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.