pageok
pageok
pageok
A Pause to Give Thanks that Robert Bork Didn't Make it to the Supreme Court:

Bork: "Liberty in America can be enhanced by reinstating, legislatively, restraints upon the direction of our culture and morality. Censorship as an enhancement of liberty may seem paradoxical. Yet it should be obvious, to all but dogmatic First Amendment absolutists, that people forced to live in an increasingly brutalized culture are, in a very real sense, not wholly free." Judge Posner once wrote that the alternative to allowing an unregulated speech marketplace is permitting government censorship, leaving "the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us." Posner meant that as a criticism of censorship, but it seems that Bork would think that's a good thing.

With his flaws, I'll take Anthony Kennedy any day (though I'd much prefer if Douglas Ginsburg had made it). In fairness (?) to Bork, he seemed a lot less extremist, and ornery, on a variety of margins before the trauma of his confirmation battle.

CEB:

Censorship as an enhancement of liberty may seem paradoxical.

You think?
In seriousness, though, Robert Bork is not a stupid man, so I'm trying to read this in a light most favorable to him. Would we be more free if we were allowed to censor, say, computer-generated child pornography? I believe that it should be censored, but not because it would make me more free. Does he mean freedom to censor? I still don't get it. The only thing I can figure is that it boils down to a notion that is normally affiliated with leftist politics: the "right" to never be offended.
3.4.2006 5:36pm
Dave Hardy (mail) (www):
Yet another link between left and statist right: I recall a liberal high school teacher who argued that increasing government intervention increased freedom, since one is not truly free to do something if one cannot afford the cost, and that freedom had to be understood as something other than not being affected by the government.

Bork seems to take the same approach, on a moral rather than economic plane. Censoring TV leaves a person freer to have their kiddies watch it, etc.

Never trust a man who wears a brillo pad for a hairpiece.
3.4.2006 5:44pm
Kovarsky (mail):
It's odd that he should at once rely on binary rhetoric of freedom and at the same time deride it.

Of course in the state he identifies we're not wholly free. And we're not wholly "free" for a lot of other reasons which are so numerous I don't think I really have to go into them. Even if you accept the man's bizarre premise that we could be more free with censorship than without, we've already accepted that we're willing to compromise freedom for other objectives! Once you acknowledge that (unless Bork thinks that the absence of censorship is the singular source of non-freedom), saying that you're more free under this set of constraints than you are under that one doesn't get you that far.

I'd love to see the entire National Review excerpt. I simply take him to mean that "freedom" comes not only from being able to say what you want (the first amendment conception) but also being able to not hear what you don't want(i'm not sure you can find too much justification for this). the "right" to not hear what you don't want might well be a meaningful component of freedom, it's just not one found in our constitution.
3.4.2006 5:51pm
Jeffersonranch (mail):
I will support Bork. I will trust an originalist before Kennedy. I believe Bork would not use the bench to further an agenda and would be quite restrained in his rulings. As far as freedom goes which is an overused word, no government would ever survive a system of TOTAL freedom. Freedom don't make me laugh.
3.4.2006 5:58pm
tefta (mail):
Free? You denizens of the politically correct world of academe and the leftwing east and west coasts. Censorship? You got it all around you. You think you have free speech? Try saying something the PC police don't like and see what happens to you.

The truth doesn't seem to set you free, it makes you huddle together and cry that rightwingers are trying to take away your freedom to conform to the party line.
3.4.2006 5:59pm
CEB:
Another interpretation:
I see the government established by the US Constitution as essentially a majoritarian representative republic, but with one important feature: an anti-majoritarian Bill of Rights. So even if a majority of Americans would want to, say, ban the exercise of a particular religion, it could not be done. Bork seems to be advocating a pure majoritarian government with no anti-majoritarian protections--an ideal I disagree with, but which is not wholly unreasonable.
3.4.2006 6:05pm
Kovarsky (mail):
Jeffersonranch: original intent is hardly an objective theory of constitutional meaning, and is therefore quite subject to subjective differences in values.

tefta: what the hell are you talking about?
3.4.2006 6:06pm
Jeremy Pierce (mail) (www):
Just judging by the quote you give, I don't see what you see. He says he advocates (legislatively, not judicially) constraints on society in terms of brutalization. How this works out depends on what he means by brutalization, but as far as I can tell it just seems to be the claim that most originalists hold, which is that we can have laws against things like abortion of gay marriage, as states see fit. Maybe the context has more, but I don't see anything in this quote that requires allowing the government to determine what sorts of things people can and can't say in the kind of exacting detail Posner is talking about. So applying the Posner quote seems a straw man to me, at least without showing from the context that he meant what Posner would allow. The view he has in mind doesn't seem anything close to that, as far as I can tell.
3.4.2006 6:08pm
Walter Sobchak:
Where J. Bork would have allowed a Congressionally created law to stand, J. Kennedy often takes it upon himself to do make the law.

At least you can vote members out of Congress.
3.4.2006 6:08pm
Tocqueville:
This issue is hardly as simple as you and Posner make it out to be. Bork has a very legitimate argument, and Reason has a lot of explaining to do.

If you would truly like to engage a thoughtful discussion of the harmful exceses of fredom of speech as the summum bonum of life, run (don't walk) to read Rochelle Gurstein's magnifient The Repeal of Reticence.
3.4.2006 6:10pm
Jeremy Pierce (mail) (www):
Sorry, that should have been abortion OR gay marriage. I suppose it would include having laws against abortion OF gay marriage as well, if a state wanted to create an institution that consisted of permanent gay marriage without possibility of divorce, but that's not what I meant.
3.4.2006 6:12pm
Kovarsky (mail):
Jeremy,

It's unclear what you mean. Maybe Bork is making the point you think he is, but if he is, i'm not surewhy he would be operating with terms such as "free speech" and "censorship," rather than "privacy" and "dignity." I actually believe in light of the terminology that Bork does use, your reading is much more strained than whatever reading served as the basis for selecting Posner's comment as a foil.
3.4.2006 6:14pm
Cornellian (mail):
Glenn Reynolds recently stated, quite perceptively in my opinion, that Bork seems to have devoted his post-confirmation career to proving that the Senate was right to reject his nomination.

Bork's originalism amounts to ignoring the Constitution in the name of originalism. He's quite prepared to completely ignore the Ninth Amendment, just judicially write it out of the Constitution. That doesn't sound much like originalism to me.


Re the "freedom" thing, it sounds weird because it is weird. He's bought into the notion that the Vatican puts forward that "freedom" basically really means freedom to do what the Vatican thinks you should do, ergo prohibiting things the Vatican doesn't want you to do enhances your freedom. You can see precisely the same position advocated in Santorum's book.
3.4.2006 6:15pm
byomtov (mail):
I don't see what you see. He says he advocates (legislatively, not judicially) constraints on society in terms of brutalization. How this works out depends on what he means by brutalization,

Here's some more from Bernstein's link. I think it addresses your question:

Bork goes on to complain that "relations between the sexes are debased by pornography"; that "large parts of television are unwatchable"; that "motion pictures rely upon sex, gore, and pyrotechnics for the edification of the target audience of 14-year-olds"; and that "popular music hardly deserves the name of music."
3.4.2006 6:24pm
Fern:

If you would truly like to engage a thoughtful discussion of the harmful exceses of fredom of speech as the summum bonum of life, run (don't walk) to read Rochelle Gurstein's magnifient The Repeal of Reticence.

