Judge Dread

Robert Bork's hyperbolic assault on contemporary culture is a best-seller. But it has even his conservative allies backing away.


Say what you will about the ferment on the traditionalist right these days, it certainly makes for some memorable headlines. "Is Our Society Worth Saving?" asked a perfectly serious January article in the magazine Insight, the premise being that it might be wiser, faced with a nation as forgetful of the Deity's will as ours, just to leave it to its brimstone fate. Denouncers of Darwinism and of the separation of church and state are making it into even respectable conservative magazines. The religion-in-public-life journal First Things grabbed its moment in the darkness with a symposium positing that the federal government–GOP Congress and all–had become "illegitimate," a "regime" based on "usurpation" led by the courts but connived at by other branches. Panelists mused whether divine intent might be better served by passive disobedience, selective violence, or all-out revolution to install the faithful in power.

One of the First Things symposiasts was former judge and law professor Robert Bork, who did disavow some of the more extreme proposals. It's not hard to see, though, why the organizers might have expected to find him a kindred spirit in head-for-the-hillsery. "This is a book about American decline," he declares on page 2 of his Slouching Towards Gomorrah. In fact, ours is "a degenerate society," "enfeebled, hedonistic," "subpagan," and headed for "ultimate degradation" in "the coming of a new Dark Ages." "Bork Blames Yale for Decline of Western Civilization," reported the Chicago Tribune, in another of those memorable headlines.

Slouching became a national best-seller, and it's a book likely to have unhappy consequences for some time to come. One is to finish off any reputation that Judge Bork, who once studied economics at the University of Chicago, might have retained as even vaguely sympathetic to libertarian ideas and concerns. America's real problem, he now proposes, is that Americans enjoy too much freedom, not too little. One chapter title inveighs against "The Rage for Liberty and the Pursuit of Happiness"; throughout the book "liberty" and "pursuit of happiness" turn up as pejoratives. Bork traces "our modern, virtually unqualified enthusiasm for liberty" in part to the Declaration of Independence, a document whose influence he generally deplores. He assails as "both impossible and empty" John Stuart Mill's principle that law should interfere with the individual's liberty only for the sake of protecting other persons. Instead he calls for "law based on morality": "society may properly set limits on what may be shown, said and sung." His pivotal chapter is titled "The Case for Censorship."

The blue-jacketed, purple-titled tome illustrates the extent to which many conservatives have shifted their polemical energies from earlier themes to that new preoccupation, the culture war, bringing to it in many cases the sort of combativeness of tone that befits a war rather than a mere disagreement among fellow citizens. For Bork himself, the shift means departing from his earlier role as a leading public spokesman for the case against judicial activism (a case that many, including this writer, believe still badly needs making on its own terms) in favor of a less obviously suitable role as roving analyst and decrier of American popular culture.

Finally, Slouching serves as another sign, if one were needed, of how tense relations are getting these days between the libertarian and traditionalist wings of American conservatism. In recent years a sizable phalanx of trad writers and thinkers has emerged who on principle, it seems, reject an appeal to such concepts as liberty, rights, individualism, and choice in resolving questions about the appropriate domestic scope of government. During the long struggle against leftism, many of these thinkers were apparently willing to put up with at least the more moderate libertarians as trench mates; they might even on occasion speak as if they themselves shared the goal of preserving and extending individual liberty. Now many are beginning to treat libertarian notions as little better and in crucial respects perhaps worse than the loathed ideas of the liberal Democrats. (For cases in point, consult many recent issues of The Weekly Standard.) Bork himself seems headed in this direction. His book sets up–talk about moral equivalence!–"radical egalitarianism" and "radical individualism" as opposite-but-equal (and somehow allied) threats to America, and proceeds to spend more energy denouncing the second than the first. "Free market economists are particularly vulnerable to the libertarian virus," he warns.

