cult of Green, for example. We have to have it. If we don't get it by belonging to a church and ostracizing the unwed mothers and gays -- or those bastard WASPS uptown -- then we'll just war over what kind we want to establish from Washington. There's no escaping it. The libertarian fantasy that we can all live completely free, as much as possible, from unthinking conformity to social mythology is based on a profound denial of human nature. And the failure to understand this -- that there is a necessity for a cultural "religion" -- is Somin's second classic mistake.
7.11.2009 3:54am
Mark N. (www):

But when it comes to "cultural" matters, the ends are very often all there are. If the desired cultural "end" is that homosexual men cannot marry, then we need waste no brainpower trying to figure out the means to such an end. We pass the law, we're done. If we decide the desired cultural end is that the FCC forbids all showing of naked female breasts on primetime TV, again there is no mystery people with PhDs need to probe on how to achieve this end. We pass a law, it's done. Do we believe smoking marijuana, murder, rape, arson should be illegal? Pass the law, done. (Whether making something illegal reduces its occurence is a different question -- and not a cultural values question.)

I don't doubt that some people analyze things this way. But I think many people do hold to an analysis closer to the economic one, which fails for many of the same reasons: they don't desire particular laws, but particular cultural outcomes, and they hope to press government into service to promote them via regulatory intervention. Many of the conservative censorships pushes, for example, have been organized around the idea that untrammeled free speech will undermine public morality---that if we allow people to speak blasphemy, counsel atheism, promote loose morals, advocate communism, distribute pornography, and the like, the youth will be corrupted, religion abandoned, hedonism run rampant, and we'll find our society slouching towards Gomorrah, as it were. The hypothesis is that an interventionist government can do a sort of cultural engineering---that we can keep the public's mores more traditional if we employ censorship to protect them from these malign influences. I suspect that often fails to achieve its ends, for much the same reason government interventionism in the economy fails to achieve its ends: the systems are complex, and heavy-handed intervention often fails or even backfires.
7.11.2009 4:30am
Falsifiabilitor:
But when it comes to "cultural" matters, the ends are very often all there are. If the desired cultural "end" is that homosexual men cannot marry, then we need waste no brainpower trying to figure out the means to such an end. We pass the law, we're done. If we decide the desired cultural end is that the FCC forbids all showing of naked female breasts on primetime TV, again there is no mystery people with PhDs need to probe on how to achieve this end. We pass a law, it's done. Do we believe smoking marijuana, murder, rape, arson should be illegal? Pass the law, done. (Whether making something illegal reduces its occurence is a different question -- and not a cultural values question.)
Your distinction between "cultural" matters and "economic" matters is, if not artificial, much less persuasive than you might think. What is the purpose of making something illegal other than to reduce its occurrence? Are you really forwarding any cultural value if you pass a law that pretty everyone ignores? Unless, of course, it is to forward the cultural value of disrespect and disregard for the law.

For most people who care, the real cultural issue is not merely whether various drugs (marijuana, heroin, cocaine, crack, etc.) are illegal, but the rate at which they are being used? How has the drug war been going? And at what cost to other "cultural" values such as personal freedom and liberty?

Likewise, for most people who care, the real issue is not merely whether abortion is illegal, but whether there are fewer abortions. Yes, making abortion illegal would probably lead to fewer abortions -- and more back alley deaths, more intrusion in into privacy, etc.

Making a meaningful "cultural" decision is not so simple as making something illegal, and one cannot avoid the cost benefit analysis.

Further, you contrast the hard "economic" questions with the easy "cultural" questions. Many "economic" issues are easy, or at least as easy as the abortion decision if one is willing to ignore secondary effects and unwanted consequences. Want to ensure that people don't starve to death? Simple, give everyone food stamps. Want to make sure everyone has health care? Fine, extend Medicare to everyone.
7.11.2009 5:37am
Doc Rampage (mail) (www):
Ilya, you are using the word "contradiction" to refer to something that would more reasonably be called a "conflict". Conflicts are not an intellectual or philosophical flaw. For example, many people have two conflicting goals in life: happiness and security. For most people, the most secure job they can get is not the one that would make them happiest. Yet these conflicting goals do not show that people are suffering from any sort of inconsistency, it only shows that they have to deal with a conflict.