Bork isn't just saying, some people have used the freedom of speech in a way that has negatively impacted society, he is saying that we would be more free if the government censored out those parts of speech that the government feels are harmful to the populace. Maybe I am just not on Mr. Bork's intellectual level, I don't get how I can gain freedom by allowing someone else to make choices for me. I may very well be better off, but certainly not more free. Freedom, by definition, goes hand in hand with the ability to make bad decisions.
3.4.2006 6:24pm
Charlie (Colorado) (mail):
This would all be much simplified if we agreed on "freedom" in Mills/Hayekian terms, ie, "the absence of coercion". Don't like child porn: fine, you don't have to buy it, and real child porn is prima facie evidence of child abuse (which is inherently coersive we can assume, since we don't believe children can freely consent to sex.)

Sadly --- for Bork --- telling me what I may read doesn't fit that notion at all well.
3.4.2006 6:33pm
anonymous coward:
"...freedom had to be understood as something other than not being affected by the government."

Which it surely must be. If I am taken captive by a private entity, I am certainly not free. (The feds rescuing me would be affecting me in a way that enhances my freedom. Unless they gas the place and kill me, of course.)

I suppose Bork and those with similar values feel imprisoned by our culture--not free to live the lives that they want. This is a somewhat different "freedom" than most of us in the professional class value, but I wouldn't immediately dismiss it as irrelevant or stupid.
3.4.2006 6:47pm
Tom952 (mail):
" that "large parts of television are unwatchable"; that "motion pictures rely upon sex, gore, and pyrotechnics for the edification of the target audience of 14-year-olds"; and that "popular music hardly deserves the name of music."

Well, he is right about movies and TV, and I don't think much of the top 40 will make it to classic status. However, I do not believe our government can fix it without screwing up a dozen other things at outrageous cost.

As an alternative to censorship, I suggest we move the TV networks out of New York city and scatter them around the country so we can view a more balanced representation of our national culture. One of them should definitely be located in Dallas. I suppose one could stay somewhere in the northeast.
3.4.2006 6:47pm
Kovarsky (mail):
This is just hilarious:

Bork goes on to complain that "relations between the sexes are debased by pornography";

I'm sure he and Katherine MacKinnon dine together frequently.

that "large parts of television are unwatchable";

yes, like confirmation hearings. seriously, what is he saying here - what is the effect of crappy tv that undermines our freedom? The book "Everything Bad Is Good for You: How Popular Culture Is Making Us Smarter" is actually a pretty compelling scientific rebuttal to the idea that reality TV or the simpsons makes us dumber than happy days or leave it to beaver.

that "motion pictures rely upon sex, gore, and pyrotechnics for the edification of the target audience of 14-year-olds";

Sure, now Robert, what does this have to do with Freedom? Is the point that it's slimy? Sure. Is the point that it makes them dumber than if they had spent the time reading a book or gone to see a "real" movie? Sure. But how does this affect "freedom," or even to "brutalize the senses" in whatever sense you seem to contemplate.

and that "popular music hardly deserves the name of music."

what? like rap music? like the rap music that inspired more political activity than any musical form in history? or like sonic youth? yes, robert, they're ATONAL. i'm sure they would love to sit down with you and discuss music theory, since you seem to know so much.

seriously, the man's apparent point here, that musical appreciation is not almost completely subjective betrays his increasing irrelevance. he can't seem to acknowledge that law is no longer theoretically privileged over its predicate academic disciplines. he - like most other lawyers - doesn't know what he's talking about in economics, in lingusitics, analytic philosophy, history (although the closest here), mathematics, statistics, biology, and textual interpretation. the difference between Bork and others is that he seems to dogmatically refuse to acknowledge this academic phenomenon.
3.4.2006 6:53pm
Raw_Data (mail):
Bravo! Bernstein! on this point! (Though you really should look into what public wsorks is all about.) I think Bork's a whiner.

I never bought his imaginative &emasculating basis for antitrust ("consumer protection" is how I think he phrased it) and now he seems like just one more angry old fart.
3.4.2006 6:56pm
pdxnag (mail) (www):
Bork and the ACLU would seem to be on the same page as to the authority of the ABA. Now if they could just come to agreement on the content . . .
3.4.2006 7:05pm
therut:
The day the USSC takes the 2nd amendment and 4th amendment as serious as the 1st I will be almost satified. I don't think it will ever happen. The 1st amendment has been broadened beyond any meaning of what the Founders thoughts were. I'm waiting for the USSC to protect the others to the same extent. I should add they need to rein back real hard almost a halt on their commerce clause ideas or we will never be FREE. Freedom is just another word for ones ideology. You can not be free if you can force others to provide for you. Neither can the person you are forcing to supply the provisions. Not going to happen in my lifetime or probably ever.
3.4.2006 7:13pm
Pendulum (mail):
"I'm sure he and Katherine MacKinnon dine together frequently."

Wouldn't surprise me...cultural conservatives and '2nd wave' feminists have much in common, and I've heard of some unlikely alliances that operate between them.
3.4.2006 7:18pm
Kovarsky (mail):
Therut,

You do understand the irony of your calling for a more prominent second amendment role on the one hand and your adherence to framers intent on the first amendment, right?
3.4.2006 7:23pm
Nikos A. Leverenz (mail) (www):
This is nothing new. Bork has an entire chapter in Slouching Towards Gomorrah titled, "The Case for Censorship."

An even more onerous position he's taken since 1987 is his idea to make high court decisions subject to national referendum.

And let's not forget which side he was on the government's antitrust suit against Microsoft. Hint: it wasn't Microsoft.

I am OK with Kennedy being on the bench, but let's not forget why Ginsburg was withdrawn: allegations that he may have smoked marijuana with law students at a party.

Kennedy essentially owes his position to marijuana prohibition, and in my line of work I never fail to point that out.
3.4.2006 7:33pm
Kovarsky (mail):
I love the "lets overturn well established precedent to make IT conform to to original intent" argument, because it so-conveniently forgets that the mechanism for doing the overturning wasn't originally intended.
3.4.2006 7:54pm
Duncan Frissell (mail):
RB need not worry. Once we are able to exercise complete control over our senses (via some sort of brain-machine interface), we can reprogram our surroundings to exclude unwanted auditory and visual sensations without the assistance of others.

I know that the people in my vicinity will suddenly be well-dressed, well-spoken, and well groomed. Technology is better than Law.

Look for a big hassle over control of children's interfaces. Parents vs State and Parents vs Parents.
3.4.2006 8:22pm
Ilya Somin:
Yes, I completely agree. It is indeed a good thing that Bork didn't make it on the Court. Some of his more extreme positions (e.g. - support for large-scale censorship and abolition of judicial review) may be products of his bitterness at being mistreated during the nomination process. But even the Bork of 1987 might well have turned out to be worse than Justice Kennedy, despite flaws of the latter.
3.4.2006 8:26pm
A Berman (mail):
I think it's also worth pointing out that Irving Kristol had a very influential article labeled 'Pornography, Obscenity, and the Case For Censorship.'
http://www-personal.umich.edu/~wbutler/kristol.html
3.4.2006 8:28pm
Brian G (mail) (www):
I think your last sentence is very accurate. I am quite sure that Bork is really bitter and has gone a bit off the edge to prove he was wronged. Let's understand that if he was nominated in 1986, like he almost was, we'd have the verb "Scalia'ed" instead of "Borked" in our lexicon.
3.4.2006 8:42pm
Kovarsky (mail):
I think Scalia, if you take only his appellate record as of the date of his confirmation, would still get approved today. His incendiary stuff comes largely in his Court opinions.
3.4.2006 9:10pm
Bleepless (mail):
Is the right to be free of censorship a right solely for Americans or for everybody? If the latter, then is it just as absolute at all times? In 1945, the Nazi Party and its views were outlawed and prior censorship was established over the German media. Civil libertarian absolutism would condemn this.
3.4.2006 9:23pm
Daniel Chapman (mail):
If someone was going to be brutalized in a confirmation hearing, it couldn't have happened to a guy with a nicer last name.
3.4.2006 9:33pm
Smithy (mail) (www):
You'd take Anthony "International Law" Kennedy over the greatest constitutional lawyer of the past 30 years? What a joke.
3.4.2006 10:00pm
Kovarsky (mail):
Smithy,

Very persuasive point.
3.4.2006 10:34pm
Cornellian (mail):
You'd take Anthony "International Law" Kennedy over the greatest constitutional lawyer of the past 30 years? What a joke.

