Robert Bork on Slouching towards Gomorrah

Robert Heron Bork (1927 –2012) was a judge and law professor who was nominated by President Ronald Reagan to the Supreme Court in 1987. Reagan’s motive for nominating Bork was clear-cut. Bork was an originalist (one who is loyal to the original text of the Constitution) and he opposed the Court’s modern tendency to enact laws from the bench, thus usurping the role of Congress. He found absurd the notion that the Court could invent doctrines not embedded in the Constitution, because the role of the Court should be to interpret the Constitution, not enlarge it by fiat. As he remarked at one point, “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.”

Following scurrilous attacks on Bork by Senators Ted Kennedy and Joe Biden, along with opposition from the ACLU, the Senate rejected his nomination by a vote of 58-42. It was clear from the start that Bork was a threat to the achievements of the progressive movement that had dominated the Warren and Burger Courts for a generation. Most of all Bork was feared as a potential leader on the Supreme Court to reverse the ruling on Roe v. Wade based upon the so-called Right to Privacy. The fear and hatred of Bork was palpable in the famous (or rather infamous) diatribe of Ted Kennedy against his nomination. The treatment of Bork was shameful enough that to be so vilified was identified in the Oxford Dictionary by the verb “borked.” No one tells the story of this political hit-job better than Bork himself in his 1990 book The Tempting of America: The Political Seduction of the Law.

As Austin Ruse has noted in First Things, at the time of Bork’s failed nomination he was an atheist. But fourteen years later the marriage to his second wife, a Catholic, had taken its toll. “Robert Bork was baptized into the Catholic faith. Accompanied by his saintly wife Mary Ellen, in a chapel bursting with friends, Bork nearly ran the table of sacraments. He got five that day: baptism, confirmation, first confession, first Communion, and his marriage was regularized according to the Church. All that was missing were last rites and priestly ordination…. With Bork on the court, Roe might have been overturned in 1992. But on the court Bork might not have found God and the Church…. A more pleasant thought: Is it possible that Robert Bork lost the whole world—-the court and all that meant—-but gained his soul?”

The Right of Privacy

There is perhaps no more concise introduction to the judicial philosophy of Bork than the short chapter titled “The Right of Privacy: the Construction of a Constitutional Time Bomb” in his book The Tempting of America. Bork examines the Supreme Court’s 1965 decision in Griswold v. Connecticut which established a right to privacy that protected the sale of contraceptives. But where was any right to privacy indicated in the Constitution? The majority decision, written by Justice Douglas, does not tell us. Rather, he asserts the existence of “penumbras” and “emanations” implicit in the Bill of Rights. But there is also no talk of penumbras or emanations in the Constitution. Bork alleges this is fancy, made-up language designed to cover the vagaries of Douglas’ logic. Both Justice Black and Justice Stewart in their dissenting opinions asserted that no passage in the Constitution makes any reference to the right of privacy. As Bork put it, for Douglas “the creation of a new device for judicial power to remake the Constitution was the point.”

But there was no announced source of authority for, or limit to, the right of privacy. In other words, Douglas was all for creating a right out of thin air. But to what purpose? According to Bork, the newly found right was “nothing more than a warrant judges had created for themselves to do whatever they wished.” To repeat the earlier Bork quotation for emphasis, “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.” What is this if not legal relativism run amok? If privacy is not clearly delineated as privacy to do certain things in private, then what is to prevent any judge from allowing anything to be legal so long as it is done in private? To date, no judge and no court has put a limit on the right of privacy. May we presume, then, that crimes committed in the open will be prosecuted, but those committed in secret will be protected by a right to privacy? There is a logical dilemma here that defies solution.

Those Pesky Philosopher/Kings

Bork argued there was no warrant for the presumption offered by so many liberals, that the Supreme Court should be able to use the Constitution to advance liberal agendas as society grows increasingly liberal. While this is precisely what has happened, it does not follow that it should be happening. Amendments to the Constitution are legitimate if they are advanced by the people as a whole through the normal process of approving an amendment. But new laws advanced by the Supreme Court based on the Court’s interpretation of the Constitution are not even reasonable if only a majority decision of 5-4 of the nine Justices is required. This in theory makes possible one person’s supreme authority over the law of the land. Should only one person be allowed to decide that unborn children may be slaughtered in the womb because the womb is a ‘private place’? Should only one person be allowed to decide that men might marry men and women might marry women because the bedroom is a private place? If monumental issues such as these are to be resolved by only one person rather than by the people as a whole, why do we need a Congress? Why not just settle for Plato’s infamous philosopher/kings? The reason is evident enough: they are not allowed by the Constitution.

