Robert H. Bork (1927–2012)

This is, in many ways, a highly engrossing and intelligent look at constitutional law and a particular approach to it. If you are inclined towards Bork's point of view, I imagine you will find it to be a wonderful study. I do not, but still I found many parts of the book to be engaging and clearly explained. I have two main issues with it.

One, Bork's weak attempt to reconcile his originalist approach and Brown v Board of Education. You can just feel on the page that he knows his views and show more the decision don't go together, but he (from either personal conviction or political necessity) still tries to scramble together a way to make them seem harmonious. It's such a gaping hole in the book that is always there, no matter what he is writing about.

Second, his inability to admit his personal biases and how they could ever influence his decisions. The best example is the long passage where he attacks the idea of a right to privacy that protects gay sex. I am not going to debate his legal view on that, but I will point out that he -- consciously or not -- slips moralistic, extra-judicial comments into, what he professes to be, a neutral application of legal reasoning. For example, he attacks the view that gay sex is a "victimless crime" that causes harm to no one. He writes that "we" know that is not the case. Who is we? By what proof do we know? Bork doesn't answer. He just leaves the clearly homophobic (what else can you call it?) line dangling there. With all his pretensions of sage, neutral legal analysis, that he says is never influenced by his own personal moral compass, he was clearly blind in situations like this. His obvious moral disapproval of same sex relations was so natural to him, that he couldn't see he was letting it seep into his supposed neutral, textual analysis. This is a damning sin when the entire book rails against what he sees as liberal judges letting their morality influence their reasoning. show less

I hate stars. I gave this book three even though I disagree vehemently with Bork, but it's kind of fun. His jeremiad, Slouching Toward Gomorrah uses Gomorrah as a metaphor for the United States. The book reminds me of the cantankerous old relative at the dinner table who can’t stop talking about how terrible things are today. One can’t even find time to pass the peas. Bork’s thesis is simple: our culture is immoral, and it’s all the liberal’s fault.

Society’s degradation has been show more caused by radical egalitarianism, radical feminism, popular culture, the Su­preme Court, and rock n’ roll music (which he admits never having listened to). Portable radios share much blame for they permitted youth to listen to music without parental supervision. The Internet (which he admits to never having looked at) is a quagmire of dirty pictures, political correctness, and Afro centrists. He leaves virtually no one unscathed, attacking both the Roman Catholic Church and Protestant denominations that are living in a “leftist dream world,” and have become feminized.

Bork’s solution to this state of affairs is censorship, democratization of the Supreme Court, and religion - where this religion is to be found among today’s debased denominations her does not say

The problem with this book is that it’s all assault and no finesse. Never does he engage the reader in a discussion of both sides of an issue. He creates a straw man and then knocks it over. He falls into the trap he accuses liberals of falling into; “assaulting one’s opponents as not merely wrong but morally evil.” He confuses cause with symp­toms. Never does he reveal evidence as to how the Beatles cause immoral behavior. He states simply, “Rock and rap are utterly impoverished by comparison with swing or jazz or any pre-World War II music personally, I always thought swing was the epitome of decadence] impoverished emotionally, aesthetically, and intellectually.”

Bork cannot resist name-calling. Liberals are fascist, totalitarian, and Nazi-like. Multiculturalism “is barbarism,” “feminist ideology is a fantasy of persecution.” He castigates those “cafeteria Catholics” who subscribe only to those elements of Catholicism with which they agree and then he proceeds to rebuke the Catholic Church’s call for a “just wage”, calling it “misunderstood economics.” Not an American institution escapes Bork’s wrath: the universities, colleges, government, the arts, the churches and the press have all been indoctrinated by liberals (that must be why we've elected so many Republicans in the last 25 years.)