In any reasonably complex arena of life there are going to be conflicting goals, and I should think that deciding constitutional law is reasonably complex. I very much doubt that Bork would be surprised to learn that the goal of deference to political branches and the goal of deference to the original meaning cannot be simultaneously solved in some cases involving interstate commerce. Like any rational person he would find a way to resolve the conflict, perhaps by giving one goal precedence or perhaps by finding some sort of median between the goals, but in neither case should he feel compelled by intellectual consistency to entirely repudiate one of the goals.

Your implication that he is unaware of this conflict strikes me as unlikely. Your implication that having these two conflicting goals is some sort of intellectual or philosophical failure strikes me as formalistic and dogmatic. Do you really think that a philosophy is better for having been shorn of all conflicting goals? Do you really believe that anything worthwhile can be accomplished with such a hyper-purist philosophy? Life isn't a mathematical system. There is no simple, fixed set of rules for proper behavior. Any decision worth calling a decision involves trade offs and compromises. Being aware of these trade offs and compromises is not an intellectual failure.

Your other "contradiction" isn't even a conflict. It might more reasonably be called a "contrast". Bork believes that the government has a different role to play in business than it does in culture. He apparently doesn't agree with your opinion that the negative consequences of both are similar and so there is no contradiction in his beliefs. I won't argue the issue here (partly because I'm not really on Bork's side), but I will at least note that your opinion is not obviously right. It is not obvious, for example, that the social goals of economic behavior (such as maximizing wealth) have the same causes and influences as the goals of pornography (such as the desire to maximize woodies) and even if they did, it is not obvious that results that are undesirable in one area would be undesirable in the other.
7.11.2009 5:38am
Eric T (www):
Did Bork also explore the contradicition between his tort "reform" theories and his slip and fall suit for "in excess of a million dollars," plus legal fees, plus punitive damages?

How seriously can anyone take a legal theorist that so willingly dumps his theories when convenient?
7.11.2009 6:32am
Public_Defender (mail):

But when it comes to "cultural" matters, the ends are very often all there are. If the desired cultural "end" is that homosexual men cannot marry, then we need waste no brainpower trying to figure out the means to such an end. We pass the law, we're done. If we decide the desired cultural end is that the FCC forbids all showing of naked female breasts on primetime TV, again there is no mystery people with PhDs need to probe on how to achieve this end. We pass a law, it's done. Do we believe smoking marijuana, murder, rape, arson should be illegal? Pass the law, done. (Whether making something illegal reduces its occurence is a different question -- and not a cultural values question.)

Was this sarcasm? It's just so obviously wrong. "We pass a law, done"???? Have we ended drug use, murder, rape, etc." We can pass a law banning same sex marriage, but that doesn't stop gay people from living together, having sex, or raising children together. To do that requires a much, much more intrusive set of laws and enforcement that's culturally impossible. So on that issue, the only choices we have are 1) whether we want to encourage gay monogamy or gay promiscuity; and 2) whether children of gay parents should have the same protections enjoyed by children of heterosexual parents.

Your comment is like saying we can pass a law mandating economic prosperity. Done.
7.11.2009 8:17am
fishbane (mail):
Your distinction between "cultural" matters and "economic" matters is, if not artificial, much less persuasive than you might think.

And

Your comment is like saying we can pass a law mandating economic prosperity. Done.

Exactly. Further: frequently, the failure to see this point dooms a lot of culture-war efforts from both sides, at least if you take arguments of goals at face value. Examples: Abstinence only education, diversity training, the drug war.

