The Danger of Bork and His Followers

I've made no secret of my utter distaste for Robert Bork and his ideology. In previous posts (here, here and here, as well as in several essays dealing with constitutional law in general) I have made the case that Bork is, for all intents and purposes, an advocate of theocracy and authoritarianism. His voluminous writings, which call for a "law based on morality", are little more than a long argument to justify controlling other people's lives. Now comes Walter Olson of the Manhattan Institute, with a detailed look at Bork's philosophy and how it divides conservatives along the lines of authoritarians vs libertarians (Bork actually refers in the book to the "libertarian virus").

As Olson points out, Bork quite literally rejects the assertion of the Declaration of Independence that liberty and the pursuit of happiness, both of which he actually uses as pejoratives in the absolutely ridiculous book Slouching Towards Gommorah, are inalienable rights and that governments are instituted in order to protect them. This book, Bork's magnum opus, is one of the sacred texts for those on the authoritarian side of the culture wars. Olson writes that Bork is,

determined to make the argument that persuasion, change of fashion, natural maturing processes, and ridicule can never suffice to elevate the tone of one or another area of culture: The cops must instead be called in. For a "serious attempt to root out the worst in our popular culture," he wishes to argue, "directly coercive responses may be required." When he proceeds to his call for censorship, he has little patience for the drawing of conventional lines between private adult perusal (OK) and public display or availability to children (not necessarily OK). Government should be regulating adults' morals every bit as much as children's, in his view. Remarkably, he manages to view bawdiness behind closed doors as worse, not better, than in public places: "The more private viewing becomes, the more likely is it that salacious and perverted tastes will be indulged." He brushes aside as irrelevant efforts to get the taxpayers out of funding such things: Mapplethorpe's and Serrano's pictures "should not be shown in public, whoever pays for them." His premise, in fact, is the government's right to guide and shape the characters of adults, which means that in his view censorship should cover violence as well as sex, and plain old prose as well as videos, record lyrics, and the like.

Could it shock anyone that Bork is one of the principal authors of the proposed Federal Marriage Amendment in response to gay marriage? This, folks, is why we must oppose people like Bork and his many followers. This is not a little crank movement we're dealing with. Bork is a superstar of the religious right and his book sold millions of copies. He is enormously influential. The irony is that the Borks of the world are the first to call their opponents "anti-American". Yet they scoff at the notion that was so passionately argued by those who signed the Declaration of Independence that the legitimate purpose of government is to protect our inalienable rights. What could possibly be more anti-American than that? Even more ironic is that they love to talk about "smaller government" while advocating a vast increase in the government's authority to police our lives even in the most intimate details. And don't kid yourselves, what they have in mind is a thorough repudiation of the notion of liberty and freedom of thought. Olson is absolutely correct when he writes,

The upshot, if Bork had his way, would be a repression of culture that would go in some crucial respects beyond anything of which living Americans have memory, as in the case of his proposed right of censors to control private reading of violent prose. For that matter, since violence or sex are by no means the only types of content that might corrupt character, there's no particular reason why censorable categories should remain limited to those two. Why not ban portrayals that glamorize disrespect to parents? And if the source of all this is the state's right to mold adult character, why stop at prohibition of bad texts? Why not let officials prescribe mandatory reading, listening, and viewing lists so as to promote character formation? Bork feels it necessary to deny he'd actually go this far, but it's hard to see why not. And though he also disclaims any intent to censor political advocacy as such, he's disturbingly eager to chip away at areas closely related to such advocacy -- proposing, for example, much broader government power to punish speech that advocates unlawful conduct.

Jefferson must be rolling in his grave.

(Thanks to Jon Rowe for pointing me to the Olson article)