Robert Bork’s 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 this symposium article. As Judge Frank Easterbrook pointed out at the same symposium, the central theme of Bork’s influential antitrust scholarship is that government shouldn’t “second-guess markets;” that lesson, 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 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