Of course, if you believe that reducing teen pregnancy isn't really the goal of abstinence education, that getting people to not use drugs isn't the goal of the drug war, and a harmonious melting pot not the goal of diversity education, that these are simply arguments that are more palatable than underlying motivations, then the efforts make lot more sense.
7.11.2009 10:24am
Desiderius:
Splunge,

"I'd like to see an army founded along libertarian lines, ha ha"

No sweat.

I'm sure there are better examples, but the current relative strength of our armed forces has a great deal to do with how widely discretionary authority is distributed within their organizational structures. Would that our liberal institutions were free to do likewise.
7.11.2009 10:36am
frankcross (mail):
I would think the classic example of cultural regulation was Prohibition. And it exhibited many of the pathologies of economic regulation
7.11.2009 11:59am
Cornellian (mail):
Robert Bork's latest book epitomizes two key internal contradictions in conservative thought: the failure to recognize that government regulation of culture has many of the same flaws as economic regulation and the clash between constitutional originalism and judicial restraint.

Bork also seems to assume there is a clear and obvious bright line between cultural issues which he wants the government to regulate, and economic issues, which he does not want the government to regulate.

Why is prostitution a moral issue for the government to prohibit rather than an economic transaction which the government should not be able to prohibit? Lots of people think some economic issues are moral issues. They think it is immoral to allow, for example, unconscionable contracts to be binding. Why does Bork get to decide where the moral part stops and where the economic part begins, anymore than anyone else?
7.11.2009 12:21pm
ChrisTS (mail):
Splunge:

I take it you are a kind of economic skeptic - thinking no one can know how to achieve lasting wide-spread prosperity. But, if this is what you think, why is just leaving things to a 'market' going to be any better? I don't imagine we can hope to achieve by luck (or invisible hands)what we cannot achieve through intelligent action.

Further, at least some regulation of markets might prevent/ameliorate unintended and avoidable harms that result from the activities of those markets. Marx had fun with the passage of the first U.S. law limitng the hours of child laborers (I believe it was a Mass. law limiting them to something like 10-12 hours per day). But, heck, it was an improvement in the lives of those children, even if only a modest improvement.
7.11.2009 12:34pm
ChrisTS (mail):
Further on economies and cultural 'values':

I also have to agree with those who note that cultural management is not so easy an affair as Splunge suggests.

One serious complication is deciding who gets to determine 'cultural' ends. When it comes to something such as control of my embodied life - reproductive freedom - I really do not want the government taking its cues from people who think my life is worth no more than that of a zygote.
7.11.2009 12:36pm
John Moore (www):
Discussing the movement rather than Bork (whose views do not represent conservatives)...

Modern onservative philosophy has a libertarian tendency of distrusting the abilities of government. Unlike libertarians, conservatives recognize that there are places where government action is appropriate, flaws and all. The obvious examples are military action, maintenance of a court system, and providing (and certifying) police. Also, a lot of conservatives recognize that in our modern society, it is appropriate to provide "social safety nets," but prefer to incentivise private charities over government bureaucracies.

Modern social conservatism has a split between those of us who oppose government's active enabling of undesirable behavior (e.g. funding of anti-religious art) and those who would use government to impose significant restrictions (such as censorship). We also have a conflict in dealing with "victimless crime" such as drug use.

Generally speaking, conservatives tend to define a different set of personal behaviors as crimes than liberals ( drug use vs. "hate speech"). Both sides have a spectrum of levels of preferred government action regarding those crimes.

As was pointed out, is not a contradiction in conservatism between the libertarian and statist wings in areas outside of economics - it is a tension.
7.11.2009 12:44pm
Randy R. (mail):
Cornellian: "Why is prostitution a moral issue for the government to prohibit rather than an economic transaction which the government should not be able to prohibit? Lots of people think some economic issues are moral issues. They think it is immoral to allow, for example, unconscionable contracts to be binding. Why does Bork get to decide where the moral part stops and where the economic part begins, anymore than anyone else?"