For a self-defined conservative, Bork has some radical ideas. He would overturn the Constitution and Supreme Court decisions to be overridden by a majority vote of the Congress. He does not explain how, for example, if popular culture and society are so debased, a legislature elected by those debased people will fix Supreme Court decisions. It seems to me the whole purpose of the Supreme Court being immune to public pressure (as Franklin Roosevelt discovered to his dismay) is to provide a conservative brake on society, to constrain the short-lived stimulus of fleeting majorities. He is against an activist court. Not just liberal activism, but conservative as well, suggesting at one point that it all began with the conservative court that wrote into the constitution all sorts of free market principles that are not there. The liberals then just continued this process of activism but from a cultural perspective.

Bork is the perfect example of the circular nature of ideology, moving from far left to far right where they merge to become equally authoritarian. And what do you bet, he visited adult bookstores. show less

Of all the manifold aspects of cultural decay, one of the most difficult to recognize is the corruption of constitutional law. When one thinks of the Supreme Court, or even of the judiciary overall, the image that comes to mind is a procession of old, graying men in black robes, blowing their noses into crusty handkerchiefs as they read dusty legal tomes. They sit on their lofty benches, refusing to budge from ancient precedent and the letter of the law. Humorless curmudgeons, they are show more capable of mercy only if the accused implores them, crying his eyes out in the process.

Of course, nothing could be further from the truth. The persistence of this myth is one of the reasons why so much of the population is unaware that the Supreme Court has systematically raped the Anglo-American legal tradition as expressed in the Constitution. The Court, along with its enablers in the government, the media, and the law schools, has helped pave the way for the politically-correct, socialist nightmare that is now staring us in the face.

If anyone understands this phenomenon down to its minutest details, it is Robert Bork, one of the world's most eminent and erudite legal scholars. In 2005, Bork assembled half a dozen articles on the subject from various authors (including himself) and published them in "A Country I Do Not Recognize: The Legal Assault on American Values." The title of the book is taken from a dissenting opinion written by Justice Antonin Scalia in 1996:

"What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?...Day by day, case by case, [the Court:] is busy designing a Constitution for a country I do not recognize."

The crux of the matter, from a strictly legal point of view, is the invention by the Court of rights that do not exist in the Constitution. Emblematic is the "right to privacy," which has been used to disqualify virtually any governmental limits on individual behavior. A watershed was the 1965 case Griswold v. Connecticut, involving that state's limitations on public birth-control clinics. The statute in question offended the justices' progressive spirit, but they were faced with the annoying fact that it was the product of the democratic process. After all, the law was enacted by the people of Connecticut, in the body of their state legislature.

The Court invalidated the state law by inventing a "right to privacy." As the legal scholar Lino Graglia writes in his article:

"The inconvenient fact that there was no relevant constitutional right [Justice William] Douglas overcame by imagining and enacting a new one, the right of 'privacy'. Although this right could not be found in the Bill of Rights itself, it could be found, Douglas explained, in the 'penumbras, formed by emanations' from Bill of Rights provisions."

How the Bill of Rights has emanations, and how these emanations form penumbras, is beyond me. Then again, I never attended an Ivy League law school.

The Court moaned that the Connecticut law violated "a right of privacy older than the Bill of Rights--older than our political parties, older than our school systems." This from a Court that has consistently mocked legal and moral principles precisely because they were said to be old and outdated. The irony is excruciating.

Graglia draws the following conclusion:

"Griswold...exemplifies Supreme Court decision making on matters of fundamental social importance on no basis other than the justices' arrogant confidence in the rightness of their policy preferences and willingness to impose them on their fellow citizens. Because this constitutes an obvious abuse of office, convention requires that they make a pro forma attempt to show that the decision follows from the Constitution. This impossible task requires the permissibility of standards of reasoning in Supreme Court opinions that would not be acceptable in a discipline that aspired to the level of intellectual respectability of astrology."

