Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Richard Epstein reviews Robert Bork's new book in a Cato Institute publication (PDF) and nails Bork for his irrational social conservatism.
The nub of the difficulty lies in Bork's worldview,which is as weak and fearful on social issues as it is strong and confident on antitrust matters. Anyone who reads through these pages is struck by his deep sense of social alienation that has turned a former libertarian into a strident social conservative who rails incessantly against modern popular culture. Bork's near irrational leitmotif is that the absence of common values will lead our culture into a terrible moral quagmire from which it will never escape.He urgently postulates that all cultures need some common moral glue to hold themselves together. He sees the Supreme Court as a mortal threat to our traditional religious values when it champions a philosophy of excessive individualism, which is only a thin veneer for personal self-indulgence.
He also correctly identifies the contradiction at the core of most conservative judicial philosophies, between originalism and the concept of judicial restraint. On the one hand, Bork is an outspoken proponent of conservative originalism; on the other hand, he constantly preaches the need for greater deference to the elected branches of government. What to do, then, when the elected branches of government go against the clear results of an originalist inquiry? In Bork's case, the answer seems to be to accept anything that gives government more authority - but only over our private lives and moral choices, not over economic choices.
Epstein notes:
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.
In the end, he really nails Bork's incoherence:
But 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...What really makes Bork a disappointing constitutional scholar is that his moral self-indulgence has led to an utter lack of intellectual discipline.
And his is written by a guy who supported Bork's nomination in 1987.
Ilya Somin joins in at the VC and writes:
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.
I could not agree more.
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Comments
I have always found it odd that Bork champions the free market when it comes to economics, but not when it comes to social relationships. Strange.
Posted by: kehrsam | July 15, 2009 9:26 AM
kehrsam,
Agreed. But it's the consequence of a particular type of moralism. While that moralism may find the greed of the market disdainful, the moralist may believe that competition disciplines the greed to promote the social good (i.e., the Adam Smith view). But what disciplines the social exchanges of personal relationships to keep the immoral aspects in check? Instead of competing against each other, and creating discipline, immoral people collaborate with and feed off each other to create ever more immoral relationships.
Of course that type of moralism relies on very fuzzy and hard to support claims that certain types of voluntary behavior are inherently immoral. If we simply rely on the harm principle, we avoid most of the incoherencies of moralism.
Posted by: James Hanley | July 15, 2009 9:37 AM
Yes, we do indeed need a set of strong common values to hold us together as social creatures. But like so many other fear-driven moralists, Bork is completely oblivious to the fact that we ALREADY HAVE a set of common values, evident in the civil rights, women's rights, gay rights, New Deal, and other recent social movements that have made our country a better place to live. The problem for peopple like Bork is that the common values that currently hold us together are not HIS values, therefore he is simply incapable of acknowledging their existence.
And it is people like Bork who are actively destroying our society by rejecting, attacking, and undermining the common values that the rest of us uphold for our collective benefit.
Posted by: Raging Bee | July 15, 2009 9:38 AM
I've found conservatives rationalize their ideological desire for originalism and their support for judicial activism by creating a mental image of the constitution they would like to have, not the one the founders wrote. Ignorance of the text of the constitution, it's history and context, allows them to twist their understanding of original meanings so far that true judicial activism can be excused.
Beyond that, I agree with Bork (And Washington, et. al.) that a country needs a shared set of values to keep cohesion. Where I disagree is the source of these values. While the founders thought a common religion would meld the country together, and Bork similarly, if I read the subtext of your post correctly, in "conservative" values (read Christian), I believe it ought to be the constitution and the rule of law. What, exactly, the laws ARE can be changed to fit the zeitgeist, but adherence to them by all, as a basic foundational principle, as well as an understanding of personal, constitutionally guaranteed freedoms, are necessary for an ordered society. I think this is what scares me so about the modern conservative movement - they completely reject this notion.
Posted by: Phaedrus | July 15, 2009 9:40 AM
The obvious difference, of course, is that the market has been proven to work...
Posted by: WScott | July 15, 2009 9:49 AM
What's concerning about Bork's extremist views is that mainstream conservative views as practiced by the conservative SCOTUS justices and conservative lawmakers is not that far from Bork's views in terms of how they are implemented. While we were saved from Bork as a Supreme Court justice, we have suffered with a Bork-lite/like court for some time, which I believe is even further aggravated with Roberts ultimately replacing Rehnquist and certainly by Alito ultimately replacing O'Connor.