Who might this "greatest constitutional lawyer" be? It certainly isn't Bork. Kennedy isn't perfection, but he's not that bad either.
3.4.2006 10:47pm
logicnazi (mail) (www):
This sort of ridiculous manipulation of language really pisses me off. Bork is ignoring and twisting the meaning of freedom in a way which differs from the normal understanding in an attempt to make his conservative moral position seem more palatable. If people did more thinking and relied less on their emotional reactions this wouldn't make a difference. Bork's suggestions are what they are and calling them by a different name doesn't change that. Unfortunatly many people have allegiance or emotional commitment to certain terms like 'liberty' or 'freedom' rather than the real underlying states of affairs that constitute liberty or freedom (in fact sometimes the same people claim to be all for freedom but are against most concrete instances of this term) and this sort of claim can persuade those people.

The trick Bork is using is to suggest that more freedom for someone just means more options for them to choose from. Thus if I can choose to live my life in more different ways than you can I am presumably more free than you. While intuitively appealing this definition is ultimately vague as it depends on how one counts 'different ways'.

In particular Bork seems to be basically arguing that one way to live one's life is 'undebased by pornography' and thus free speech reduces our freedom because it inhibits us from living life in this way. However, the same argument can be made with any tyrannical law. We would be more free if republicans couldn't voice their opinions because then I could live a life undebased by those evil capitalist ideas which polute relationships between worker and employer. Ultimately freedom refers to a very specific class of activities and it simply isn't true that being unable to force other people to be 'unfree' reduces my freedom as much as their being told what they can't say reduces theirs.

Also I think there is the implication involved in his statement that somehow being expoused to pornography forces one's relationship to be bad in a certain way. While it is true that there is evidence suggesting that looking at porn is positively correlated with things like marriage failure this tells you nothing beyond the obvious, people whose marriages suck are more likely to look at porn. Moreover, at root this is just a brute value judgement I likely disagree with. Namely that it isn't worthwhile to increase the risk of breaking up to retain the right to look at porn.
3.4.2006 10:56pm
logicnazi (mail) (www):
Also I've always wondered what the source of such strong dislike for porn/sex is. I mean it isn't just like people who take these views think porn has been shown to be bad for people. Plenty of things have been shown to be bad but don't generate this sort of extreme reaction. Obviously hunger, war, and a hundred other things are even worse horrors affecting this world what motivates people to be so concerned with sex and porn.

Is it just a holdover from the way they were raised?

I've always been partial to the explanation that many of us who don't have the most promiscous love lives end up feeling very jealous/inferior and make themselves feel that they aren't missing out on anything (or at least that they are good and noble to do so) by ranting against porn/sex. But this is just speculation.
3.4.2006 11:02pm
Kovarsky (mail):
I believe the objects to porn in no particular order are:

(1) it conditions men to think (sometimes violently) of women as sexual objects (the radical feminist objection)

(2) it is impossible to police children's consumption of porn (and the related objection that children should not see it)

(3) it is impossible to police porn so that those who don't want to see it don't have to come into contact with it (the Bork objection)

(4) it corrupts individual minds in some morally abstract way (not in the MacKinnon way), even if the individual doesn't mind it (sister Mary's objection) (no pun intended)

(5) it violates "community decency" (a community interest, as opposed to the individual one in (4))

(6) it corrodes the composition of a community by attracting undesirables (another community objection, but more identifiable than (5))

(7) it creates some tangible economic degradation of the neighborhoods in which it is consumed (community objection)

(8) it creates demand for child pornography, which is sexually abusive to children

I'm sure I'm missing some. I don't believe that any of the intangible ones should really be regulated (except maybe the kids exposure in (2) and in the instance of (6) and (7) I don't think it should be regulated even though it has a tangible effect). I'm pretty sensitive to regulation based on (8) or (1), after the fit between data and policy is considered.
3.4.2006 11:31pm
Kovarsky (mail):
to be clearer - i'm more open to regulation on (8) and (1) based on the fit between data and policy.
3.4.2006 11:32pm
Michael Benson (mail) (www):
Try saying something the PC police don't like and see what happens to you.

I just did!

I'm waiting for the coppers to arrive. But, they seem to be slow...
3.4.2006 11:36pm
Lev:
"Liberty in America can be enhanced by reinstating,
legislatively, restraints upon the direction of our culture and morality," writes the former appeals court judge, now a resident scholar at the American Enterprise Institute.


"Originalist," eh. It seems to me he must be an originalist member of King Canute's court to believe a legislature can do that.


"Censorship as an enhancement of liberty may seem paradoxical. Yet it should be obvious, to all but dogmatic First Amendment absolutists, that people forced to live in an increasingly brutalized culture are, in a very real sense, not wholly free."





"Originalist," eh. Oh, right, Bork was one of those who said the 9th and 10th amendments had no meaning. Since they don't, the people don't retain the right to boycott Bad Culture and make an uproar and loud noises about it, government action is the only solution. Having a bunch of people like the elected yahoos in Congress determine what speech should or shouldn't be free is only marginally more comforting than having a bunch of senescent lawyers in black robes doing it.


Bork goes on to complain that "relations between the sexes are debased by pornography"; that "large parts of television are unwatchable"; that "motion pictures rely upon sex, gore, and pyrotechnics for the edification of the target audience of 14-year-olds"; and that "popular music hardly deserves the name of music."


And thus the old always conclude the younger generations are going to hell in a handbasket and The End Of Civilization As We Know It is just around the corner.

======================


An even more onerous position he's taken since 1987 is his idea to make high court decisions subject to national referendum.


There is a good idea in there, just not that specific one. If acts by Congress can be overturned by President and the Supreme Court in accord with the Constitution's separation of powers, and acts of President, can be overturned by Congress and the Supreme Court in accord with the Constitution's separation of powers, how, within the three branches and the Constitution's separation of powers, can acts of the Supreme Court be overturned? They can't. The only way acts of the Supreme Court can be overturned are 1. if 3/4 of the states do so, or, the Supreme Court reverses itself. This hardly makes any sense.

It seems to me that the other two co-equal branches should be able to render a Supreme Court decision a nullity, as if it had not been rendered, by 2/3 vote of each house plus president's signature.

The national referendum bit is, however, kooksville.

At the time Bork was turned down, I was glad - he was a bit "off". The way in which it was done was disgusting.
3.4.2006 11:46pm
Billy Budd:
I have heard one interesting -- if not entirely convincing argument against an expansive interpretation of the 1st Am. The argument goes something like this:

Originally, the 1st Am. only prohibited licensing. At that point, the prohibition was absolute: the government could never involve itself in licensing the press or other forms of speech (perhaps there was a state secrets exception. not sure on that one). Over time, the 1st Am. involved to include a prohibition on other types of pre-publication restraints. Then it expanded to post-publication restraints. As it did so, the Court involved itself in a whole host of aimless, senseless doctrines (the obscenity and fighting words cases) that are in no sense grounded in the history or text of the Const.