And yet the critical reception of Slouching also illustrates why it would be premature to forecast that the American right is on the verge of breaking into its component traditionalist and libertarian wings or, alternatively, of enlisting en masse in the mooted culture war. For the fact is that the book fared rather badly at the hands of mainstream conservative reviewers, who were variously severe on its tone, its analysis, and its concrete proposals. The proposed transformation of the American right from a party of liberty to a party that finds liberty much overrated has already run into more than a little resistance; and that resistance suggests that such ideals as freedom, tolerance, pluralism, and individual rights are not so easily downgraded within the overall scheme of American conservatism. They may even turn out to be, as you might say, organic to it.

Much of the actual content of Slouching consists of a familiar run-through of controversies of the day, from crime to affirmative action to the state of the universities. Aside from the unusually vehement tone, of which more in a moment, little in these sections will surprise veteran readers; Bork himself modestly agrees that his goal here is less to be original than to sum up what many strongly believe. The mix of issues, to be sure, has changed from what might have appeared in such a book a few years ago, with economic issues having dwindled to a relatively small role and foreign policy, aside from recriminations over Vietnam, nearly absent. In their place appear newer concerns such as the boom in out-of- wedlock childbearing and the ill consequences of unilateral no-fault divorce.

It's hardly (to digress for a moment) as if proponents of individual rights have somehow collectively run away from these latter issues of family collapse. The most influential sounder of the alarm on rising illegitimacy rates has been Charles Murray, author recently of What It Means To Be a Libertarian (and self-described as such). And many commentators on family law have deplored modern government's refusal to recognize anything stronger than a scrap-of-paper, disposable-at-will marriage "contract" even when the parties unmistakably wanted or expected something with more binding force.

Much of the Bork volume's distinctiveness consists not in content but in the tone in which it's delivered. "The enemy within is modern liberalism," the author pronounces, and then personalizes the argument at every turn into a reflection on the presumed motives and character failings of his opponents, in sweepingly defined classes. Antiwar protesters of the '60s "were not motivated by concern for the people of Vietnam," and none of them should be deemed honorable in their aims, which in fact on a practical level amounted to little more than draft dodging. (If so, why did antiwar sentiment run higher among women than men?) Discussing currents within Roman Catholicism, he announces flatly that "the feminists within the church engage in neo-pagan ritual magic and the worship of pagan goddesses." One searches such sentences, as one might search a pet carrier for air holes, for some ventilating modifier like "a few of" or "some of the most extreme." But again and again there is none.

There is much more of the same. The intellectual class is "necessarily of the Left"–though elsewhere Bork points out many intellectuals' flirtation with fascism between the wars–and "is composed of people whose mindset is very like that of the student radicals of the Sixties." Among the features of that mindset, he adds, is "hostility to this culture"–a strange comment from one who, after a long career in typical intellectual lines of work (law professor, think tank fellow, appellate judge, book author), has written a volume whose theme from first page to last is hostility to present-day American culture. Along with their other failings, it seems, American intellectuals are incompetent at their actual work: "Intellectuals may be intellectually negligible, but they are an important cultural force nonetheless," he coolly declares.

Reviewers of almost every political stripe parted company from Bork on this matter of tone. Harvard law professor Mary Ann Glendon, a respected social conservative who'd supported Bork's nomination to the high court, told The Boston Globe she "felt bad" at reading his latest: "it was painful to see him criticize moderates. I don't see why we have to be read out of the rolls if we don't hew to the party line, point by point." Libertarian legal scholar Richard Epstein in The New York Times Book Review said, "Bork never engages his opponents on their own turf. He only assaults them."

