Thanks to Jon Rowe for the heads up on the latest screed by Robert Bork. Rowe rightly points out how thankful we should all be that when Bork's nomination was voted down in the Senate, we ended up with Anthony Kennedy on the court instead. In stark contrast to Bork's authoritarian agenda, Kennedy has moved increasingly toward an expansive, libertarian-leaning perspective. Indeed, as Randy Barnett has written in his review of Kennedy's decision in Lawrence v Texas, Kennedy's decision may well portend the end of the "presumption of constitutionality" notion in Supreme Court jurisprudence. He points out that the Kennedy-authored decision did not, contrary to how it was reported in the press, rely on a right to privacy, but on a more general right to liberty. This is coming very close to Barnett's "presumption of liberty" interpretation, an idea I favor quite strongly.
Needless to say, Bork is opposed both to the notion of the right to privacy (he famously criticized the Griswold case that first asserted a right to privacy) and the notion of a presumption of liberty. In Bork's world, if a right is not specifically enumerated in the Constitution, then governments may ban it, regulate it, or limit it as they see fit. Never mind that this perspective requires him to read the ninth amendment out of the Constitution entirely. So here is Bork's latest diatribe and, true to form, he is still completely tone-deaf on the subject of liberty. Speaking of a potential future ruling in favor of gay marriage, he says:
Such a decision would ratify, in the most profound way, the anarchical spirit of extreme personal and group autonomy that is the driving force behind much of our cultural degradation. Call it what you will--moral chaos, relativism, postmodernism-- extreme notions of autonomy already suffuse our culture, quite aside from any assistance from the courts. But judicial endorsement, which is taken by much of the public to state a moral as well as a legal truth, makes the anything-goes mentality even harder to resist. The principle undergirding radical autonomy is essentially unconfineable.
Let me translate that into common, everyday English: "If I and my peers can't pass laws to stop people from doing things they don't like, even if we can't make a rational case for why they should not be allowed to do so beyond the fact that we don't like it, all hell will break loose." To Bork, the simple Jeffersonian idea that a law is only legitimate insofar as it protects one person from another, not from their own choices and not from merely being offended at the private practices of others, is an "extreme notion of autonomy" that brings about "moral chaos". This is no surprise, of course, since Bork is an outspoken critic of the ideas found in the Declaration of Independence and of Jefferson in general. In his book Slouching Towards Gomorrah, he stridenly opposes the ideas found in that document, as Walter Olson notes:
One chapter title inveighs against "The Rage for Liberty and the Pursuit of Happiness"; throughout the book "liberty" and "pursuit of happiness" turn up as pejoratives. Bork traces "our modern, virtually unqualified enthusiasm for liberty" in part to the Declaration of Independence, a document whose influence he generally deplores. He assails as "both impossible and empty" John Stuart Mill's principle that law should interfere with the individual's liberty only for the sake of protecting other persons. Instead he calls for "law based on morality": "society may properly set limits on what may be shown, said and sung."
Contrary to Bork's absurd authoritarianism, Mill and Jefferson are not the radicals here. The radical notion is the notion that Bork and others have the legitimate authority to throw people in jail for doing nothing more than pursuing happiness in their own private life without harming anyone else in the process. That is the radical notion, as it seeks to tear down the entire philosophical basis of the Constitution, which is the notion of natural and inalienable rights, that governments are instituted in order to protect those rights, and that when they fail to do so they have violated their purpose and the consent of the governed may justifiably be withdrawn. It was on the basis of these ideas that we broke away from England. Bork would simply do away with them in the name of morality - his morality, naturally. Bork is an apologist for authoritarianism and his entire judicial theory is little more than a philosophical edifice upon which further and further intrusion into our private lives is built.
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I've maintained that the SCOTUS picks in the next few years outweigh any other considerations. If Bush gets to pick 2-3 justices, the country will look very different. There was a good NYT article today commenting on this. I recommend it.
Speaking of right to privacy and Bork, did you notice that Limbaugh was against it, because it's the SCOTUS's foundation for the right to abortion, until his medical records were confiscated?
I agree with the view, best articulated by Judge Robert Bork, that there is no basis in the Constitution for the privacy right which was announced as the foundational basis for the constitutional right to abortion.
-Rush Limbaugh, The Way Things Ought To Be, p. 56 7/2/92
There was no doctor shopping but it was my contention all along that I shouldn't have to give up my right to privacy to prove my innocence. That's not the way it works in this country.