Absolutely. And it gets even more complicated than that. If Bork wants to make prostitution illegal, as it is immoral, then to be consistent, he has to make all trades of sex for money or things of value illegal. So if rich man wants a trophy wife, how different is that from prostitution? If a man dates a woman and showers her with diamonds in the expectation of sex in return, that's prostitution. But of course, in Bork's circles, that's 'okay' they are rich people and probably know their merlot from their cabernet.

It becomes a matter of class, status, and even timing. Suicide done quickly, like with a gun, poison or pills, is immoral. But suicide through smoking cigarettes, alcoholism, or failing to seek proper treatment and the like, so long as it takes a several years to die, is somehow deemed perfectly moral.
7.11.2009 12:57pm
Public_Defender (mail):

Why is prostitution a moral issue for the government to prohibit rather than an economic transaction which the government should not be able to prohibit?

Because it's so closely tied with serious sexual abuse and human trafficking. Prostitution is not just expensive Eliot Sptizer call girls. Those are the exceptions. The prostitutes I've seen in my cases are often driven to it by childhood sexual abuse (sometimes by my clients), drugs, or human trafficking.

I'd argue for making it legal to prostitute oneself, but illegal to be a John, pimp. or madam. The law should give prostitutes a way out and should hammer those who prey on others. But the line between willing participant and victim is just to hard to judge in individual cases. So punish the pimp, the madam, and the John, but offer help to the possible victim.

I think that many people who advocate legalizing prostitution don't really understand the industry.
7.11.2009 1:11pm
Randy R. (mail):
Bork had this to say recently:

Speaking in an interview published Tuesday by Cybercast News Service, Judge Bork discussed the contentious nature of modern politics.
"Everything is up for debate these days. I can't think of anything that isn't," he said.
"You are going to get Catholic hospitals that are going to be required as a matter of law to perform abortions," he claimed.
"We are going to see in the near future a terrible conflict between claimed rights of homosexuals and religious freedom… You are going to get Catholic or other groups' relief services that are going to be required to allow adoption of a child by homosexual couples. We are going to have a real conflict that goes right to the heart of the society."
Asked whether there was a freedom of conscience clause anywhere in the Constitution that might prohibit the U.S. government from compelling a religious hospital to perform abortions, he replied:
"Well, the free exercise of religion clause might fulfill that role."
7.11.2009 1:11pm
John Moore (www):

If Bork wants to make prostitution illegal, as it is immoral, then to be consistent, he has to make all trades of sex for money or things of value illegal. So if rich man wants a trophy wife, how different is that from prostitution? If a man dates a woman and showers her with diamonds in the expectation of sex in return, that's prostitution. But of course, in Bork's circles, that's 'okay' they are rich people and probably know their merlot from their cabernet.


You really don't see the difference? Sad.
7.11.2009 1:16pm
Oren:

You really don't see the difference? Sad.

I think he sees a difference and makes it out to be one of degree, not kind.
7.11.2009 1:24pm
einhverfr (mail) (www):
I think government should second-guess cultural markets far less than economic markets. In some cases, economic markets should be left largely alone (perfect competition cases), but close regulation in others is important (natural monopolies, for example-- I also think that loans and insurance businesses are good examples of where regulation is needed).

The basic issue is that although there are exceptions to the idea of perfect competition in economic markets (for example, without regulation, can you choose which company offers you telephone services over twisted pair copper wire?) these exceptions are caused by large infrastructure layouts which effectively preclude competition. They have no equivalent in cultural markets.

The marketplace of ideas has very little barrier to entry. Anyone who is capable of original thought is able to formulate ideas and to market those ideas. Furthermore, the very idea of liberty is closely tied up with the ability to formulate and market such ideas subject to very, very little regulation.

The issue though is that with liberty comes responsibility. Parents can choose whether or not to let their kids listen to violent songs, or read violent works of literature (such as the Bible, the Iliad, Egil's Saga, or the Tain bo Cualgny). They can also choose how they want to interact with their children regarding such violent imagery portrayed in books or songs. Parents are the formative force in steering our culture, and hence they should bear this responsibility. I don't think the parens patriae power of the state should extend to the point of ideology.

