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A Borkean Critique of Robert Bork's Case for Censorship:

Last summer, I was part of a Federalist Society symposium on the work of Judge Robert Bork. The presentations from the conference have now been published by the Harvard Journal of Law and Public Policy. I was on a panel considering Bork's controversial 1996 book, Slouching Towards Gomorrah: Modern Liberalism and American Decline, which argued that extensive government "censorship" (Bork's term, not mine) of sexually explicit, violent, and other harmful media is essential to curbing various social pathologies. My brief symposium essay critiquing Bork's argument is now available on SSRN. Here's the abstract:

In his controversial 1996 book Slouching Towards Gomorrah, Judge Robert H. Bork argued that we must adopt extensive censorship of violent and sexually explicit media in order to combat social pathologies such as crime, welfare dependency, and illegitimacy. In this brief essay, I argue that Judge Bork's call for censorship is in tension with his own earlier influential scholarship pointing out the dangers of government economic regulation. Cultural regulation poses many of the same risks that Bork highlighted in his critiques of economic regulation and also some unique dangers of its own. Like economic regulation, cultural regulation is prone to capture by interest groups and to overexpansion. In addition, the government will often be tempted to use cultural censorship to promote its own ideology and repress opposition speech. Both American history and modern European experience support these conjectures. Moreover, events since 1996 show that censorship is not necessary to combat the social pathologies that rightly concerned Bork and other conservatives. Over the last 15 years, there have been great reductions in social pathology without any increase in cultural censorship. In the long run, conservatives and others would do well to rely on private institutions rather than government to promote desirable cultural values.

In an earlier panel at the same symposium, Judge Frank Easterbrook summarized Judge Bork's outstanding work on antitrust regulation as showing that government should not "second-guess" markets. In my view, this point applies just as readily to government regulation of the culture.

I thank the Federalist Society for including me in this event despite (actually, because), of my strong disagreement with Judge Bork's views on the issues discussed by our panel.

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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.

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Epstein on Bork:

In the latest issue of Regulation, Richard Epstein has a scathing review (go to page 3) of Robert Bork's latest book, a collection of his writings over several decades:

what is so striking about Bork's collection of ipse dixits is that they never rest on the close and careful reading of text that the originalist method mandates. Thus, the real indictment of Bork lies not in the views that got him into such hot water in his 1987 confirmation hearings. Historically, the regulation of contraception was subject to state regulation under the police power, notwithstanding Justice William O. Douglas's artful invocation in Griswold v. Connecticut of "penumbras" of the Bill of Rights. What really makes Bork a disappointing constitutional scholar is that his moral self-indulgence has led to an utter lack of intellectual discipline.

So this review ends by pointing out this historical irony: When Bork was constrained by the institutional requirements of the judicial role, his evident intellectual and stylistic talents shone through. He was an excellent judge. Indeed, had history been kinder to him, he would have been a distinguished Supreme Court justice because his temper would have been held in check by the norms of his office. But I couldn't persuade a soul of the soundness of that counterfactual judgment if one took his extrajudicial writings as a barometer of probable judicial performance.

Sadly, it is easy to explain why a great antitrust scholar has had so little influence in constitutional law. Bork may think it is time for him to speak out on constitutional issues. But most people will just tune him out, and for good reason.

Harsh, but not unfair. I often describe Bork as "an originalist who seems to have little interest in history," but who instead uses originalist arguments to support a preconceived ideology of judicial restraint and social conservatism.

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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.

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