I don't really buy the argument though. It's main point seems to be that, though freedom of speech has increased on an absolute level, the doctrines that have underlied that increase are mired with theoretical inconsistency. As annoying as it is to read S.Ct. opinions that make little sense, I would rather live with that theoretical problem and enjoy the benefits of real-world freedom of speech.
3.5.2006 12:43am
Huh:
Therut,

I'd like to know since when has SCOTUS been unkind to the 2nd amendment? There may be a lot of regulation debate going on (same way there is with Abortion), but I've not seen a lot of rulings coming out that disaffirm an individual right to gun ownership.

Also, is there a fundamental right to own a machine gun? A bazooka? A flamethrower? I'd say not, since these didn't exist when the 2nd Amendment was ratified. Or am I framing the issue too narrowly? Could just anybody own a cannon in the old days? How far can the definition of "arms" be carried before it's strained to absurdity? I'm sure this is a well worn query, so if someone could just point me to good articles arguing pro and con, I'd appreciate it.
3.5.2006 12:55am
Raw_Data (mail):
What's with all the porno stuff? In any case Bork is so old he is probably just jealous.

If you think that naked babes on The Sopranaos (in The Bing) are "pornographic" then you are truly weird.

And that's "pay tv." No one has to watch it.
3.5.2006 12:56am
minnie:
Glenn Reynolds recently stated, quite perceptively in my opinion, that Bork seems to have devoted his post-confirmation career to proving that the Senate was right to reject his nomination.

Yup. Too bad he didn't speak up before. I was one who always assumed, because that's what I had always read and heard, that it was a tragedy that Bork didn't get confirmed. About four months ago, when I became "involved" in the blogsphere because of the Alito nomination, which I supported at first, I started reading some of Bork's statements myself, and I went WHOA. Is he serious?

That's when I started reading Alito's dissents, and I went WHOA. Is he serious?

The recent unmasking of the, shall we say nakedness, of Emperor Bork should cause those who give credence to his endorsement of Alito and other current Federalist Society type judges to have some pause. Who wants people endorsed by a person who is himself unendorseable?

As for whether his bitter confirmation battle is what made him more extremist, how about Opus Dei? Such involvement could have a large impact on any formerly sane mind.

He should resign.

Wait! Can you resign from Opus Dei? Or do they have certain, uh, means to make you reconsider whether you really want to "leave the fold"?

If the Washington rumors are true, I wonder what Bork, Roberts, Alito, Thomas and (this seems strange) Scalia talk about at those meetings before they strap on those painful leg restraints?
3.5.2006 3:47am
Anon7:
The Congress does hold a trump over Supreme Court decisions: impeachment of the Justices.
3.5.2006 5:16am
Kieran Jadiker-Smith (mail):
The Bork rejection has long been held up as the example of some kind of debased dialogue in Washington, the character assassination of a distinguished, if abraisive, scholar. But it seems to me that the Bork confirmation process was pretty good as these things go; the attacks on Bork were at least centered on his ideas. If any process represents a debased dialogue, it's Clarence Thomas', in which he was attacked mainly over a series of unsubstantiated, salacious allegations that simply couldn't be verified. The Thomas confirmation process is rightly held up as an ugly chapter in the history of Supreme Court appointments; the Bork confirmation process, on the other hand, seems to me like it worked more or less as it should.

I'm not old enough to remember either nomination, but the more I learn about Bork -- and the process that led to his rejection -- the more I think the Senate got that one right.

At the time of Bork's rejection, the argument was made that presidents would no longer nominate people with long paper trails, with controversial opinions that could be picked over and taken out of context. But that really hasn't come to pass; several nominees, like Ruth Bader Ginsburg and John Roberts, since then have come with ample paper trails of various sorts.

I've long heard that the Bork process represented something going terribly wrong in Washington, but the more I learn, the more I think his rejection represents something going right.
3.5.2006 5:20am
ashok (www):
I liked Walter Sobchak's point above very much, even though it had more to do with our ability to exercise control rather than the mores of a given society. I wish "Tocqueville" above would have said more.

I wonder if our blogging endeavors on the Internet make us far more libertarian about certain issues, like free speech, than we would be normally. We censor people every day, when we don't allow certain comments to be made in class or when we interrupt another person who is speaking to us. If a democratic elected gov't feels that certain mores need to be protected at the expense of people saying any old thing, can that gov't be stopped if they are representative of the majority and have the legal means to do as they will?

The tendency among most people here is to think of freedom of speech as an absolute right, a precondition for democracy. If you think as I think, which is that it is a result of democracy, and can be curbed very severely because the values that unite a people matter esp. when they have the legal means and will to enforce those values, then it is only a "precondition" inasmuch it contributes to that society's notion of the greater good.

I should come clean - I'm turning anti-free speech and anti-libertarian. Here are some thoughts on the state of free vs. responsible speech, and whether the two can be reconciled.
3.5.2006 5:21am
Cornellian (mail):
The tendency among most people here is to think of freedom of speech as an absolute right, a precondition for democracy. If you think as I think, which is that it is a result of democracy, and can be curbed very severely because the values that unite a people matter esp. when they have the legal means and will to enforce those values, then it is only a "precondition" inasmuch it contributes to that society's notion of the greater good.

No value has held up over the long term through the passing of laws prohibiting the criticizing of it.
3.5.2006 7:04am
Cornellian (mail):
"Liberty in America can be enhanced by reinstating, legislatively, restraints upon the direction of our culture and morality. Censorship as an enhancement of liberty may seem paradoxical. Yet it should be obvious, to all but dogmatic First Amendment absolutists, that people forced to live in an increasingly brutalized culture are, in a very real sense, not wholly free."

I wonder whether, on Bork's view, Congress or a state legislature in 1950 would have been free to pass a law prohibiting the public performance of the works of that notorious purveyor of "devil music", Elvis Presley.
3.5.2006 7:07am
PersonFromPorlock:
Huh: Could just anybody own a cannon in the old days?

As a matter of fact, 'privateers' were privately owned and operated warships (with, among other things, cannon) under contract to the government. So the answer to your presumably rhetorical question is "yes."
3.5.2006 7:25am
Frank Drackmann (mail):
I've been offended by Bork's scraggly beard since 1987. Why isn't there a law that he have to keep it covered up? There would be if I was in charge. People with a BMI over 35 would be restricted to their homes untill they lost weight. I think thats why censorship is a bad idea.
3.5.2006 8:47am
magoo (mail):
DB prefers Kennedy over Bork based on Bork's legislative proposals? Doesn't this suggest that DB's brand of libertarian constitutionalism is just as result-oriented and politically inspired as Nan Aron's and Ralph Neas's non-interpretivism? A pox on both your houses.
3.5.2006 8:47am
Bob Rogers (mail):
After the Bork hearings and now the Roberts and Alito hearings it has become clear that the Senate confirmation process is an effective filter on the nominee's political skills. Bork has clearly demonstrated after his rejection that he is completely lacking in these skills (which are probably more important than many would like to admit). While I was appalled at the time, I now feel that we are better off without Bork on the court.
3.5.2006 9:22am
Smithy (mail) (www):
Censorship as an enhancement of liberty may seem paradoxical. Yet it should be obvious, to all but dogmatic First Amendment absolutists, that people forced to live in an increasingly brutalized culture are, in a very real sense, not wholly free