And of course, the issues of violence bear little difference to the issues of sexuality.

These are strong reasons why it is a good thing that Bork never was confirmed by the Senate to sit on the Supreme Court.
7.11.2009 2:00pm
einhverfr (mail) (www):
Public_Defender:

Because it's so closely tied with serious sexual abuse and human trafficking. Prostitution is not just expensive Eliot Sptizer call girls. Those are the exceptions. The prostitutes I've seen in my cases are often driven to it by childhood sexual abuse (sometimes by my clients), drugs, or human trafficking.


Certainly human trafficking and sexual abuse are problems which need to be subject of serious legal penalties. I don't think anyone argues that point. The issue of drugs is a more controversial one though and I think our laws are entirely out of balance and therefore a large part of the problem.


I'd argue for making it legal to prostitute oneself, but illegal to be a John, pimp. or madam. The law should give prostitutes a way out and should hammer those who prey on others. But the line between willing participant and victim is just to hard to judge in individual cases. So punish the pimp, the madam, and the John, but offer help to the possible victim.


I think simply shifting legal burdens wouldn't get rid of this, but rather simply change the dynamics of abuse, broadly defined.

BTW, I am not entirely comfortable with the idea of simply legalizing prostitution, but I think the legal framework needs to be refined to deal with the specific problems as the current approaches to both drugs and prostitution seem to involve using a cudgel in place of a paring knife.

The fundamental question IMO is whether prostitution represents a harm to society in itself, or whether it is just, in many cases, associated with other harms. Certainly folks like Bork seem to take the former view, while your post suggests you agree with me that the latter view is more accurate. However, if the latter view is more accurate, then the act of prostitution as it is currently defined should not be illegal but might be illegal only in some cases. Maybe on-street prostitution should be made illegal. Maybe we should offer rewards for information relating to human trafficking organizations and ensure this is in as many languages as possible.

But, you seem to differentiate "expensive call girls for Eliot Spitzer" from other forms of prostitution. Why should the law not respect such a distinction?
7.11.2009 2:14pm
Doc Rampage (mail) (www):
Randy, you don't see the difference between a prostitute and a trophy wife is because your view of marriage is based on Hollywood romantic comedies. You think marriage is about true people falling madly, hoplessly in love, going through a bit of comedic false starts, recriminations, and other drama, then making up, getting married and living happily ever after or until the sequel, whichever comes first. This view of marriage is a cultural peculiarity of the very recent Hollywood-influenced West. As a major cultural influence, this view is probably no more than fifty years old.

Before that, it was expected that a young woman would rather marry a stable man of means than a poor or unreliable man, regardless of how charming and handsome the man was --and this expectation was true more often than not. Marriage was considered a rational decision. Today Hollywood has convinced everyone that marriage should be entered into with a purely emotional, irrational decision-making process (as an aside, that is a big part of the high divorce rate. Everyone knows in all other areas of life that if you make your most important decisions based on emotions and irrationality that you will come to regret them).

The crucial difference between married women and prostitutes isn't that married women do it for true love and prostitutes do it for money. It is that married women do it in the context of an institution that protects women from sexual slavery, encourages men to be responsible for their children, reduces the incidence of STDs, and has other good social effects, while prostitutes do it in a way that subverts the institution. Prostitution isn't illegal primarily because it is bad for the people involved (although it arguably is), it is illegal because it is bad for the man's wife and kids, or because it is bad for the woman that will never be able to get married because the men that might otherwise marry them can get their sex somewhere else.

Yes, yes, I know that you intend to immediately reply with sputtering moral outrage at the idea that a man would get married just to have sex. Your moral preening in this case would be just as ill-considered as in the case of women who get married for money and security, because you think the only reason to get married is True Love. But when evaluating someone's decision to get married, it is not the motivation that counts, it is the intention. Whether man or woman, if they intend to enter into the institution of marriage as a serious life-long commitment to their spouse, children and community, then their motives are their own business and none of yours.
7.11.2009 2:15pm
Public_Defender (mail):

However, if the latter view is more accurate, then the act of prostitution as it is currently defined should not be illegal but might be illegal only in some cases.