Today, we take for granted the Court's interference in state law. We have been conditioned to forget one of the founding principles of the republic: that interference by Washington in the affairs of the states should be limited to extreme cases and strictly defined realms, such as national defense. It is no accident that the Tenth Amendment to the Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The revolutionary ruling in Griswold was followed by many others, such as Roe v. Wade, that amounted to the Supreme Court installing itself as America's super-legislature, invalidating laws at will, based on nothing more than its own moral and political predilections. As Graglia puts it:

"Over the past half-century the justices have chosen to make themselves the final lawmakers on most basic issues of domestic social policy in American society. These include issues literally of life and death, as in the Court's decisions on contraception, abortion, capital punishment, and assisted suicide; issues of public order, as in its decisions on criminal procedure, public demonstrations, and vagrancy control; and issues of public morality, as in its decisions on pornography and homosexuality...In essence, the Court now performs in the American system of government a role similar to that performed by the Grand Council of Ayatollahs in the Iranian system: voting takes place and representatives of the people are elected as lawmakers, but the decisions they reach on basic issues of social policy are permitted to prevail only so long as they are not disallowed by the system's highest authority."

The peak of this ayatollah-ism may have been the Court's rulings in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) and Lawrence v. Texas (2003). In Planned Parenthood, the Court formulated its infamous "mystery passage":

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

In his article, Gary McDowell of the University of Richmond has this to say on the subject:

"The Court insisted that lying at the heart of the idea of liberty provided in the Constitution 'is the right to define one's own concept of existence, of the universe, and of the mystery of human life.' ... The essence of self-government is the right of the people to engage in public deliberation over what is right and what is wrong and to decide how those rights and wrongs are translated into what is deemed legal and illegal. In the end, the elevation of a judicially created notion of privacy that can be used to trump nearly every conceivable collective moral judgment made by the people undermines constitutionalism in any meaningful sense."

The icing on the cake was the decision in Lawrence v. Texas, in which the Court struck down state laws against homosexual sodomy. In its reasoning, the Court effectively gave carte blanche to any subjective notion of "freedom," without requiring a basis in law. As McDowell explains:

"Justice Anthony Kennedy insisted that the idea of liberty in the Constitution's due process clauses is not limited to protecting individuals from 'unwarranted governmental intrusions into a dwelling or other private places' but has 'transcendent dimensions' of a more moral sort. Properly understood, this notion of liberty 'presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct,' whether those are mentioned in the Constitution or not...The essence of the Constitution for Justice Kennedy and his ilk is that it falls to 'persons in every generation [to] invoke its principles in their own search for greater freedom.' Put more simply, there is nothing permanent in the Constitution, no fundamental, unalterable principles; its meaning comes only from the changing moral views of successive generations of justices."

I highly recommend this readable and relatively short book, which gives a basic primer on one of the most crucial challenges facing Western civilization today. I have only touched on a sliver of the topics covered. There are fascinating discussions of affirmative action, the escalating abuse of the Fourteenth Amendment, the Court's attack on freedom of religion, the encroachment of international law and NGOs on American sovereignty, and the overlap of Supreme Court doctrine with Leftist political dogma.

I leave the final word to Robert Bork:

"The cases discussed in this book demonstrate that a majority of the Court is willing to make decisions for which it can offer no intelligible argument. There is, therefore, a sharp decline in intellectual honesty and integrity in the law. Perhaps worse, generations of law students are taught by their professors and by the casebooks they study that constitutional law is not an intellectual discipline but a series of political impulses...Some academics, surveying the wreckage made of constitutional law, approvingly call it postmodern jurisprudence. Postmodernism has been defined as an uneasy alliance between nihilism and left-wing politics...Those who deny moral truth frequently simultaneously take uncompromising positions on their own versions of such truth, and those positions are invariably to the left of the American center." show less

This hefty tome (715 pages) brings together essays and legal opinions written by Bork over a period of 45 years. It will undoubtedly help to seal Bork's standing as one of our era's foremost commentators on law and culture--particularly the struggle to preserve Western culture against its postmodern detractors.

