Posted by Ilya Somin:
Robert Bork and the Contradictions of Conservatism:
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247286303
Robert Bork's [1]latest book epitomizes two key internal
contradictions in conservative thought: the failure to recognize that
government regulation of culture has many of the same flaws as
economic regulation and the clash between constitutional originalism
and judicial restraint. Not all conservatives make these errors. But
both are common enough in the conservative movement to warrant
critical scrutiny.
An outstanding scholar of the pathologies of antitrust policy and
other economic regulation, Bork also advocates sweeping government
censorship of the culture, including "censorship" (his word, not mine)
of an extensive range of sexually explicit, supposedly offensive, or
violent media. Yet he barely even considers the possibility that the
limitations of government that bedevil economic regulation might also
impact government efforts at cultural regulation. For example, like
economic regulation, cultural regulation can easily be "captured" by
interest groups, including the sorts of politically correct left of
center interests that Bork and his fellow social conservatives
intensely dislike. From a social conservative perspective, is it
really a good idea to give government sweeping power over the culture
if much of the time that power will be wielded by liberals or
leftists?
I explore this contradiction in Bork's thought more fully in [2]this
symposium piece. As Judge Frank Easterbrook pointed out in the same
symposium, the central theme of Bork's influential antitrust
scholarship is that government shouldn't "second-guess markets;" that
less, of course, is equally applicable to cultural markets. The
problem is not just that Bork supports one type of regulation more
than another. It is that he largely ignores even the possibility that
the two might have common weaknesses. Unfortunately, many (though by
no means all) other conservative thinkers commit the same mistake.
Richard Epstein's [3]review effectively nails the second major
contradiction in Bork's thought: the tension between his support for
constitutional originalism and his advocacy of broad judicial
deference to the political branches of government:
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 tha twere
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.
As Epstein suggests, a consistently originalist Court would probably
constrain the political branches of government much more than the
current court that Bork denounces as anti-democratic. Many of the
wide-ranging functions of the federal government that the Court
currently upholds under the Commerce Clause could not withstand
originalist scrutiny. Epstein also points out that property and
contract rights would get more judicial protection under an
originalist approach than Bork would like - a view supported by a
growing body of historical scholarship by people like co-bloggers
David Bernstein and Randy Barnett. Liberal scholar Jennifer
Nedelsky[4] has argued that the Framers sought to provide broad
protection for property rights (a state of affairs she decries).
[5]Eugene Volokh has shown the the original meaning also would provide
extensive protection for the sort of symbolic speech (such as flag
burning) that Bork believes should be subject to wide-ranging
censorship. The list can easily be extended.
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.
Obviously, liberal and leftist political thought has contradictions
too, as does my own libertarianism (though I think it has fewer than
the available alternatives). However, the shortcomings of rival
theories don't justify those of conservatism.
References
1.
http://www.amazon.com/Time-Speak-Selected-Arguments-Institutions/dp/1933859687
2.
http://www.amazon.com/Time-Speak-Selected-Arguments-Institutions/dp/1933859687
3. http://www.cato.org/pubs/regulation/regv32n2/v32n2-8.pdf#page=3
4.
http://www.press.uchicago.edu/presssite/metadata.epl?mode=synopsis&bookkey=51280
5. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1267400
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