Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.

A Case Not Closed

Spring 1997

Robert H. Bork
Regan Books/Harper Collins, 1996, xiv + 382 pgs.

With ample reason, Robert Bork indicts contemporary American culture. But he in part misidentifies what is responsible for our current predicament; and as a result, he grossly misunderstands classical liberalism. His rejection of classical liberalism leads him to embrace dangerous doctrine.

Our author considers a number of grave social problems, devoting a chapter to each: these include pornography, abuses of the welfare system, "killing for convenience," and the rise of nihilism in many subjects previously regarded as academic disciplines.

His discussion of abortion seems to me especially insightful. As he rightly points out, the Supreme Court in Roe v. Wade erred in taking it to be controversial whether a fetus is a human being. "The question of whether abortion is the termination of a human life is a relatively simple one.... It is impossible to draw a line anywhere after the moment of fertilization and say that before this point the creature is not human but after this point it is. It has all the attributes of a human from the beginning, and those attributes were in the forty-six chromosomes with which it began" (pp. 174 75).

Bork does not argue that this suffices to show that all abortions are morally wrong. But granted that the fetus is human, may it be killed "simply for convenience"? Surely it is wrong to do so.

Even in this excellent chapter, however, a weakness is manifest. Our author is not really at home with philosophical arguments. (He of course is highly adept at legal reasoning; but mastery of law need not bring with it skill in philosophy.) As an example, someone who denies that abortion is murder need not, as Bork thinks, doubt that the fetus is a human being. He may instead hold that not all human beings are persons, but only persons have rights. I entirely agree that this is a dangerous doctrine: in practice it would quickly lead to self-styled experts deciding who is fit to live.

But whatever the bad consequences of this view, Bork has not shown that it is false. Bork states: "The characteristics of appearance, sentience, ability to live without assistance, and being valued by others cannot be the characteristics that entitle you to sufficient moral respect to go on living" (p. 177).

But to say this does not suffice: Bork needs to confront the arguments of those who claim just what he denies. Bork might respond that he does not need at all to argue for his view: ultimate issues of morality are not amendable to argument. "[M]orals or ethics...cannot be reached by reason" (p. 275). If so, why need he argue for the truth of his contention?

Does this not push the problem back one step? Kant famously thought that morality can be derived rationally; and among philosophers he is not alone in this belief. Bork thinks it mistaken: but, once more, this must be shown and not merely stated.

I do not mean to rule out of court the view that morality consists of certain ultimate judgments that cannot be further justified. Quite the contrary, this theory strikes me as very much a live option. But this is just the point. Intuitionism is a moral theory, one among several other contenders, that must be defended by argument.

Bork's failure to set forward his arguments rigorously leads to a crucial error in his approach to constitutional interpretation. He rightly castigates the Supreme Court for imposing leftist dogmas. Judges should not enact their own preferences into law but should be bound by original intent.

Excellent. But what does our author mean by original intent? He confuses two distinct questions: what did the framers of a law intend by what they enacted? and what was the end or purpose they sought by their enactment? No doubt the answer to each question may prove crucial to help us answer the other; but an example readily shows that the two questions are not the same.

In Bork's view, the framers of the First Amendment wished to protect political speech. "In a republic, where the polls are open and elected representatives make the law, there can be no value in speech advocating the closing of the polls or nullifying the effects of laws democratically made" (p. 102). Suppose that Bork is right: the framers valued political speech of a certain type and for this reason promulgated the First Amendment.

Does it follow that the First Amendment protects only political speech of the relevant kind? No, it does not. The framers, we assume, did not value certain types of speech; but this does not entail that they excluded the speech they did not value from protection. One way to protect political speech is to protect all speech. To show that certain forms of expression do not fall within the Amendment's scope, Bork needs to show that the framers did not adopt this strategy. And to show this, once more it is not sufficient to show that their motive was to protect political speech.

Exactly the same fallacy vitiates Bork's discussion of the Second Amendment. Although an opponent of gun control, Bork refuses to regard the issue as a constitutional one. "The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical national government. Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose" (p. 166n).

As before, let us suppose Bork is entirely right about why the framers enacted this amendment. It does not follow that if the aim they sought can no longer be achieved by allowing individuals to keep and bear arms, then individuals no longer have those rights. In a way that should by now be obvious, Bork confuses our two questions.

But let us return from the constitution to contemporary moral issues. What is responsible, in Bork's view, for much of our current plight is modern liberalism. And modern liberalism has developed from classical liberalism. "Liberalism always had the tendency to become modern liberalism" (p. 8).

But why does Bork think this? In his view, two doctrines underlie liberalism: individualism and egalitarianism. These doctrines need not lead to disaster; if a society limits their application by discipline and restraint, matters will go reasonably well.

"Men were kept from rootless hedonism, which is the end stage of unconfined individualism, by religion, morality, and law To them I would add the necessity for hard work, usually physical work, and the fear of want" (p. 8). Absent these restraints, classical liberalism degenerates into radical individualism and egalitarianism, the defining characteristics of modern liberalism.

Bork once more combines insight and error in an odd mixture. His assault on modern liberalism is on target; but his presentation of classical liberalism is a caricature. The individualism of the classical liberals does not stem from the pursuit of self-gratification, but from a view of the requirements of natural law. And egalitarianism seems to me not a principle of the classical doctrine at all.

Our author's misleading view of classical liberalism in part stems from his taking John Stuart Mill, rather than Locke, as the key philosopher of the movement. What little he does say about Locke is mistaken. He did not hold an optimistic view of man, nor did he believe that man is "inherently self-sufficing" and autonomous, Robert Nisbet to the contrary notwithstanding. In my view, he is most plausibly read as a somewhat heterodox Calvinist.

This, admittedly, is controversial; but Bork's principal point fails even if I am wrong about Locke. Bork himself acknowledges that modern liberalism "has now turned classical liberalism upside down with respect to both liberty and equality" (p. 329). If so, why take the two divergent doctrines as parts of a continuous movement?

And Bork's conflation of classical and modern liberalism is no mere mistake of theory. Since he rejects individual rights, as the classical view professes them, nothing stands in the way of a virulent statism. Thus, censorship is the order of the day. Those who protested spending public funds on Robert Mapplethorpe's obscenities have missed the real issue, according to our author. "To complain about the source of the dollars involved is to cheapen a moral position" (p. 150).

What could be more ridiculous than people thinking they are entitled to their own money? "[A]s if taxpayers should never be required to subsidize things they don't like. If that were the case, government would have to close down altogether. Both spending and taxation would be at zero" (p. 150). The omnicompetent state is, for Bork, not a monster to be dispatched but a tool to be used. Whether the state is likely to enforce the values he favors is a question he leaves unexamined.

Our author's statism extends beyond culture. He gives as an example of a "demonstrably irrational" proposal "reviving the Tenth Amendment to confine the federal government to the enumerated powers" (p. 270). Why, this would mean "the end of Social Security and Medicare" (p. 276). How dreadful!


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