The Volokh Conspiracy

Last summer, I was part of a Federalist Society symposium on the work of Judge Robert Bork. The presentations from the conference have now been published by the Harvard Journal of Law and Public Policy. I was on a panel considering Bork's controversial 1996 book, Slouching Towards Gomorrah: Modern Liberalism and American Decline, which argued that extensive government "censorship" (Bork's term, not mine) of sexually explicit, violent, and other harmful media is essential to curbing various social pathologies. My brief symposium essay critiquing Bork's argument is now available on SSRN. Here's the abstract:

In his controversial 1996 book Slouching Towards Gomorrah, Judge Robert H. Bork argued that we must adopt extensive censorship of violent and sexually explicit media in order to combat social pathologies such as crime, welfare dependency, and illegitimacy. In this brief essay, I argue that Judge Bork's call for censorship is in tension with his own earlier influential scholarship pointing out the dangers of government economic regulation. Cultural regulation poses many of the same risks that Bork highlighted in his critiques of economic regulation and also some unique dangers of its own. Like economic regulation, cultural regulation is prone to capture by interest groups and to overexpansion. In addition, the government will often be tempted to use cultural censorship to promote its own ideology and repress opposition speech. Both American history and modern European experience support these conjectures. Moreover, events since 1996 show that censorship is not necessary to combat the social pathologies that rightly concerned Bork and other conservatives. Over the last 15 years, there have been great reductions in social pathology without any increase in cultural censorship. In the long run, conservatives and others would do well to rely on private institutions rather than government to promote desirable cultural values.

In an earlier panel at the same symposium, Judge Frank Easterbrook summarized Judge Bork's outstanding work on antitrust regulation as showing that government should not "second-guess" markets. In my view, this point applies just as readily to government regulation of the culture.

I thank the Federalist Society for including me in this event despite (actually, because), of my strong disagreement with Judge Bork's views on the issues discussed by our panel.

One of the most interesting aspects of Robert Bork's version of conservatism, part of which I criticized in my recent symposium essay on his argument for wide-ranging government censorship, is how radical it is - in the sense of calling for drastic changes from the status quo. Although Bork praises Edmund Burke in his writings, the Borkean position is in serious tension with the "Burkean conservative" presumption against radical change and preference for gradualism that we debated here at the VC a few weeks ago.

In addition to calling for a ramping up of censorship to levels not tolerated by the courts for at least sixty years, Bork also argues for the near-abolition of judicial review, an institution that has grown over two hundred years. In his 1989 book, The Tempting of America, Bork argues that even the relatively restrained Supreme Court of John Marshall's era went too far in striking down legislation. In Slouching Towards Gomorrah (1996), Bork put forward a proposal to allow Congress to override judicial decisions striking down statutes by a simple majority vote. More broadly, Bork, in Slouching, rejects much of the last three hundred years of developments in in intellectual history of liberal democracy. He attacks the great thinkers of the Enlightenment, the Declaration of Independence, and John Stuart Mill for their emphasis on the importance of protecting individual liberty. The Declaration's invocation of the rights to "life, liberty, and the pursuit of happiness" is, according to Bork, "pernicious" if "taken . . . as a guide to action, governmental or private" (for citations, see my article on Bork and censorship linked above).

Both Bork's call for drastic changes in current policy and institutions, and his rejection of much of the Western tradition of individual liberty are seriously at odds with Burkean conservatism.

Not all conservatives go as far as Bork in urging radical change. However, many do support major divergences from status quo policies. This poses a difficult dilemma for those who also claim to be followers of the Burkean presumption against drastic change and in favor of tradition. By now, many of the policies that social conservatives want to alter have been in place for decades, long enough to become "traditions" in even a strong Burkean sense. Consider, for example, conservative proposals to make divorce far more difficult, ban most abortions, and privatize Social Security - all of which would drastically alter longstanding important policies. One can advocate a robust social conservative agenda, as Bork does, or one can advocate Burkean deference to tradition and a strong presumption against radical change. But it's hard to consistently advocate both at the same time.

To be completely clear, my own disagreements with Bork don't turn on the fact that he urges radical divergence from status quo policies and traditions. In my view, the Burkean conservative presumption against rapid change is largely unjustified. I object to Bork's policy prescriptions because I think they would move us in the wrong direction, not because I think we should be deeply suspicious of any major departures from the status quo. But social conservatives who sympathize with at least some of Bork's views yet also want to be Burkeans face a more difficult dilemma than I do.

One possible way to resolve the contradiction would be to argue (as Bork in fact does) that liberal policies of the last several decades themselves went against previous longstanding traditions. That may be true. But if radical change today can be justified on Burkean conservative grounds merely because it would return us to some earlier tradition, then almost anything can be justified. Nearly every conceivable public policy has been enacted at some point or other in human history, often lasting long enough to become traditional. For example, social conservative would then have to accept broad toleration (and even celebration) of homosexuality because doing so would reinstitute the pro-homosexual traditions of ancient Greece - the origin of Western civilization.