I've seen many of you mock this statement and reject it out of hand. Where are the substantive criticisms of it? Increasingly, certain types of free speech are damaging our society, whether it be pornographic movie posters, or seditious statements by left-wing activists. Clearly, there are situations where the right to free speech comes into conflict with other rights. You are all presumably familiar with the fact that one cannot scream "Fire!" in a crowded theater. Americans have a right to bring their children up in a safe, decent world. To the extent that excessive free speech conflicts with that right, it should be curtailed.
3.5.2006 9:24am
Chris Farris (mail) (www):
How is it that Conservatives can't see beyond the now, to when the Liberals control the levers of Government.
3.5.2006 9:32am
Frank Drackmann (mail):
Don't let your children look at Borks beard..they'll turn to stone.
3.5.2006 9:44am
go vols (mail):
Actually, Smithy, the sentence reads that you may not shout fire "falsely" in a crowded theater. The difference is not unimportant. The whole analogy in _Schenck_ is inapt for anything that's not a false statement of fact that harms others, and Holmes was intellectually dishonest for applying it to that case. Of course, that hasn't stopped a thousand liberal and conservative enemies of the First Amendment from misusing the quote as a justification for censorship of opinions or expression they don't like.
3.5.2006 10:05am
JosephSlater (mail):
I quibble with DB's original point only to say that it was clear enough at the time of Bork's hearings what his positions were. Let's not pretend that Bork only became a kook out of bitterness at the way he was treated (and thus try to blame the "other side," when in fact the "other side" was always right about Bork). Prominent among the reasons Bork was rejected at the time was an article he had already written presenting the argument that only core political speech gets First Am. protection. While I guess that's more protective of speach rights than Smithy's "disagreeing with the Prez is treason" schtick, it was always obvious that Bork had a very narrow view of speech rights.
3.5.2006 10:50am
WB:
In fairness (?) to Bork, he seemed a lot less extremist, and ornery, on a variety of margins before the trauma of his confirmation battle

He probably was. A lot of his more recent stuff has an undertone of "I can't take this anymore."

Kennedy's opinions sounded a lot more like legal reasoning back in the late '80s. I'm not sure whether I prefer the trajectory Bork's polemics have taken or the trajectory that Kennedy's opinions have taken. I think I'm left with the idea that, of the three, Ginsburg on the bench would have been the optimal outcome.
3.5.2006 10:56am
Dave Hardy (mail) (www):
I suppose Bork could claim to be an originalist if the sole model for the original were John Adams (i.e., excluding framers such as Jefferson and Madison). Although I doubt Adams would have gone as far as Bork in excluding rights, he was a believer in the role of government in preserving morality and related matters. (Recognizing that in the 18th century preserving morality didn't focus on things like pornography, if only because it's hard to get excited over a nude woodcut, and in Massachusetts it was too cold to get naked anyway).

On the other hand, original understanding of the people at large is illustrated by what they did when Adams' party DID punish freedom of expression after the fact in the Alien and Sedition Acts: the American people destroyed the Federalist Party.
3.5.2006 11:13am
Cornellian (mail):
Ah yes, the old "will someone please think of the children" argument. So are we to live in a society in which adults are prevented from seeing things because of the possibility that a child might see the same thing?

And cite your evidence that "pornographic movie posters" are "damaging our society."

I've seen many of you mock this statement and reject it out of hand. Where are the substantive criticisms of it? Increasingly, certain types of free speech are damaging our society, whether it be pornographic movie posters, or seditious statements by left-wing activists. Clearly, there are situations where the right to free speech comes into conflict with other rights. You are all presumably familiar with the fact that one cannot scream "Fire!" in a crowded theater. Americans have a right to bring their children up in a safe, decent world. To the extent that excessive free speech conflicts with that right, it should be curtailed.
3.5.2006 12:16pm
Yankee_Mark:
I think it's a correct perception that Bork (like Al Gore) blew a cranial gasket when being turned away from the job he coveted. But any but the most ideologically inclined would have to admit that his views were on (or beyond) the fringe of American views and that his haughty demeanor toward Congress (the very body whose approval he needed) contributed mightily to his downfall.
3.5.2006 12:23pm
calvin massey:
Right and Left often commune on the dark side of the moon. But before you dismiss Bork's arguments as those of a thoroughly right-wing statist, you might wish to read the forthcoming book, Rediscovering a Lost Freedom: The First Amendment Right to Censor Unwanted Speech (Transaction Publishers, 2006) in which the author, Patrick Garry, makes a more sophisticated version of Bork's argument. This is not an endorsement of Garry's argument, but it is a suggestion that it deserves a thoughtful appraisal. Isn't it interesting how postmodern crits and socially conservative rightists can agree on the socially constructive function of speech, and then draw the conclusion from that fact that more speech ought to be muzzled?
3.5.2006 12:42pm
Joe Veenstra (mail) (www):
I think Mr. Bork simply has forgotten that one need not turn on the television.
3.5.2006 1:16pm
Ian Argent (mail):

Also, is there a fundamental right to own a machine gun? A bazooka? A flamethrower? I'd say not, since these didn't exist when the 2nd Amendment was ratified. Or am I framing the issue too narrowly? Could just anybody own a cannon in the old days? How far can the definition of "arms" be carried before it's strained to absurdity? I'm sure this is a well worn query, so if someone could just point me to good articles arguing pro and con, I'd appreciate it

As someone upthread commented, privateers owned cannon pretty much by definition. But as a Letter of Marque and Reprisal was effectively a government license, it could be argued that the privateers weren't acting as completely private agents.

However, plenty of purely civilian merchant vessels carried cannons. It was in fact perfectly legal for private persons to purchase, own, and operate heavy artillery, at least in the context of using it for self-defense on the high seas.
3.5.2006 1:28pm
R Gould-Saltman (mail):
Hmm...much of Bork's cultural "critique" seems to be the grumblings of a a bitter, academically inclined old man at what he perceives as the decadence of the culture around him, gussied up as a philosophical discussion, but really little more than mere crankiness (in the literal sense of being a crank).

Not surprisingly, young people are more interested in sex than he'd like, (and the market is willing to exploit that fact) and he thinks that "...the music these young people listen to, these days, it's nothing but a bunch of repetitive noise, you can't understand half the lyrics, and the ones you can understand are all crude. . . " Sounds like Plato, late in life. . .

Heck, I like "Rite of Spring", "Bitches Brew", and "Yojimbo", but, much though I'd like to, I have some difficulty scaring up an honest argument that the government should intervene to make other people like them, and to keep them from liking Justin Timberlake, Tom Green, and "Jerry Springer". Guess that's why nobody's offering me tenure.


rfgs
3.5.2006 2:39pm
Smithy (mail) (www):
I think it's a correct perception that Bork (like Al Gore) blew a cranial gasket when being turned away from the job he coveted.

How can you compare judge Bork to Al Gore? Bork is a great mind, whether you agree with him or not. Al Gore is a complete lunatic. I shudder to think what would have happened to this country if he had been elected, but I think there's a pretty good chance we'd all be learning Arabic right now if he had succeeded in stealing the election in 2000.
3.5.2006 2:52pm
Michael B (mail):
This issue is more problematic than is being presented and some of the counter suggestions in this thread have merit. Subjects which many/most believe to be worthy of censorship, as implying legislative proscriptions and certainly so as implying societal proscriptions:

bestiality
incest
child pornography and molestation
snuff films, even when they're not real
libel and slander (excepting in political fora)

And too, many believe in censoring any form of censorship. At the individual/personal level that would be tantamount to a nihilism or libertinism.