I've had a hunch since Alito's nomination hearing that he hides a chip on his shoulder towards America's legacy of liberalism that's far bigger than even Thomas' obvious one and possibly equal to Bork's. That will be an interesting though concerning aspect of Alito's tenure to study. My sense of it is that both Thomas and Alito subscribe to the thereom that revenge is a dish best served cold. Scalia on the other hand just plain enjoys being what Bork craved, i.e., Alito and Thomas were made, Scalia was born for it.
Posted by: Michael Heath | July 15, 2009 10:12 AM
Phaedrus @ # 4: ... the founders thought a common religion would meld the country together ...
They did?
Well, maybe if you define "Enlightenment values" as a religion...
Posted by: Pierce R. Butler | July 15, 2009 10:36 AM
WScott said:
But if that's the case, then you'd think they would be fiscally conservative but socially liberal, since if the "invisible hand" of God is regulating our morality then presumably the government doesn't need to.
Posted by: Gretchen | July 15, 2009 12:06 PM
Gretchen @ #8:
Well, you've got to realize, their god is utterly incompetent and astonishingly petty. It can't figure out how to keep tornadoes from sucking up good christian people. It can't figure out how to aim lightning at teh ebil gheys. It can't figure out how to stop a couple planes full of fanatics from the wrong cult from crashing into buildings. Or perhaps it just feels like watching thousands of people being murdered out of sheer spite for reasons beyond human understanding. Theirs is a god that has to be coddled, one that pouts and throws a tantrum if it fails to receive a never-ending stream of government-funded money and praise. They worship a spoiled child with superpowers it can't control.
Posted by: phantomreader42 | July 15, 2009 1:49 PM
kehrsam - are you a libertarian?
Posted by: D | July 15, 2009 5:19 PM
phantomreader42:
"Theirs is a god that has to be coddled, one that pouts and throws a tantrum if it fails to receive a never-ending stream of government-funded money and praise. They worship a spoiled child with superpowers it can't control."
They worship Franklin Richards?
Posted by: Sean Micheal | July 15, 2009 5:32 PM
D: In my forays into politics I have always worked for moderate to conservative Democrats. As an Econ major in undergrad I have a lot of libertarian ideas on that front, and as a defense lawyer I've grown much more libertarian on social issues. So I'm moving in that direction.
Posted by: kehrsam | July 15, 2009 5:58 PM
I've always found the following statement (similarly seen commonly from social conservatives) to be both puzzling and troubling:
"Bork's near irrational leitmotif is that the absence of common values will lead our culture into a terrible moral quagmire from which it will never escape.He urgently postulates that all cultures need some common moral glue to hold themselves together."
While I agree with the premise (cultures need common values) the problem with Bork's ideology (and by extension, the ideology of all such social conservatives) is that we do already in fact have such a set of shared values, contrary to their beliefs otherwise. "Life, liberty, and the pursuit of happiness" are the common values of our culture. They're so important to us that they're front and center in the Declaration of Independence and no sentence in the Constitution makes any sense EXCEPT in light of these values.
The problem with social conservatives seems to be that either A) they don't understand this or B) they don't agree with it. I used to think it was A, but I've come to believe that in reality it's more like B. People like Bork (and Dobson, Limbaugh, Coulter, Hannity, Huckabee, Bush, etc, ad nauseam) either don't actually share these values OR they have a morally crippled view of what these values actually are (sort of like Oceania's "freedom is slavery" slogan).
To them, "Life" seems to mean "life as we think it should be", not as individuals desire it.
"Liberty" means, "the freedom to do what we say you can do", not the freedom to act in your own best interests.
"Happiness" means "what we say it is", not what you or I might believe it to be.
Bork and his ilk rail against collectivism in the economic world and yet preach collectivism in the social world. To them individuals are means to some other specific social end, not ends in themselves. "Freedom is Slavery" indeed...
Posted by: Bill Snedden | July 16, 2009 9:07 AM
Bill Snedden - nice post. I've seen your sentiment expressed here numerous times. I too agree with it. I do think the more interesting question is whether they are cognizant of the fact their positions are in argument with the founding ideals you just expressed, i.e., "life, liberty, and the pursuit of happiness".
On the life, I think their anti-abortion rights, reluctance to defend the rights of those arrested, and belief in American exceptionalism coupled to simplistic "kill them all, let God sort them out" foreign policy positions are positions they believe put them on higher moral ground than libertarians, or classical and progressive liberals. Parts of these arguments can be rationalized, e.g., anti-abortion rights; most are just plain insane.
On the latter two, liberty and happiness, it's my observation they are not cognizant that their positions violates the precepts for both. Whether this is ignorance or delusion is the more interesting question vs. their rejection of such. While they are not mutually exclusive, I've moved over significantly to their being delusional, especially given their irrational acceptance for Palin.
Posted by: Michael Heath | July 16, 2009 9:23 AM