Borking Bork

Damon W. Root | May 27, 2008

Over at the Volokh Conspiracy, libertarian legal scholar and reason contributor Ilya Somin directs us to his essay, "The Borkean Case Against Robert Bork's Case for Censorship," which is now available for downloading at the Social Science Research Network. In short, Somin deploys Bork's own arguments against anti-trust legislation to undermine Bork's later position in favor of government censorship. While the whole thing is well worth your time, here's one particularly sobering description of Bork's illiberal approach to free speech and popular culture:

At the outset, it is important to appreciate the radical sweep of Judge Bork's vision in Slouching Towards Gomorroah. Although Bork is usually viewed, quite correctly, as a conservative, there are some radical implications to this book. Judge Bork not only criticizes modern liberals and libertarians, he also goes way back to the source, so to speak, and attacks the Enlightenment, the Declaration of Independence, and John Stuart Mill. Judge Bork harshly criticizes the principles of the Declaration, arguing that they are "pernicious" if "taken...as a guide to action, government or private." He denounces John stuart Mill's liberty-protecting "harm principle" as "both impossible and empty."

There is, therefore, a great deal at stake in considering Judge Bork's argument in Sloaching Towards Gomorrah. If we accept it, we would have to reject a very large part of the American tradition of individual freedom and perhaps even the broader Western tradition of liberalism.

Whole thing available here.

Comments

Plant Immigration RIghts Suppo|5.27.08 @ 2:27PM|#

The more I learn about Bork the more glad I am he was Borked.

Bingo|5.27.08 @ 2:31PM|#

I read the title as "Boinking Bjork" and was a little disappointed it was about a judge and not quirky-yet-adorable Icelandic singers

|5.27.08 @ 2:39PM|#

That is one first rate smack down.. or at least would have been if it had been, you know, written in the same millennium as what it's rebutting.

Elemenope|5.27.08 @ 2:41PM|#

That is one first rate smack down.. or at least would have been if it had been, you know, written in the same millennium as what it's rebutting.

My sentiments exactly.

Episiarch|5.27.08 @ 2:42PM|#

The more I learn about Bork the more glad I am he was Borked.

Me too.

I read the title as "Boinking Bjork" and was a little disappointed it was about a judge and not quirky-yet-adorable Icelandic singers

Not bad. I saw it and thought "what is the Swedish Chef making for dinner?"

|5.27.08 @ 2:44PM|#

"what is the Swedish Chef making for dinner?"

Shredded Wheat and cranberry sauce?! My absolute favorite!

/ embarassed

|5.27.08 @ 2:48PM|#

Do you suppose that Bork would use an ear trumpet if he were on the Supreme Court today?

Episiarch|5.27.08 @ 2:53PM|#

Reinmoose, you should never be embarrassed about pulling obscure Muppet trivia out of your ass like that. Well done.

|5.27.08 @ 2:55PM|#

Epi -
On that particular special, I actually have a version recorded off of CBS on VHS, so I have all the necessary scenes that were not included in the DVD (which I did not purchase for that reason). Not having the Fozzie/Snowman scene was an absolute deal breaker.

|5.27.08 @ 3:06PM|#

That is one first rate smack down.. or at least would have been if it had been, you know, written in the same millennium as what it's rebutting.

Philosophy (in this case legal philosophy) is all about having critical dialogues with great thinkers of the distant past.

|5.27.08 @ 3:15PM|#

I think Bork is an intelligent person, some of his legal writings strike me as sensible, though I disagree with his policy calls (he of course may have conflated the two). You have to say, Bork was Borked in part because, as a former academic, he had written a lot and his views were well known. I doubt there is much difference between Bork and Alito/Roberts/Thomas. Bork just could not hide his views as well (and he may interestingly enough have not done so if he could).

It's judges like those that will make me not vote for McCain and for the Dem this Nov. I like McCain, but the kind of SCOTUS judges he has vowed to appoint are imo bad news.

brian|5.27.08 @ 3:19PM|#

I remember reading Bork's book, the Tempting of America, for a class I took in college. It was infuriating. He put forth his argument for legislative intent, then in his "proof" that it satisfied Brown v. Board of Education, he violated it himself.

About blaming the Enlightenment, Somin is dead on. And that's a common strand among conservatives. For that same class, I remember reading The Marriage Problem by James Q. Wilson (Reagan appointee, board member of the American Enterprise Institute, and recipient of the Presidential Medal of Freedom by Bush in 2003). In that book, he explicitly blamed the Enlightenment for American society's moral decline. I'm not exaggerating when I say that he argued that the Enlightenment idea that people can make their own decisions has lead to the decay of our society.

|5.27.08 @ 3:26PM|#

Hugh Akston,

Indeed:

Pro Libertate: . . .I just totally schooled you, you Athenian loser.
Socrates: Yes, I must confess that you are the greater thinker.
Pro Libertate: You may kiss my ring.

Been Borked Before|5.27.08 @ 3:27PM|#

Bork's a royalist. The truth is out.

|5.27.08 @ 3:29PM|#

Of course I completely agree with the thesis of this paper. But why does it have to read like it was written for a ninth grade civics class?

"I could probably fill this entire Essay
just by listing these sorts of examples."

and

"Frankly, I would not be willing to accept censorship even if that were true."


Frankly, I could probably fill this entire Post with examples of why I'd be willing to accept censorship it if was to only suppress bad writing like this, and other writing like it.