* * *

But, you seem to differentiate "expensive call girls for Eliot Spitzer" from other forms of prostitution. Why should the law not respect such a distinction?

Some cases are easier. But for the most part, it's too hard to draw enforceable lines that work in the real world, mainly because it's too easy to make it look like someone forced into prostitution wants to be there. Plus, the coercion is just too hard to measure. If someone "voluntarily" went to prostitution after a childhood filled with drug and sexual abuse, is that "voluntary"? How is a John to know whether his prostitute was coerced into it?

Given the value of prostitution (extremely limited, at best), the costs it imposes on society, and the costs it imposes on all too many women and boys, it's just not worth the harm.

I guess we could make all prostitution illegal (at least for John's, madams and pimps), and then make it an affirmative defense for the John/madam/pimp to prove that the prostitute entered into the "contract" free of all improper coercion, but that just gets silly.
7.11.2009 2:22pm
einhverfr (mail) (www):
Doc Rampage:

In some states, if a wife refuses to have sex with her husband for a certain period of time (often one year), it becomes grounds for at-fault divorce as it is seen as a form of abandonment. Such states see marriage, not as a form of sexual slavery but sexual duties to the other party are seen as a necessary part of the marriage.

So I am not entirely sure what "sexual slavery" means in this context.

I am not saying that there isn't a difference between prostitution and the trophy wife scenario. I think there is a difference, but I don't think it is categorically what you state.
7.11.2009 2:23pm
einhverfr (mail) (www):
Public_Defender:

At least in my state, laws regarding furnishing alcohol to minors differentiate between those involving religious services, those where a parent furnishes the alcohol and supervises the consumption, home brewing, and those given by a friend or stranger. Generally, in my state (WA), religious services are exempt from such laws, and parents may furnish alcohol to their children legally in any location other than either places where alcohol is prohibited generally or restaurants/bars with liquor licenses. Furthermore home brewing is almost entirely exempt from such laws. But if a friend or stranger gives a minor alcohol there are big penalties.

Certainly you could argue that many of these cases cause loopholes and allow harm to minors to come from alcohol exposure. However, my question is what makes prostitution so different. For example should there be religious exemptions? For example, if a modern Neopagan worshiper of Ishtar wants to resurrect the practice of sacred prostitution, should this be differentiated in the law? Furthermore, is there hard evidence that the divisions which have been in place in Rhode Island law are fundamentally unworkable?
7.11.2009 2:35pm
Cornellian (mail):
I'd argue for making it legal to prostitute oneself, but illegal to be a John, pimp. or madam. The law should give prostitutes a way out and should hammer those who prey on others. But the line between willing participant and victim is just to hard to judge in individual cases. So punish the pimp, the madam, and the John, but offer help to the possible victim.

That's the sort of nuanced view that ensures you have no future either as a politician or as a pundit.
7.11.2009 2:44pm
einhverfr (mail) (www):
Minor correction on my point about alcohol in Washington State:

1) If a ten year old with two non-brewer parents brews and consumes 200 gallons of beer AND 200 gallons of wine in my state, that is entirely between the ten year old and his parents.

2) If on the other hand, he brews 400 gallons of beer and consumes it, it is theoretically a matter between the ten-year-old and the BATF and/or IRS as it is a tax issue.
7.11.2009 3:36pm
Danny (mail):

Before that, it was expected that a young woman would rather marry a stable man of means than a poor or unreliable man, regardless of how charming and handsome the man was --and this expectation was true more often than not. Marriage was considered a rational decision. Today Hollywood has convinced everyone that marriage should be entered into with a purely emotional, irrational decision-making process (as an aside, that is a big part of the high divorce rate. Everyone knows in all other areas of life that if you make your most important decisions based on emotions and irrationality that you will come to regret them).