The philosophical discussion of this topic would need to begin at, or would certainly need to include, theories of and conceptions of human nature. As such, the notion that is now a closed book, written by the Rortys of the world, is specious at best.
3.5.2006 2:53pm
JJV (mail):
Mr. Bernstein:

Was America an unfree country in 1960? In John Kennedy's America obscenity laws could be enforced and were. Gross depictions of violence and sex in movies, t.v and electronically could be legislatively prohibited. I do not see that it was a dark night of fascism in America. Moreover, most government controls were on the state level. If someone wanted less regulation of smut or violence they could go somewhere where the law and culture was more forgiving or debased. They called it California. I am sick and tired of the argument that America was a dictatorship before the 1960's Court decisions that upended 200 years of history, practice and law. As for me, I'm a New Frontiersman. To hell with Lenny Bruce and Lady Chatterly's Lover if that's what it takes to recapture original intent. I'd rather a regime that allowed porn to be banned and political contributions to be unregulated than what we've got now which is the reverse.
3.5.2006 3:05pm
Aaron:
Huh: Could just anybody own a cannon in the old days?

PFP: As a matter of fact, 'privateers' were privately owned and operated warships (with, among other things, cannon) under contract to the government. So the answer to your presumably rhetorical question is "yes."

So, could a non-government agent own a cannon? The answer, I suspect, snark-boy(girl? person?) is no.
3.5.2006 3:19pm
Smithy (mail) (www):
To hell with Lenny Bruce and Lady Chatterly's Lover if that's what it takes to recapture original intent. I'd rather a regime that allowed porn to be banned and political contributions to be unregulated than what we've got now which is the reverse.

Amen.
3.5.2006 3:24pm
Aaron:
Smithy, if you truly believed that poltical speech is worth protecting (the main rationale behind de-regulating campaign contributions0, then you should cease in your tiresome calls that people who protest against the war in Iraq be prosecuted as seditious.

Clown.
3.5.2006 3:36pm
Aaron:
I apologize to the rest of the commenters for feeding the troll, but sometimes, you just have to...
3.5.2006 3:37pm
subpatre (mail):
Defending the modern treatment of the 1st amendment would be more rationally honest if there were any examples of original intent in that direction. There aren't any.

Nor are there any Federalist examples of parallel permissiveness. Pornography (from Greek pornographos, writing about prostitutes) was prohibited in colonies and states; whether drawn, painted, or performed.

None of the off-hand dismissals of Bork's bother to apply it to any other BOR items. Consistent? Who us?

It's no coincidence the ACLU ignores the 2nd Amendment; any interpretation as liberationist and encompassing as their take on the 1st would endorse limitless armament to private citizen(s).

Aaron -- the ad hominem's way out-of-line.

Many citizens, mostly wealthy, owned artillery before, during, and after the Constitution's ratification. A number of Civil War (both N&S) units were formed around individuals with privately owned batteries. If you have evidence of Founding Era cannon-controls, the academic community's interested. {/sarcasm}
3.5.2006 4:07pm
therut:
Don't people still own cannons. It think there is a group of collectors. The even fire those "dangerous " things from time to time. There are places you can go and learn to shoot machine guns out of helicoptors and it is not the military. Machine guns are legally owned by tens of thousands of private citizens today.. They are legal to own in all but 12 States. But the FED has controlled the legal market so they have fasely caused the price to be very high so only rich people (probably alot of the lawyers) own them. This by the way is a very democratic egalatarian principle----NOT.
3.5.2006 6:31pm
Kovarsky (mail):
Aaron,

If it makes you feel any better, I think Smithy is hilarious, but in the "at" not "with" way. I don't think his remarks are really the type that merit serious consideration.

Michael B,

Subjects which many/most believe to be worthy of censorship, as implying legislative proscriptions and certainly so as implying societal proscriptions:

bestiality
incest
child pornography and molestation
snuff films, even when they're not real
libel and slander (excepting in political fora)


i think most would tell you that the "consensus behind censorship" rationale for first amendment application is, um, completely at odds with our understanding of what the first amendment means.

i also think that by pointing out these exampmles you are confusing the issues of why, constitutionally, they may be restricted. for example,

incest is undesirable because it generally has a "victim," not because it is offensive to others

bestiality is undesirable because screwing animals is cruel and ruthless to the animal. also, bestiality is often considered obscenity, and not considered speech. to that extent it lacks a message, and things that lack messages can be regulated without violating the first.

kiddie porn is relgulable to the extent that it furthers the kiddie porn industry, not because it is offensive. allowing people to consume kiddie porn feeds the market demand, which is some sick shit for children

snuff films are regulable because they promote violent instincts towards women, not to mention that someone is killed in them. they are not regulable because they offend anybody.

libel and slander are only regulable to the extent that the statements are false. true but offensive statements are not actionable.

my overall point is this - the tack you have taken is to identify speech-acts that are are both offensive and have other regulable qualities. and, even though the other qualities generally serve as the basis for constitutionally valid regulation, you pretend that it is the offensiveness of the speech that justifies the regulation.
3.5.2006 6:36pm
SimonD (www):
Cornellian:
Bork's originalism amounts to ignoring the Constitution in the name of originalism. He's quite prepared to completely ignore the Ninth Amendment, just judicially write it out of the Constitution. That doesn't sound much like originalism to me.
The criticism that Bork wants to wash away the Ninth Amendment is fairly weak. It seems to me that, during the course of his career, Bork has advances two different points about the Ninth Amendment: the first is that whatever it means, it doesn't protect unenumerated rights. There are reasonable interpretations of the Ninth Amendment which do not make it a repository for unenumerated rights, circular arguments to the contrary notwithstanding. The other point Bork has made (see The Thempting of America) is similar to one that Lee Strang has made: what should the originalist do with underdeterminacy? That is, if the original meaning cannot be firmly established, what should the Judge do? Bork and Strang both say "he should do nothing." I disagree with this, but it's a reasonable enough resolution to an obvious problem.

On-topic: I think that it's problematic to say how Bork would have matured as a Justice by looking at his books. Who can say how he might have turned out in office had things worked out differently? The idea touted by some of the right of judges who don't grow is absurd; everyone grows. Scalia has grown. Thomas has grown. The problem isn't Judges who grow and mature, it's Judges who move left. It seems weird to me that anyone on the right would decribe moving left as growing or maturing; to me, it seems the precise opposite. We all grow, and to some extent, our growth is affected by our intellectual surroundings. Adequately put, I don't know that Robert Bork in 2006 is the same man that Justice Bork would have been in 2006.

In any instance, although a lot of Bork's recent writing troubles me, as indeed some of his earlier writing does, I would still prefer a Justice Bork, as he is now, over a Justice Kennedy, any day of the week. A punch in the arm is better than a kick in the teeth.
3.5.2006 7:01pm
therut:
I just googled "Cannons for sale" semms to be they are. Fully functinal also. Expensive Yes. I do not know if there are any Federal laws regulating them. Of coarse you then get into the spud and pumpkin cannons.
3.5.2006 7:02pm
SimonD (www):
Kovarsky:
I love the "lets overturn well established precedent to make IT conform to to original intent" argument, because it so-conveniently forgets that the mechanism for doing the overturning wasn't originally intended.
Well, we'll leave aside the original intent vs. original meaning argument, and simply point out that judicial review was clearly within both, as Randy has convincingly demonstrated, and has been widely agreed since the founding era.
3.5.2006 7:11pm
SimonD (www):
Yankee Mark:
any but the most ideologically inclined would have to admit that [Bork's] views were on (or beyond) the fringe of American views
Really - on the fringe of American views, you say?

Last week, the local news here reported that less than one in a thousand Americans could name the five freedoms guaranteed by the First Amendment. One of the hosts asked the other host if she could name them; she said, "I think the first three are life, liberty and the pursuit of happiness" - you couldn't make this up. A few months ago, Leno was asking questions about the Constitution to ordinary people on the streets; none of them could answer even the most basic questions. Asked what the fifth amendment protected, one woman asked if that was the one about being 21 to drink. I promise you, you could ask 100% of people arrested on COPS -- who were thus caught on camera being read their Miranda rights -- if they'd been made aware of their Miranda rights, and they would answer, completely honestly, either that they had not or that they wouldn't know. Eternal vigilance, it seems, is not the only price of liberty. A bit of self-education may also be required.