Episiarch|5.27.08 @ 3:30PM|#

I actually have a version recorded off of CBS on VHS, so I have all the necessary scenes that were not included in the DVD (which I did not purchase for that reason)

Get the PAL version, which has the deleted scenes. That is assuming your DVD player plays all formats; mine does. If not, get a better DVD player.

|5.27.08 @ 3:44PM|#

Get the PAL version, which has the deleted scenes. That is assuming your DVD player plays all formats; mine does. If not, get a better DVD player.

I don't usually have a reason to care, but I didn't know that they had built PALNTSC conversion into some players. And so cheap, too! I may get one for my folks, since they never know what to do with the home movies they get from our European relatives. Thx.

|5.27.08 @ 3:47PM|#

Since no one's said it yet:

"Bork, bork, bork! A freda er heyerdan der fron..."

|5.27.08 @ 4:00PM|#

Get the PAL version, which has the deleted scenes. That is assuming your DVD player plays all formats; mine does. If not, get a better DVD player.

OOoooooh. Where do I get a PAL version? Forgive my ignorance, but is that the European format?

|5.27.08 @ 4:13PM|#

I doubt there is much difference between Bork and Alito/Roberts/Thomas.

I know that's not true vis-a-vis Thomas. I'm not as up on this stuff as I used to be, but Thomas is very much the constitutionalist, and about as close to a limited-government type as there is on the Court. Bork, on the other hand, has described the Ninth Amendment as equivalent to an accidental ink spill by the founders. Bork favors the Constitution when it suits his purposes.

Episiarch Smirnoff|5.27.08 @ 4:24PM|#

You can get a PAL version from the UK, I believe. Try Amazon.uk

|5.27.08 @ 4:29PM|#

Hugh Akston,

Furthermore--

David Hume: Well, that's true, but--
Pro Libertate: Yeah, yeah, just commit your argument then to the flames: for it contains nothing but sophistry and illusion.

BakedPenguin|5.27.08 @ 4:38PM|#

Reinmoose- Episiarch is right; amazon.co.uk is where I got my (PAL) copy of The Damned's Tiki Nightmare - (I wanted it badly because I was actually at the show when it was recorded.)

|5.27.08 @ 4:43PM|#

You go too far Pro Lib, when you disparage David Hume. After all;
David Hume could out consume Wilhelm Friedrich Hegel...

Franklin Harris|5.27.08 @ 4:52PM|#

And Wittgenstein was a beery swine
who was half as sloshed as Schlegel.

|5.27.08 @ 5:08PM|#

MP,

For a DVD player that plays EVERYTHING (well, except Blu-Ray and HD-DVD) check out the Oppo DV-980H. You just need to punch in a code.

|5.27.08 @ 5:20PM|#

I didn't disparage Hume, I just kicked his ass with my greater intellect. Tune in next week when I mock Habermas.

Episiarch|5.27.08 @ 5:20PM|#

Yup, Matt is correct. I have an Oppo.

|5.27.08 @ 5:29PM|#

John Stuart Mill, of his own free will,
On half a pint of shandy was particularly ill.

|5.27.08 @ 5:42PM|#

Warren,

While you're at it, don't forget the Philosophers' Football (Soccer) Match. Great header by Socrates!

|5.27.08 @ 5:49PM|#

Matt L, are you willing to publish your home address so we can visit you with torches and pitch forks if that player craps out in 4 months? 2-3 years ago I enthusiaticaly endorsed a $60 region-free PAL/NTSC DIVX/XVID player to everyone who would listen - even had decent enough front panel controls to be very usable if you lose the remote. Well...of the 6 or so people who bought them, 5 were dead within about 6 months. I mean the DVD players were dead, not the people. Even though they worked really great for a while, there were several flaws designed in - parts operated very hot, capacitors located next to very hot resistors in the elcheapo linear power supply that would cause the caps to bulge after as little as three months, a heat sink for an IC that was an adhesive backed strip of maybe .01" thick copper taken off of a roll, components in the power supply glued (RTV, whatever) to hold them in place (a normal practice) but they were already touching the parts they weren't supposed to be contacting before the glue dried, and the normal oddities you find in products manufactured with cheap labor (lots of manual operations that would be unacceptable in a 1st world assembly line). The only reason I'm not still getting ribbed over that is because 3 of the people who bought them no longer work where I do.

so, Matt, what kind of personal guarantee were you offering on these? Are you willing to risk your reputation here? I value my reputation here at right around 5 bucks. Can you afford to take that kind of risk?

|5.27.08 @ 5:59PM|#

I was looking at this player for $80:

http://www.amazon.com/exec/obidos/ASIN/B000G18DR0/reasonmagazineA/

But let me make it perfectly clear that I am NOT recomending this or any other product to anyone, and I can't fix your VCR either.

|5.28.08 @ 11:55AM|#

Matt, thank you SO MUCH!! for posting that info!
I've had 2 of the OPPO's, that very model, for many months now (six months for one, circa 9 months for the other) and love them. Rugged, reliable, etc.
I bought them for their ability, rare as hen's teeth, to play DVD-A and SACD as well as DVD.
Only found out by accident that they could do pal to ntsc conversion.
And now to find out that they are capable of being region free as well!
Made my day!

(If you need help repelling the invaders suggested by another poster, let me know.)

hugs,
Shirley Knott