Do you really think we are that Hollywood-esque today? I would suggest that even if we don't want to admit it (because it sounds superficial and classist) people still put a huge emphasis on social class in choosing a marriage partner. Professional women do date blue-collar men, but a lawyer or doctor who marries a plumber is going to get all sorts of criticism from her family and friends, or at least get gossiped about. And back in the 19th century, people described their (practically arranged) choice of a partner with all sorts of florid poetry, love letters, etc., perhaps more than Hollywood movies.
7.11.2009 5:12pm
Cornellian (mail):
If you want to see whether Judge Bork prioritizes free markets or Biblical morality, just tell him you're planning on capping interest rates since the Bible prohibits usury, and outlawing excessive profits since the Bible says greed is a deadly sin.
7.11.2009 9:03pm
einhverfr (mail) (www):
Just a note on the trophy-wife/rich man vs prostitute bit.

The difference really is just the difference between premarital sex and marital sex. The idea of financial incentive is in common in both cases. There are social structure differences, but the trophy-wife/rich man case is to prostitution what marital sex between economically evenly matched partners is to premarital sex between those same partners.

A better question would be whether Bork would feel comfortable outlawing all premarital sex.
7.11.2009 11:56pm
Randy R. (mail):
Doc Rampage: "Whether man or woman, if they intend to enter into the institution of marriage as a serious life-long commitment to their spouse, children and community, then their motives are their own business and none of yours."

Excellent point, and one I heartily agree with. And you will also agree that if two men or two women intend to enter into the institution of marriage as a serious life-long commitment to their spouse, children and community, then their motives are also their own business and none of yours, correct?

Because, truly, it is also none of your business to deny them the right to marriage either.
7.12.2009 1:29am
Soronel Haetir (mail):
Instead of the prostitute vs trophy wife how about we try a comparison of prostitute vs kept woman. AFAIK a man can be the sole source of income for a woman, without marriage, provide living space, transportation, food clothing and whatever other items he wishes, yet this arrangement would not run afoul of prostitution law.

Looking at the two US states where prostitution is legal, Nevada and Rhode Island how do the related crime rates compare to other locales with similar demographics?
7.12.2009 2:07am
Oren:

Before that, it was expected that a young woman would rather marry a stable man of means than a poor or unreliable man, regardless of how charming and handsome the man was --and this expectation was true more often than not. Marriage was considered a rational decision.

And I am quite glad that marriage is no longer an exercise in economic rationalization and familial need.
7.12.2009 2:16am
ReaderY:
Bork takes the view that small-l liberalism has a limited domain: it works in some cases and doesn't work in others; it solves some problems but not others. He may well wrong as to the particular problems he thinks it can and cannot solve. Doubtless he is wrong in at least some particulars.

But I think a view that starts out acknowledging the limits of ones pet theory's domain of appliaction is much more mature, and much more likely to prove useful over time, than a more naive view that thinks a single pet theory always holds and is the answer to every and all problems.
7.12.2009 2:54am
einhverfr (mail) (www):
ReaderY:

The problem with the pro-censorship position though (and I read Bork to be fairly pro-censorship in cultural issues) is that it is entirely inconsistent with the development of first amendment law since WWI. (My understanding is that Freedom of Speech law wasn't very well developed prior to a number of cases which started out in WWI and culminated in the 1960's.)

The idea that government can or should provide cultural guidance by removing certain forms of depictions from the cultural scene (sex/violence, etc) fundamentally runs amok with current First Amendment jurisprudence and seeks to return us to a time when blasphemy laws, among others, were seen as constitutional. That is the difference between a conservative (which seeks to conserve) and a regressive.
7.12.2009 3:07pm
einhverfr (mail) (www):
A note to John Moore:

I think the idea of a simple case where all marriages were practical matters is not really born out by evidence. Certainly there was MORE of such a consideration and certainly parents had more influence. But consider the folklore to the contrary:

Mill o' Tifty's Annie commemorates an event from the 17th century. Note that in the song, Annie is killed by her brother for seeking to marry below her station. There are also plenty of other cases of songs like Glasgow Peggy where the marriage out of love turns out to be above the station of the woman because the man pretends to be of lower class.