Bork identifies one of the foundations of the postmodern attack as the uneasy alliance of individualism and egalitarianism. As he writes in his essay "Hard Truths About the Culture show more War" (1995):

"Individualism and egalitarianism may seem an odd pair, since liberty in any degree produces inequality, while equality of outcomes requires coercion that destroys liberty. If they are to operate simultaneously ... [they] must operate in different areas of life, and that is precisely what we see in today's culture. Radical egalitarianism advances, on the one hand, in areas of life and society where superior achievement is possible and would be rewarded but for coerced equality: quotas, affirmative action, income redistribution through progressive taxation for some, entitlement programs for others, and the tyranny of political correctness spreading through universities, primary and secondary schools, government, and even the private sector.

Radical individualism, on the other hand, is demanded when there is no danger that achievement will produce inequality and people wish to be unhindered in the pursuit of pleasure. This finds expression particularly in the areas of sexuality and violence, and their vicarious enjoyment in popular entertainment."

The union of radical individualism and radical egalitarianism have succeeded handsomely, says Bork, in eroding the foundations of our society. Authority is absent where it should be present, and vice-versa. This produces "cultural and moral relativism, whose end products include multiculturalism, sexual license, obscenity in the popular arts, an unwillingness to punish crime adequately and, sometimes, even to convict the obviously guilty."

And thus we arrive at the paradox that is all too familiar in the contemporary Western world: Those who complain about "oppressive" "right-wing" "fascism" (i.e., ordinary law enforcement) are those most in love with the power of the state. This is because the radical egalitarian project, so at odds with a free society, depends for its success on the deployment of the full coercive force of the state. Bork summarizes beautifully this road to totalitarianism:

"Modern liberalism presses our politics to the left because egalitarianism is hostile to the authorities and hierarchies--moral, religious, social, economic, and intellectual--that are characteristic of a bourgeois or traditional culture and a capitalist economy. Yet modern liberalism is not hostile to hierarchies as such. Egalitarianism requires hierarchy because equality of condition cannot be achieved or approximated without coercion. The coercers will be bureaucrats and politicians who will, and already do, form a new elite class. Political and governmental authority replace the authorities of family, church, profession, and business. The project is to sap the strength of these latter institutions so that individuals stand bare before the state, which, liberals assume with considerable justification, they will administer. We will be coerced into virtue, as modern liberals define virtue: a ruthlessly egalitarian society."

Bork then probes the nature and roots of these authoritarian administrators who would refashion society according to their notions of virtue. He notes that Joseph Schumpeter "first articulated the idea that capitalism requires and hence produces a large intellectual class." The members of this New Class are not geniuses or scholars, they are simply those who transmit ideas: run-of-the-mill journalists, academics, teachers, lawyers, and bureaucrats. They became jealous because society traditionally bestowed its rewards and prestige on the doers, those who built the world: inventers, entrepreneurs, military heroes, and the like.

Matters are made worse because the New Class are petty intellectuals in search of something to think about. Bork cites Max Weber in this regard:

"Max Weber noted the predicament of intellectuals in a world from which 'ultimate and sublime values' have been withdrawn: 'The salvation sought by an intellectual is always based on inner need...The intellectual seeks in various ways, the casuistry of which extends to infinity, to endow his life with a pervasive meaning.' ... Richard Grenier observes that among those intellectuals 'most subject to longings for meaning, Max Weber listed, prophetically: university professors, clergymen, government officials... coupon clippers ... journalists, school teachers, wandering poets'."

Bork illuminates an even deeper level of the crisis:

"The root of egalitarianism lies in envy and insecurity, which are in turn products of self-pity, arguably the most pervasive and powerful emotion known to mankind. The root of individualism lies in self-interest, not always expressed as a desire for money but also for power, celebrity, pleasures, and titillations of all varieties. Western civilization, of course, has been uniquely individualistic. Envy and self-interest often have socially beneficial results, but when fully unleashed, freed of constraints, their consequences are rot, decadence, and statism."

What I have summarized here is just the tip of the iceberg when it comes to Robert Bork's analysis of law, culture, and the central dilemmas of our time. His writing is witty and insightful; deep but never divorced from reality. There could not be a better antidote to the raging winds of nihilism that batter us from all sides. show less