According to Bork, as things have developed over time, judges have become beholden to, or prisoners of, their own class: the intellectual elite. This elite has been overcome by the liberal bias of the academic world, which over the past two centuries has gradually given itself over to promoting a progressive anti-religious philosophy, that is contemptuous of and denigrates, many of those values once held sacred and inviolable even by the ruling elite. The mass of citizens do not belong to this elite. Yet this class has, through academia, the media, many church groups, and the courts, decided what the agendas are to be for the mass of citizens.

The intellectual elites (especially those philosophically sympathetic to the leftist agendas of the ACLU) know the mass of citizens do not think the way they do, and so, giving up on legislating their agenda through Congress, they hope to dictate their will through a simple majority vote of the Supreme Court. This alone accounts for the constant fierce struggles to get appointed to that Court nominees who will do their will. It will not go unnoticed by anyone that retired liberal Justice John Paul Stevens, who filled Justice Douglas’ seat when he retired, bothered recently to oppose the appointment of Judge Kavanaugh as unfit to serve on the Supreme Court. Kavanaugh would make the fifth vote needed to prevent further erosion of the Constitution by inventing yet more penumbras and emanations to impose on a supine and passive Congress and citizenry. Kavanaugh’s vote might even be critical in reversing some of those pesky penumbras that are so much a hallmark of Douglas’ legacy.

Moral Relativism and the Constitution

The intellectual elites (with the Supreme Court mightily striving to advance their agendas) constantly prate about their morality of promoting equal rights.

Morally desired ‘equality’ is said to be achieved by imposing artificial standards, such as “proportional representation of the sexes and ethnic groups in the work force,” regardless of merit. At the same time, this moral righteousness seems at odds with other goals of the Left’s agenda. As Bork put it: This same segment of our culture emphatically denies the right of majorities to regulate abortions, homosexual conduct, pornography, or even the use of narcotics in the home. On the one hand, there appears to be a degree of morality so severe that it amounts to moralism, and, on the other, a hostility to morality so strong that it amounts to moral relativism.” There is about all this some hint of the Dr. Jekyll/Mr. Hyde syndrome.

Public moral consensus might as well be damned so far as some elites and the judges on their side are concerned. Moral relativism is all around us, enveloped by the phrase “libertarian freedoms.” Is one man’s moral judgement really as good as another’s. If that were literally so, where would we find the moral glue that binds people together in a peaceful society (defined best by the rule of the majority rather than by the rule of the few). Then Bork makes a solid point that still begs for an answer from the Left. Speaking of the advance of hedonistic freedoms of the Mr. Hyde variety, Bork says: “Almost unlimited personal autonomy in these areas is defended with the shopworn slogan that the individual should be free to do as he sees fit so long as he does no harm to others. The formula is empty. The question is what the community is entitled to define as harm to others. It is difficult to know the origin of the peculiar notion that what the community thinks to be moral harm may not be legislated against…. A change in moral environment – in social attitudes toward sex, marriage, duties toward children, and the like – may surely be felt to be as harmful as the possibility of physical violence or the absence of proportional representation of ethnic groups in the work force. The Court has never explained, nor has anyone else, why what the community feels to be harm may not be counted as one.”

Why Bork was “borked”

Bork maintained that his nomination was torpedoed for one reason most of all: Roe v. Wade. He was nominated to replace the seat of Justice Powell, who had voted for Roe. The paramount fear of the Left was that Bork would undo Powell’s vote at some future date. But of course Roe was simply an umbrella under which the Left of every stripe huddled for protection of its progressive gains through the past generation, especially since the late 1960s when the Left galvanized the young to rebel against traditional values. That same youth, then in college, had become by the time of Bork’s nomination the new class of the Left that was determining public policy through their powerful influence in academia and the media, not to mention their entrance into politics.

The “progressive” Left had over a generation learned to despise capitalism. But its ability to declare war on the thing it hated most was curtailed by the fact that Marxism had failed to bring triumph to the Soviet Union. Socialism was a variant of communism that it could espouse without using the word, yet espousing socialist policies all the while. As Bork points out, “There is really no alternative to a capitalist bourgeois society other than some form of socialism. But socialism is widely, almost universally, recognized to be a practical and intellectual failure, a set of policies so thoroughly discredited that in America no movement with any ambition to achieve power or even influence can afford to embrace it. There are, of course, repackaged varieties of socialism, such as industrial planning, but they quickly lose appeal when they are seen for what they are. The result is that those who dislike this society have only a policy of severe criticism without an alternative program they can articulate.” Bork’s remarks, uttered 28 years ago, seem all too familiar and relevant based on the current American scene.