-Rush Limbaugh, on his radio show, 10/6/04
Bork's career clearly peaked years ago when he was on the DC Circuit. He's been moving steadily downhill ever since the confirmation hearings. Today, it seems that all he does is regurgitate, in legal garb, increasingly far right-wing and even fundamentalist talking points. I'm tempted to say that he's thus marginalized himself to the point of irrelevance. But given the strong resurgence of those who would have us be ruled by theocrats and neofascists, I really can't make that claim. Sadly, Bush has done his best to pack the judiciary with Bork clones; there will be no shortage of successors to the Borkean throne once Bork steps aside.
On the subject of Limbaugh, if you think his hypocrisy on the subject of privacy is striking, you should see his comments on the topic of jail time for drug offenders. Responding to the claim that drug laws result in disproportionate numbers of minorities being sent to jail (I think that was the issue), what was Limbaugh's response? Reform the drug laws? No. Throw more white people in jail for drug offenses. Does anyone recall Limbaugh appearing before the court and asking to be sent to jail, should he be found guilty? Funny...I don't remember seeing that, either.
But perhaps the greatest moment in the entire Limbaugh saga came when the ACLU sided with him in his privacy claim. Can't you just see old Rush nearly choking on a buffalo wing when the first staffer came in and said "Hey, Rush, great news! The ACLU has announced it's supporting you!" As they say in the TV ads...priceless.
That's a great catch on Limbaugh and right to privacy, Steve. And it points up something I've long said about conservatives and the right to privacy, that they're in favor of it when it is used to justify protections they're in favor of, but against it when it doesn't. They would have a much better argument against Roe v Wade if they didn't attack the right to privacy itself, but rather the application of it in that particular circumstance. Frankly, I think the connection between the right to privacy and abortion is tenuous at best. The problem is that their arguments rely upon throwing the right to privacy baby out with the abortion bathwater.
Bork's career clearly peaked years ago when he was on the DC Circuit. He's been moving steadily downhill ever since the confirmation hearings. Today, it seems that all he does is regurgitate, in legal garb, increasingly far right-wing and even fundamentalist talking points.
I think it's a return, not a downward progression. He was more moderate when he was actually on the court, but his law review writings from the 70s are full of the same kind of extremist stuff he's been writing since his failed confirmation for the Supreme Court. So it's clear to me that while he was a judge who could be overturned by the Supreme Court, he had to moderate his views to avoid being overruled. Once on the Supreme Court, without a higher court to overrule him, he would almost certainly have ruled the way he wrote both before and after his stint as an appeals court judge.
I remember so vividly his confirmation hearings, and how shocked I was that even his opponents continually called him an "eminent" or "brilliant" legal scholar. I went through and read all of his law review articles and I don't think they could possibly be described as brilliant. Most of them were just plain bad.
Frankly, I think the connection between the right to privacy and abortion is tenuous at best.
I realize this isn't contrary to your point, but I'm not averse to the idea of a general privacy right. There is certainly, in my mind, textual and historical support for it. My problem comes when it is grounded in the "penumbras" of enumerated rights. This construct is the product of bad law which goes back well beyond Griswold and Roe. While there are issues in locating the abortion right in the right to privacy, that sort of line-drawing question is more a product of our judicial system generally than the taxonomy of a right to privacy. In any event, much of this difficulty could be avoided if the Ninth Amendment wasn't treated as the forgetten stepchild of our constitutional law.
I think it's a return, not a downward progression.
Point taken. Bork has long espoused some off-the-wall ideas. Way back when, his audience was limited to a relatively small group of right wingers whose ideas didn't get much play. Now, though, he has a wider (or perhaps simply a more vocal and rhetorically successful) base. More than a bit scary.
Bork's comments about Mill you quoted are breathtaking, even for one familiar with his earlier "ink blot on the Constitution" statements. I'm currently tracking down Barnett's books.
I'd like to get your view on something I've written about a couple of times. I don't see any moral or practical problem with gay marriage, but can we legally sustain a position that would legally define marriage as between two and only two consenting adults?
Far-fetched perhaps, but today's satire has a way of becoming tomorrow's 6 pm lead story: If the authoritarian-right horror story comes to pass and polyamorous marriages attain legal status, I'm convinced at some point the members of a criminal gang or terror cell will marry one another in order to obtain Fifth Amendment protection against incriminating one another.
You may fire when ready, Gridley.