The book's true fuel and fury comes on the issue of popular culture. Inevitably, the most egregious rap lyrics serve as the centerpiece, but they really symbolize the evils of rock in general as corrupter of youth. Things were already getting out of hand in this respect by the '50s: "Portable radios became widely available so that youths could choose their music without parental supervision." Although contemporary rock bands "lack even a trace of the musicianship" heard in the big band era, in Bork's view, "MTV is all the more dangerous because it is brilliantly produced." Mainline television "undermines authority" in the same general manner, as witness the atmosphere that prevails in so many sitcoms: "Families are relatively egalitarian; at work, subordinates ridicule their bosses and usually prevail over them." And the ultimate horror is the Internet: Depictions of bestiality, pedophilia, and incest are "among the most popular" erotic images to be found there, he says, an assertion that may astonish many Netizens.

How exactly has the judge learned about all these outrages? It's clear from early on that he's not closely familiar as a direct consumer with many of the cultural trends he discusses, which often lends a catch-as-catch-can quality to his gathering of material: As he told an American Enterprise Institute audience in December when someone asked about his methods of inquiry, he sent his research assistants out in search of the worst examples. Staying over in a Manhattan hotel one evening, he discovered the borough's notorious public access channel. I could find in the book no evidence that the retired judge has ever gone online, but he did read someone's article about the awful stuff available there.

It's a big country (and, as regards the Net, a big world), and diagnosing its cultural ills on the basis of the worst you can dig up in its darkest corners will yield far from a balanced picture. (Imagine someone whose idea of 19th-century London had been formed only by accounts of opium dens, the smuttier Rowlandson engravings, and the police reports in the Jack the Ripper case). Where I live, it's a lot more of a mixed bag: Borders and Barnes & Noble stock plenty of dotty cultural-studies output, but also a selection of paperback classics vaster than could be found almost anywhere 25 years ago; a new translation of The Odyssey is a hot seller, while Shakespeare, Jane Austen, and Thomas Hardy revivals all proceed with vigor. Trash TV is a blight, but the effects of justified ridicule are beginning to show even there, while the film reaction against Tarantino is satisfyingly underway. Rap music has seen a sharp fall-off in market share in recent years, while interest mounts in retro categories, including lounge and Tin Pan Alley. Even as Bork reproached Americans–from the best-seller list–with having created perhaps the most depraved society in human history, the number-one box-office draw was, for better or worse, 101 Dalmatians.

He is ready for this objection. "It is no answer to point out that much of popular culture is harmless or even benign. The worst is the leading edge." But is it? This is what Epstein calls Bork's "model of linear decline," in which movies must become more violent each year, Madonna's antics kinkier, and so forth. It's a model Bork founds on the idea of boredom and jadedness: "it is necessary to keep upping the ante by being ever more shocking," while consumers themselves tire of the old degradations (shoot-'em-up video games) and demand something yet more titillating (snuff films). And it also owes something to the metaphor, so prized among trads, of the "moral capital accumulated by prior generations," a metaphor that simultaneously provides a way to account for any current cultural indicators that are inconveniently favorable, deprive the present generation of any credit for having gotten these aspects of culture right by its own choices, and plant the idea that these indicators are sure to turn worse in the future as the capital runs down.

In fact the chart of supposed linear decline shows no such thing, even accepting Bork's premises on what is good and bad in culture. As he concedes, TV is portraying police and prosecutors more often as heroes these days. In film, the then widely hailed and now almost forgotten steamfest Last Tango in Paris turned out not to be a leading edge of anything, while the Star Wars series was. People eventually began laughing at Madonna, and not in a nice way, which may be one reason she's trying to move on to serious roles now. Individually, most adolescents who act out do not proceed in a straight line ever downward to crash in early romantic deaths: Something causes most of them to readjust their time horizons in search of longer-term satisfactions, in the mysterious process known as growing up. The thesis of cultural declinists must be that the process of unforced improvement and learning we see take place in individuals all the time couldn't possibly take place writ large.