Also consider some of the underlying themes in the original Grimm-collected versions of The Sleeping Beauty. I would submit that many other stories suggest possibilities of marriage out of fascination rather than out of material gain for both genders.
7.12.2009 10:21pm
Frater Plotter:
There is no contradiction between marriage for love and marriage for practical needs of support, stability, and child-raising. Rather, the emotion of sexual love exists precisely to attract and connect a person with a good partner. That's what it's there for.

We have the emotions that we have simply because our ancestors who had those emotions out-bred their neighbors who lacked them. Those proto-mammals or pre-apes which did not feel sexual love were less likely to make babies with one another -- or were less likely to form stable families to raise and support those babies.

The emotion of fear serves the purpose of causing us to flee from danger, thus saving our lives. The emotion of anger causes us to seek to punish those who harm us or our kin, thus deterring them from future incursions upon us. And the emotion of sexual love causes us to seek out and catch a partner with whom to share our lives, our risks, and our family.

Humans are the second-sexiest of apes -- second only to the bonobos, who have sex as a way of saying hello. (Liberal arts college students may represent an evolutionary step in this direction. And like the bonobo, they also show a powerful affinity for lesbian sex.) Gorillas, chimpanzees, and baboons -- even the purple-assed mandrill, who wears his sexuality on his pants -- all have much less sex than humans do.

So what about promiscuity, which provides for reproduction but not for support? Or prostitution, in which sex but not reproduction is exchanged for financial support? And what about homosexuality? It's complicated, but there are sound evolutionary reasons for some, but not all humans to exhibit these behaviors. Those interested in these questions should see the works of Matt Ridley, including The Red Queen.
7.13.2009 12:35am
Cornellian (mail):
You think marriage is about true people falling madly, hoplessly in love, going through a bit of comedic false starts, recriminations, and other drama, then making up, getting married and living happily ever after or until the sequel, whichever comes first. This view of marriage is a cultural peculiarity of the very recent Hollywood-influenced West. As a major cultural influence, this view is probably no more than fifty years old.

Before that, it was expected that a young woman would rather marry a stable man of means than a poor or unreliable man, regardless of how charming and handsome the man was --and this expectation was true more often than not. Marriage was considered a rational decision.


If you think this view is no more than fifty years old, you have clearly never read a novel by Jane Austen.
7.13.2009 1:18am
Randy R. (mail):
Nor has Doc ever heard of the romances by the troubadors during the middle ages, from around the 14th century.

However, he isn't totally off the ball. Oddly enough, whenever I argue Doc's argument in the SSM debates, I state that marriage in the past was indeed often a marriage of convenience -- certainly the more property and assets you had, the more you had ot marry the 'right' person. For the nobility, love had nothing to do with marriage. But whenever I raise that issue, I always get attacked by people who say I"m wrong, and that people have married for love since the dawn of civilization. Where was Doc then!

My point was that today, we in the west marry almost exclusively for love, and if that's the case, there certainly is no reason to exclude gays, since gays can and do fall in love.

Marriage, as Doc now concedes, have changed quite dramatically over the past few centuries, and it endures nonetheless. Changing it to include SSM is part of that process and is nothing to fear. The ones who argue that marriage hasn't changed in 2000 years are of course wrong. Perhaps next time, Doc will 'striaghten' them out about it.
7.13.2009 1:57am
Mark F. (mail):
I'm a libertarian, but I disagree that that the (illegally ratified, but that's another issue) 14th Amendment somehow binds the 1st Amendment on the states. I find the all of the "incorporation" arguments to be unconvincing.

The Constitution prohibits all Federal censorship (and not just censorship of political speech, as Bork believes), but it has nothing to say on state censorship. If Congress wants to explicitly bind the Bill of Rights to the states, it needs to pass new Constitutional Amendment explicitly stating that. (BTW, James Madison proposed this, and the idea was rejected.)
7.13.2009 8:38pm

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