The attempted character assassination of Bork during the nomination hearings was but a prelude to the even more vicious campaigns the Left would later mount against the Supreme Court nominations of Clarence Thomas and Brett Kavanaugh. Reflecting back on his long membership in the elite class of intellectuals, Bork had this to say: “… the groups of left liberalism came together in an enormous coalition to oppose me. I had been, of course, an academic and a professor of constitutional law for a number of years and a dissident of the left orthodoxy that prevails in the academy. Perhaps the fury is explained partly by the feeling that I was a traitor. If the philosophy of political judging is a heresy in the American system of judging, it is the orthodoxy of the law schools and of the left-liberal culture. I would have done well to remember that in the old days nobody burned infidels, but they did burn heretics.”

Slouching towards Gomorrah

In a book written six years after The Tempting of America, Bork offered some striking reflections on how the Left so completely came to dominate American culture and politics. Slouching toward Gomorrah: Modern Liberalism and American Decline (1996) contains a deeply insightful chapter titled “The Trouble in Religion.”

Bork begins by noting the precipitous decline of religion over the last two centuries. That decline certainly was aided and abetted by the intellectual elites who decided that religion was mere superstititon and science was the wave of the future. Starting with David Hume more than two centuries ago, collective atheism galloped down a racetrack from Charles Darwin to Bertrand Russell. The belief of many was that man’s morals are not appreciably influenced by his religious beliefs, and the history of Western civilization since Christ was proof of that. But, as Bork reflects, if the history of the West was so imperfect since Christ, what might it have been without him? There can be no question, Bork asserts, that as religion has declined in modern times, morality has declined with it.

Those who object to this line of thinking will point to people of morals, but no religion, who manage somehow to pass their morals on to their children. Yes, there is a natural sense of moral obligations even without religious education (Thomas Aquinas called it natural law morality), but the question remains: does religion enhance the moral sense, and does it provide a moral obligation that cannot be dismissed with impunity by those who are tempted to do so? Indeed, to what extent are we living off the moral capital generated by two thousand years of Christianity, and how much longer will it take to use up that capital? Bork concludes: “Thus, something additional must be found that accounts not only for the rising crime rates, but for the more general cultural degeneration …. I find it difficult to imagine what that something else might be, for America, other than the ebbing of religious faith.” It was about the time these words were written that Bork was baptized a Catholic.

For Bork, faith in God’s authority to command has to be the prime foundation of our morals. No philosopher can convincingly dictate what our morals should be because philosophers never seem to agree about what they should be. Hence the rise and dominance of moral relativism and moral anarchy. Even learning the hard way from experience has been shown not to be enough to convince many of how they should behave. Consider the millions of prisoners who, upon their release back into the world, return to their old ways. Nor will psychological counseling be of much avail. Psychologists are notorious for using every principle of healing except the advice to get on one’s knees and beg God’s merciful grace.

Moreover, the intellectual elites, steeped as they are in secular humanism (atheism, agnosticism, indifferentism) will never, either in the media or in academia, support or even talk about the role of religion as the prime source of moral authority and generator of private and public morals. The absence of God, or even the absence of mentioning God in the public square, is very loud testimony that a God-less society is in the making. If it can be said that Satan’s chief objective is to make God’s existence deniable or irrelevant, how could he have been given a better assist than by the collective indifference or transparent hostility in the media and the academy?

How it all came to pass

Bork sees several causes for the general decline of religion over recent centuries. Modern technology has radically increased the number and types of pleasures that used to be unimaginable or off-limits in the Christian era. Hedonism is rampant throughout the West, and if there is anything that gets in the way of immoral or amoral pleasure-seeking, it is religion. Allied with the rise of technology and hedonism was the inevitable influence of Darwin, Marx, and Freud who were the unholy prophets of No-God. Even conceding that recent devlopments in science (especially those pertaining to the Big Bang theory) have truly diminished the legitimacy of the argument that science will effectively displace religion as a methodology for finding truth, the momentum toward irreligion seems undeterred. As Bork puts it: “Refuting the supposed opposition between religion and science will have no noticeable effect in reinvigorating religion…. Many people will go through life with no particular beliefs, and appear untroubled by it. Others have substituted some political movement as their religion – environmentalism, animal rights, feminism, incremental socialism. The churches themselves have turned left.”