Frankly, in this day and age, anyone who has an opinion of any kind about the Constitution is already pretty close the fringe of mainstream America. The reason that the mainstream is called a stream, as George Carlin once observed, is that it is very shallow.
3.5.2006 7:26pm
Kovarsky (mail):
Simon D,

I do not know your background, but I just meant to point out that the majority of constitutional historians believe that Marbury manufactured judicial review. I respect Randy's position on the matter, but I was quite clearly identifying the consensus.

I'm not sure why you made the "intent versus understanding" point as though you think it is not something I am acutely aware of. Bork's an original intent guy. He's not an original understanding guy. That's why my comment focused on original intent. I'm not clear what your point is here.

And, as a piece of editorial advice, anytime you have to rely on the word "clearly" as the basis for your argument, you're in trouble.
3.5.2006 10:14pm
MarkM:
This focus on obscenity laws is bizarre, to say the least. Unless things have changed dramatically since I last made a study of first amendment law, obscenity is still considered unprotected speech and many jurisdictions, including the federal government, have obscenity laws on the books.
So the idea that the Supreme Court has undemocratically usurped the right of the majority to prohibit pornography is a straw man. If it really was the will of the people to prohibit pornography, there would be prosecutions left and right (including of the CEOs of multimillion dollar corporations, at least one of which is actively traded on the stock market) and juries would have no problem convicting. My guess is that in most places in the U.S., a jury would laugh at the idea of convicting someone for producing a film featuring run-of-the-mill sex acts.
Are Bork supporters arguing that the Supreme Court made the obscenity test too strict? Should nudity in films be prohibited also?
3.5.2006 10:27pm
Tocqueville:
MarkM,

The last time I made a study of First Amendement law, pornography and obscenity were two entirely diferent categories.
3.5.2006 11:32pm
DavidBernstein (mail):
Kovarsky, most lawyers who haven't studied constitutional history believe that, but it's clearly wrong.
3.6.2006 12:41am
Kovarsky (mail):
David,

Wait? I'm wrong and judicial review was intended, or "most lawyers who haven't studied constitutional history" are wrong, and judicial review was intended?

I certainly think judicial review to be an indispensible part of our legal system, and I'm skeptical that our republic would have survived this long if Marbury didn't happen. I'm not denying that whether or not the ruling of Marbury was intended by the framers is a live debate (as Randy Barnett's article indicates), I'm just saying that there's a strong consensus that it wasn't.
3.6.2006 1:20am
Kovarsky (mail):
I'm not going to pretend to be a constitutional history scholar, because I'm not (I'm an intangible property and a habeas guy - I know, weird combo).

Judicial review is not in the constitution. That it was not mentioned, however, does not inexorably lead to the conclusion that it was not intended. It is, however, an awfully important exercise of power that is just not mentioned, suggesting that if the framers failure to explicitly authorize it might be interpreted as an objection. Based on my limited knowledge, 11 delegates are known to have expressed an opinion on judicial review. Nine were for it, two were against. Without going into some annoying public choice theory, suffice it to say that it is very difficult to extrapolate from these 9 delegates the fact of collective "intention" to authorize review.

Maybe my understanding of the factual predicates are wrong, and that would be an error a constitutional historian would make. If the predicate information (9 out of 11) is correct, though, the rest of the exercise strikes me as your run-of-the mill exercise in analyzing whether or not a group authorizing a "text" can be said to have a specific purpose. I don't see any reason why a constitutional historian would be more qualified than, say, an economist, to conduct that analysis.
3.6.2006 1:29am
Kovarsky (mail):
excuse me, that would be an error that a constitutional historian would have privileged status to correct.

how is it that neither 2046 or the constant gardener were not even nominated in photography?
3.6.2006 1:31am
Kovarsky (mail):
by the way, the law that protects people from having they're history of renting porn exposed is called the "bork bill."

ironic.
3.6.2006 1:35am
Kovarsky (mail):
their.
3.6.2006 1:35am
ashok (www):
Cornellian wrote: No value has held up over the long term through the passing of laws prohibiting the criticizing of it.

Somehow, Catholicism did pretty well from 500 to about 1600 AD, and I'm pretty sure people didn't get to say whatever they wanted about it. Sparta lasted hundreds of years - and I don't think "freedom of speech" was a Spartan value.

You might say that in an "Enlightened" society, values must be questioned in order to have the power to stay. Of course, the usual argument is that values progress, that they don't stay firm but move with the flux that is time to become something "better." It probably isn't true that values that are questioned, even if they are fundamental Truths, last in the human imagination - after all, notice how debates work. Most times, the dialogue doesn't bring forth ideas never seen before, or bring forth the Truth (Douglas won the election after the Lincoln-Douglas debates). They usually end up being exercises in character assassination (Douglas won because of his racial stance, I think).

We human beings have an amazing capacity for deceiving ourselves, and for covering up what is most important.

If you want values to last, I think you need the state to be paternalistic to a degree. That means you need to tell people to shut up about certain things. I see freedom of speech as part of the Bill of Rights, one of the Amendments to the Constitutional, not part of the essence of Constitutionalism.

This response of mine gives you plenty of loopholes to attack me, but all of them stem probably from a belief in freedom where people can pretty much do what they want as long as they don't hurt others physically.

I think there are a lot of things wrong with a society that would commit to such an "ideal," which is just anarchism in my mind. I wouldn't raise kids with the idea that only physical hurt meant anything, and I certainly wouldn't expect my fellow citizens to think of me only in terms of what rights they could exercise to offend me.
3.6.2006 2:09am
ron (mail):
uhm, Bork fired the independent prosecutor, I think it was Archibald Cox, at Nixon's request during the Watergate scandal. Bork is a very bad person, pompous to boot, and would have been a terrible justice even without the difficult nomination process.
3.6.2006 2:12am
Kovarsky (mail):
I think it's clear that I disagree with Bork in the extreme, but the man's social reputation is actually quite positive. He's supposed to be a very very nice man, and his appearance at the confirmation hearing was supposedly misleadingly surly.

That being said, I don't know the guy personally.
3.6.2006 3:12am
JLR (mail):
The point should be made that Judge Bork's phrasing is deliberately provocative. There are many very even-tempered defenses of similar ideas regarding the First Amendment; namely that there is a rational justification for the government to be able to attempt to maintain public morality.

The best exponent of that viewpoint is Harry Clor, who in his work Public Morality and Liberal Society lays out an intriguing case for the importance (and necessity) of government making efforts to maintain a public morality in order to help ensure that the culture is one that is livable in all dimensions (not just those that in his opinion are given undue weight in First Amendment analysis).

Whether one agrees with Clor's arguments are not, it's a very interesting well-put exposition of such theories. It is key to recognize that one can put forth such positions of public morality without choosing to use pejorative terms that will deliberately inflame libertarians and others who would be facially opposed to such first principles of free speech.

Thanks.
3.6.2006 6:05am
JLR (mail):
Correction: First sentence of third paragraph: "Whether one agrees with Clor's arguments or not" --> thanks.
3.6.2006 6:07am
JosephSlater (mail):
Ron is absolutely right to bring up Bork's shameless, shameless role in the "Saturday night massacre" firing in a desparate attempt to support Nixon's view that Nixon was above the law. This probably played a role in the Senate rejecting Bork, and rightly so.

Also, again, we KNEW Bork had a radically narrow view of First Am. speech protections at the time of his confirmation hearings, because he had already laid out the argument in his writings that only "core" political speech got First Am. protection.

