Saturday, August 27, 2005

Judge Robert Bork's political philosophy

I’m always pleased to stumble upon a fellow traveler that presents information that piques my interest. The latest one is Kenneth, the self-styled Oldsmoblogger…slow and in the way. He seems to be a liberty-lovin’ individualist that is serious about the freedoms that our forefathers procured with their blood, treasure and sacred honor. Here’s a bit of what he wrote recently:
In fact, the blessings of liberty will never be fully restored and secured for good and all, because there will always be creeping collectivists horrified at the thought of a free people who need call no man their master.

In the post from which the preceding quote comes, Kenneth links to a Paul Mulshine piece that is well worth reading. It is an op-ed that has a decidedly libertarian slant, which suits me just fine.
Randy Barnett, a law professor who is one of the top dogs in the dogfight known as the Federalist Society. Not too long ago, Barnett was in the news because of the far-right position he took in arguing that medicinal marijuana case before the U.S. Supreme Court [Raich vs. Ashcroft].

His far-right position? Barnett argued that the potheads should have their pot. It's none of the federal government's business if California wants to permit medicinal marijuana, he said.

I included that quote mainly because: I’m in agreement with Barnett’s position here, I thought it was worthy of a mention and I wanted to place Randy Barnett’s view into the context of this post…stay with me.

Since 1987, as Eric pointed out: Judicial appointments routinely have been “Borked.” As I was only a punk kid of fourteen at that time, my knowledge of Judge Bork’s rejected nomination is more historical than first-hand. Nevertheless, Randy Barnett had a few revelatory things to say about Bork. The following comes from the Mulshine article (emphasis added):
With the recent publication of [Barnett’s] book Restoring the Lost Constitution: The Presumption of Liberty, Barnett has become a hero to the libertarians within the Federalist Society, a faction that seems to be in the ascendancy. On the decline is the social-conservative faction, whose hero is Robert Bork, the failed 1987 Supreme Court nominee.

"I was opposed to Bork's nomination at the time," said Barnett. "Everything I've heard from him since confirms my judgment that he would have been a bad choice on the basis of judicial philosophy."

The Bork-Barnett divide centers on the interpretation of the Ninth Amendment, the one that says that the enumeration of certain rights in the Constitution "shall not be construed to deny or disparage others retained by the people." Bork says this means nothing. Barnett says it means everything.

In his books, Bork has advanced a view of the Constitution that could be stretched to accommodate rule by the Taliban. For example:

"No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral."

By that logic, Congress could ban bacon and require burqas unless there is something in the Bill of Rights that protects pork-eating and individual fashion choice -- which there isn't.

This is quite interesting. I was under the impression that to use ‘Bork’ as a verb was rather pejorative and a tactic of the Left to discredit a ‘well qualified’ conservative judge. So I endeavored to ‘hear from Bork’—as it were—in order to ascertain a more realistic view of the would-be Justice’s political philosophy. What I found was alarming…to say the very least, which is a critique of libertarianism by the Honorable Robert Bork. All subsequent quotations will be from said critique.
Libertarians join forces with modern liberals in opposing censorship, though libertarians are far from being modern liberals in other respects. For one thing, libertarians do no like the coercion that necessarily accompanies radical egalitarianism. But because both libertarians and modern liberals are oblivious to social reality, both demand radical personal autonomy in expression. That is one reason libertarians are not to be confused, as they often are, with conservatives. They are quasi- or semiconservatives. Nor are they to be confused with classical liberals, who considered restraints on individual autonomy to be essential.

WOW!...where to begin. Firstly, I reject the premise that ‘libertarians’ are ”oblivious to social reality”; this presupposes that ‘social reality’ necessarily conforms to Bork’s—seemingly narrow—view of society. For what is society, if not the innumerable interactions of autonomous individuals with disparate subjective tastes, that live in a particular area and have certain customs and laws in common? My view of society seems to be broader and considerably more ‘tolerant’ than Bork’s. But oddly enough, Bork’s idea of ”radical personal autonomy” is overly broad, which will become apparent later in this post.

Additionally, to say that ‘libertarians’ are ”not to be confused with classical liberals” is absurd, as classic liberalism is virtually synonymous with ‘libertarianism’, in my view.
Free market economists are particularly vulnerable to the libertarian virus. They know that free economic exchanges usually benefit both parties to them. But they mistake that general rule for a universal rule. Benefits do not invariably result from free market exchanges. When it comes to pornography or addictive drugs, libertarians all too often confuse the idea that markets should be free with the idea that everything should be available on the market. The first of those ideas rests on the efficacy of the free market in satisfying wants. The second ignores the question of which wants it is moral to satisfy. That is a question of an entirely different nature. I have heard economists say that, as economists, they do no deal with questions of morality. Quite right. But nobody is just an economist. Economists are also fathers and mothers, husbands or wives, voters citizens, members of communities. In these latter roles, they cannot avoid questions of morality.