But Bork needs his model of linear decline because he's determined to make the argument that persuasion, change of fashion, natural maturing processes, and ridicule can never suffice to elevate the tone of one or another area of culture: The cops must instead be called in. For a "serious attempt to root out the worst in our popular culture," he wishes to argue, "directly coercive responses may be required." When he proceeds to his call for censorship, he has little patience for the drawing of conventional lines between private adult perusal (OK) and public display or availability to children (not necessarily OK). Government should be regulating adults' morals every bit as much as children's, in his view. Remarkably, he manages to view bawdiness behind closed doors as worse, not better, than in public places: "The more private viewing becomes, the more likely is it that salacious and perverted tastes will be indulged." He brushes aside as irrelevant efforts to get the taxpayers out of funding such things: Mapplethorpe's and Serrano's pictures "should not be shown in public, whoever pays for them." His premise, in fact, is the government's right to guide and shape the characters of adults, which means that in his view censorship should cover violence as well as sex, and plain old prose as well as videos, record lyrics, and the like.

The upshot, if Bork had his way, would be a repression of culture that would go in some crucial respects beyond anything of which living Americans have memory, as in the case of his proposed right of censors to control private reading of violent prose. For that matter, since violence or sex are by no means the only types of content that might corrupt character, there's no particular reason why censorable categories should remain limited to those two. Why not ban portrayals that glamorize disrespect to parents? And if the source of all this is the state's right to mold adult character, why stop at prohibition of bad texts? Why not let officials prescribe mandatory reading, listening, and viewing lists so as to promote character formation? Bork feels it necessary to deny he'd actually go this far, but it's hard to see why not. And though he also disclaims any intent to censor political advocacy as such, he's disturbingly eager to chip away at areas closely related to such advocacy–proposing, for example, much broader government power to punish speech that advocates unlawful conduct. One wonders whether he would start with the First Things symposium.

In these matters, too, conservative reviewers did not exactly unite in a round of general cheers. One of the more devastating treatments came in The American Spectator from Donald Lyons, the Wall Street Journal theater critic and regular contributor to The New Criterion whose writing over the years has displayed an uncompromising cultural conservatism. Lyons started by observing that "an incisive legal mind does not necessarily make for incisive cultural criticism," and got rougher from there. He also nailed Bork on his dodginess about who would get to wield the censorship power. "About concrete remedies he remains evasive, as when he suggests that 'lyrics, motion pictures, television, and printed material are candidates' for censoring. By whom?" The Spectator's letters column exploded in anger, but Lyons stood his ground.

Several reviewers of a traditionalist bent, in outlets like The Wall Street Journal and National Review, found it hard to swallow Bork's alternately dismissive and chilly view of the Declaration of Independence and the various Founders involved in its writing and adoption, as well as of such venerable institutions as judicial review. (The book's least conservative moment comes with a throwaway proposal to allow Congress a right of simple legislative override of Supreme Court decisions.) Even The Weekly Standard couldn't accept what its reviewer, Tod Lindberg, called the book's "one-sidedness" and "relentless morbidity," finding its arguments "not finally persuasive." Lindberg cited a passage in which Bork reflected that the downfall of the Berlin Wall might have been a mixed blessing for former East Germans, since it exposed them to the degradation of Americanized culture.

Artists in Uniform is the title of Max Eastman's brilliant, long-out-of-print account of the left-wing artistic politics of the 1930s, an episode in which an assortment of driven ideological commissars, feeling sure that cultural problems were political at core and that world history hung in the balance of aesthetic and creative debates, demanded that American artists, writers, and critics choose up sides–are you for the health and well-being of the People, or for its enemies? But as recruits soon learned, the price of enlistment was a demand that they check their aesthetic sense, professional integrity, and artistic freedom with the officers in charge at the camp gate.

With Slouching Towards Gomorrah, some of the aspiring headquarters staff of the proposed culture war may have sounded their call to arms, imagining they've found their general on horseback. But it's a free country, and they have no actual powers of conscription. And so all round the edges of the mustering field can already be seen the sight of the intended troops casting aside the proffered uniforms and melting away, back to civilian pursuits.