The guy was and is a radical and extremist and he would have made a terrible Supreme Court judge. I'm glad that some conservatives can come close to admitting this fact: the liberals were absolutely right about Bork.
3.6.2006 12:05pm
David M. Nieporent (www):
Ron is absolutely right to bring up Bork's shameless, shameless role in the "Saturday night massacre" firing in a desparate attempt to support Nixon's view that Nixon was above the law. This probably played a role in the Senate rejecting Bork, and rightly so.
This is the cartoon version of history, in which the funny-looking bearded guy is the incarnation of evil and we get to project all our hate on him.

In fact, history is much more complicated; there was no "desparate [sic] attempt to support Nixon's view" of anything at all. Both Richardson and Ruckelshaus, who resigned, had already agreed with Bork that they -- who had personally promised that they wouldn't interfere with Cox -- would resign to send a message, but that Bork should comply with the order, because if he resigned the DoJ would be in complete disarray.

There are a lot of legitimate criticisms of Bork, but this isn't one of them.
3.6.2006 1:39pm
Michael B (mail):
Some might remind themselves - especially so as pertains to the topic of censorship wherein self-flattery, presumption and unexamined received opinion often take center stage - that discussing an issue is not tantamount to dictatorially establishing a law, via diktat. Indeed, dismissing aspects of the discussion, out of hand and with little or no thought, itself reflects a type of coercive or presumptive ad hoc censorship.

And no Kovarsky, you misunderstand or misapply virtually everything forwarded in this post upthread. In advancing aspects of the general discussion, as initiated in the original post, I was doing no less and no more than that, discussing the issue as presented. For one, I don't accept Posner's dichotomy, as presented in the original post.

Life in general is a slippery slope and the law's very purpose is to navigate those aspects of society's moral/ethical concerns which society deems to be worthy of legislation.
3.6.2006 2:17pm
Kovarsky (mail):
Michael B,

I find me having to direct the following question to you more frequently than anybody else in the blogosphere, in light of an not in spite of your excessive nesting of latinate phrases and dependent clauses:

What are you talking about?

Some might remind themselves - especially so as pertains to the topic of censorship wherein self-flattery, presumption and unexamined received opinion often take center stage - that discussing an issue is not tantamount to dictatorially establishing a law, via diktat. Indeed, dismissing aspects of the discussion, out of hand and with little or no thought, itself reflects a type of coercive or presumptive ad hoc censorship.

Is your point here that I've dismissed things without thinkning about them (although you don't mention me by name, you seem to clearly have me in mind, and mention me in the next sentence). I think I've probably contributed a lot more to this exchange than you have. Even by your own admission, all you've really done is try to summarize what was above. I'm hardly being a reactionary. In fact, in response to an apparent "liberals" request that somebody tell him what was the objection about pornography, I wrote the following post, which you should have seen, upthread,

I believe the objects to porn in no particular order are:

(1) it conditions men to think (sometimes violently) of women as sexual objects (the radical feminist objection)

(2) it is impossible to police children's consumption of porn (and the related objection that children should not see it)

(3) it is impossible to police porn so that those who don't want to see it don't have to come into contact with it (the Bork objection)

(4) it corrupts individual minds in some morally abstract way (not in the MacKinnon way), even if the individual doesn't mind it (sister Mary's objection) (no pun intended)

(5) it violates "community decency" (a community interest, as opposed to the individual one in (4))

(6) it corrodes the composition of a community by attracting undesirables (another community objection, but more identifiable than (5))

(7) it creates some tangible economic degradation of the neighborhoods in which it is consumed (community objection)

(8) it creates demand for child pornography, which is sexually abusive to children

I'm sure I'm missing some. I don't believe that any of the intangible ones should really be regulated (except maybe the kids exposure in (2) and in the instance of (6) and (7) I don't think it should be regulated even though it has a tangible effect). I'm pretty sensitive to regulation based on (8) or (1), after the fit between data and policy is considered.


If that strikes you a particularly cavalier approach to the issues - "diktat" in your favored pretentchik - I don't know what we would call your contribution.

And no Kovarsky, you misunderstand or misapply virtually everything forwarded in this post upthread. In advancing aspects of the general discussion, as initiated in the original post, I was doing no less and no more than that, discussing the issue as presented. For one, I don't accept Posner's dichotomy, as presented in the original post.

Really, how? You made some silly argument, without data, about how there was a societal consensus for censorship on all of those issues. I made the point that the "consensus" to control depiction of them was not because the items were offensive, as many whose posts you "summarize" seem to believe, but because the effect that their depiction has on promoting the underlying behavior depicted. Maybe you don't agree with that, but it's certainly not a mindless assertion.

Life in general is a slippery slope and the law's very purpose is to navigate those aspects of society's moral/ethical concerns which society deems to be worthy of legislation.

what the hell does that mean? sometimes i get the feeling you just like reading your own writing. "life in general is a slippery slope...." great, very helpful.
3.6.2006 6:15pm
Michael B (mail):
Kovarsky,

I neither wish to encourage you nor to dissuade you from reading, much less responding to, any posts of mine - that is entirely up to you, obviously. But I would note that you initially responded to me, not visa versa. And frankly, while I've read posts of yours which contained relevant legal information, I have never read one that I can recall which reflected much depth of comprehension or of expression, even to the contrary, so I very often don't read your posts in the first place. If it needs to be said, you are free to return the favor, I will not be offended. I sincerely do not intend any of that in a personal sense, but it appears you appreciate frankness.

Too, for the sake of at least some clarity on the subject, I post in the manner I do (though I can point to many exceptions, as well as many variations) for an entire range of reasons, which I will not list here - though they all pertain to the ideological climate and corresponding received opinion, far too often expressed unthinkingly and in shallow and in presumptively boorish terms, which permeates and saturates the social, political, legal, cultural and moral/ethical spheres, both in America and in the international arena as well.

That's typically not the case here at VC, but this thread, imho, contains an entire catalog of shallow conceptions and banal recitations of commonly received opinion and too few expressions reflective much probative depth.
3.7.2006 2:07am
TDPerkins (mail):
SimonD wrote:

"It seems to me that, during the course of his career, Bork has advances two different points about the Ninth Amendment: the first is that whatever it means, it doesn't protect unenumerated rights."

Hopefully this is viewed to be commonsense...

...It does and it doesn't. It protects everyone from the state's doing what the feds can't as long as the states weren't a) already doing that or uncontroversially had done that prior to the adoption of the 14th. amend unless b) preventing the states from doing that was one of the agreed upon aspects of the 14th in the debates re it's adoption. If a state is empowered in it constitution after the adoption of the 14th do do something that contradicts the first 8 amendment in the Bill of Rights, then that empowerment is null and void. Outside of that, the states can do anything their constitutions say they can.

What no government is empowered to legislate about in the respective constitutions, those things are the unenumerated rights of the people.

Yours, TDP, ml, msl, &pfpp
3.7.2006 4:33pm
Kovarsky (mail):
Michael B,

While I've read many of your posts, perchance, to wit, elementary my dear watson, I find that you frequently present yourself the contemplative intellectual powerhouse alienated by your own keen understanding, heretofore an Akhileus meditating on the proverbial beach of academic purgatory, obscuring obfuscation whence came the absence of latinate phrases and gratuitously big words, stifled by the profound simplicity of the mere subject-predicate sentences alongside which your lattice-like prose bestrides like a colossus.

You're a funny dude, Michael B.
3.8.2006 12:08am
Michael B (mail):
I've been subjected to that one once or twice previously but it misses the mark, if I were attempting to impress I'd take a far more subtle approach.
3.8.2006 1:58pm