The initial quasi-ad hominem dig: ”libertarian virus” is sadly unremarkable, in light of the fact that such has become commonplace in political discourse. But more interestingly, Bork suggests that ”pornography or addictive drugs” are inherently bad and ought to be prohibited by the State. Would Bork argue that firearms are evil because they can be used to commit unjustifiable acts of violence or even death? Obviously not, as Bork is a ‘conservative’.

I’m a theist, but that in no way gives me—or anyone else—the authority to dictate to others how and when they derive consensual pleasure, if indeed no individual rights are violated in the process. This is important because I would not accept lightly any prohibitions from an atheist or agnostic that would seek to impose similar authoritarian proscriptions on my beliefs or behavior. Consistency and tolerance are crucial, especially in the context of pluralistic society.
Modern liberals employ the rhetoric of 'rights' incessantly, not only to delegitimate the idea of restraints on individuals by communities but to prevent discussion of the topic. Once something is announced, usually flatly or stridently, to be a right --whether pornography or abortion or what have you-- discussion becomes difficult to impossible. Rights inhere in the person, are claimed to be absolute, and cannot be deminished or taken away by reason; in fact, reason that suggests the non-existence of an asserted right is viewed as a moral evil by the claimant. If there is to be anything that can be called a community, rather than an agglomeration of hedonists, the case for previously unrecognized individual freedoms (as well as some that have been previously recognized) must be thought through and argued, and "rights" cannot win every time. Why there is a right for adults to enjoy pornography remains unexplained and unexplainable.

This astonishes me. How could Mr. Bork—a former potential High Court Justice—confuse rights with privileges in such a cavalier fashion. Now, he does correctly imply that simply announcing that X is a ‘right’ does not a right make. However, those activities that are indeed privileged are revocable and typically concern acts of participation with others in society, rather than individual, consensual acts. For example, privileges include, but not limited to: the use of public roads, the voting franchise, access to healthcare, etc. Conversely, drug use, pornography, abortion and the like are areas of individual concern and not the concern of society at large. Notwithstanding the fact that those things are seen—by some—as ‘morally repugnant’, such are ‘victimless crimes’. I would point out that an aborted fetus is only a victim if, in fact, it enjoys the status of ‘personhood’. Since that question is debatable and as yet unresolved to my satisfaction, I would err on the side of individual liberty for the mother.
Can there be any doubt that as pornography and depictions of violence become increasingly popular and increasingly accessible, attitudes about marriage, fidelity, divorce, obligations to children, the use of force, and permissible public behavior and language will change? Or that with the changes in attitudes will come changes in conduct, both public and private?

Now we’re getting a glimpse into Bork’s true mind-set. While he seems to be hung-up on pornography, any calls for ‘gun control’ are conspicuously absent (for the record: I support the 2nd Amendment fully). My point is that actual harm and potential harm are distinct. Surely Judge Bork must know this, but suggesting that pornography is harmful in and of itself is as ridiculous as attributing malice or intent to a gun, or any other ‘weapon’ for that matter. Furthermore, the so-called slippery slope argument is fine for the purposes of persuasion, but the tenor of the Religious Right—and apparently Robert Bork as well—more than hints that coercion is the best remedy for various ‘unsavory’ behaviors…”both public and private.”
The obstacles to censorship of pornographic and viloence-filled materials are, of course, enormous. Radical individualism in such matters is now pervasive even among sedate, upper middle-class people. At a dinner I sat next to a retired Army general who is now a senior corporate executive. The subject of Robert Mapplethorpe's photographs came up. This most conventional of dinner companions said casually that people ought to be allowed to see whatever they wanted to see. It would seem to follow that others ought to be allowed to do whatever some want to see.... Any serious attempt to root out the worst in our popular culture may be doomed unless the judiciary comes to understand that the First Amendment was adopted for good reasons, and those reasons did not include the furtherance of radical personal autonomy.

This guy was almost promoted to a life-time seat on the bench of the SCOTUS!!! Notice how conformity predominates his ideology: ”Radical individualism in such matters is now pervasive even among sedate, upper middle-class people.” Apparently, individuality gives way to social status. Nonsesnse!

Bork shows his true colors: ”the First Amendment was adopted for good reasons, and those reasons did not include the furtherance of radical personal autonomy.” I couldn’t disagree more. Personal autonomy is one of the hallmarks of this nation’s founding. For individual liberty (autonomy) is non-negotiable, provided that another’s rights are not impinged upon. But the issues that Bork has addressed are irrelevant, in terms of measurable, intentional harm done to others. This is, quite simply, advocacy for a society/state that ought to save one from oneself. Thank you, no...I much prefer the freedom to direct my own affairs.

Lastly, one should bear in mind that the preceding Bork quotations only represent a small minority of his writings, which obviously span decades. Nevertheless, I can’t possibly imagine what Robert Bork might say—or has said—that could in any way mitigate the anti-individualist views that I’ve addressed in this post. Therefore, with some reservation, I’m forced to conclude that the Democrat Senators, back in 1987, got it right for once. So, I say Bork ‘em all…let God sort ‘em out!