Bork then lists the number of Protestant churches and their organizations, national and international, that have promoted strongly anti-America propaganda over recent decades. He is not kind toward mainline Protestantism in his descriptions of their behavior and their willingness to accommodate secularism by adapting (even surrendering) some of their important doctrines. Bork then goes after the Catholic Church. He concedes that the ability of the Church to withstand the hurricane winds of modern liberalism is the true test of whether religion will survive anywhere in the world. If there is a church that claims to be infallible, it cannot change or surrender its doctrines. The ultimate test of Catholicism will depend on whether these doctrines in fact will change. Given statistical studies that show an increasingly liberal wave of sentiment overcoming the Church, Bork sees a distinct unwillingness on the part of both laity and the clergy to contest the culture that challenges them to betray their ancient orthodoxy. “More startling is the silent advance of homosexuality within the American Catholic Church. Official doctrine opposes homosexual acts, and the Pope has stated the unacceptability of homosexual marriage. There are, nevertheless, apparently significant numbers of homosexually active priests, and there is open pro-homosexual sentiment in the church.”

Can we avoid Gomorrah?

As to future prospects, for Bork there is much reason for pessimism and optimism. He sees our understanding of how thoroughly liberalism has corrupted the world as being at the root of much pessimism. But he also sees in many of us a corresponding and heartfelt wisdom and will to reverse course, to whatever extent that is possible, before the ultimate carnage of tyranny and revolution might descend upon us in all their fury. The only reason the much admired spirit of individualism in the West produced such a sea-change in human civilization was that this same individualism was tempered by a spirit of Christian restraint and charity. When that goes, individualism turns into egotism and it is every man for himself. But first, “Much of the general public must be brought back to the virtues we practiced not long ago. Many Americans, after all, have grown up and lived in a powerfully corrupting culture for thirty years.” These words were written when today’s millennials were mere babes in their mothers’ arms. The world they have grown up in is evident in current daily headlines of hedonism, horror, and dirty politics beyond belief.

How did things get so bad? Bork suggests that conservatism tends to retreat as liberalism advances. Conservatism is passive, liberalism is aggressive. The conservative 1950s gave way to the radical 1960s and still gives way because it has a moral compass that restrains it from fighting dirty, whereas liberalism resists any and all checks on its power and tends to overcome them if allowed. Passive conservatism has allowed that since the 60s. Indeed, since Bork’s death, the most ancient of taboos, homosexual marriage, conquered all resistance even at the level of the Supreme Court, supposedly a reservoir of intellect, character, and common sense. Had Bork been on the Supreme Court, his single vote might have reversed the 5-4 triumph over that taboo.

One possibility Bork considered was whether the lunacy of the Left would eventually burn itself out. This likelihood, so far as the forseeable future was concerned, he rightly dismissed. The Left’s politicians today (by their silence and lack of opposition) seem agreeable to the idea that conservative members of Congress should be spit upon, harassed, and publicly humiliated. The Left’s aggressive and virtually sadistic character assassination of conservatives was on recent display during the nomination hearings for Brett Kavanaugh’s appointment to the Supreme Court. The conservative push-back was sufficient to save his nomination, but it can be expected that the next nominee to the Court, which is likely to increase the conservative majority, will suffer the same ordeal, or worse. The recent invasion march of Central American migrants through Mexico ino the United States is evidently supported by the Left. It will be vitally important and interesting to see how the conservative push-back will play out before the November 2018 mid-term elections. There is no real evidence that the Left is burnt out, but there is some reason to believe that the general public has had about enough of the Left’s uncivil conduct that has come to displace intelligent dialogue.

The Final Solution

Is there a final solution to the modern malaise that is preferable to civil war and winner-take-all? Centuries ago, in the time of the Caesars, the West was young, and Christians, distinct majority that they were, moved quietly and stealthily to preserve some sense of virtue and civility in the empire that had done its very best to destroy both. Here is a poignant reflection by Bork: “The best strategy for those of us who detest modern liberalism and all its works may be simply to seek sanctuary, to attempt to create small islands of decency and civility in the midst of a sub-pagan culture. Gated communities and the home-schooling movement are the beginnings of such responses – one an attempt to find safety, the other an effort to keep children out of the corrupting embrace of public school systems run by modern liberals. The creation of enclaves to preserve the virtues that the West so assiduously cultivated, until now, is not a solution to be despised.”

But that strategy, Bork admits, offers no guarantee of being a long-term solution. The slow and relentless spiritual suicide of the West under liberalism seems well underway. The political and religious institutions that fuel the Right seem to have no plan of destruction for the Left comparable to the plan illiberal liberalism has for the Right. This could change; nothing is certain. Our collective moral, spiritual, and political spiral is downward, but there is reason to believe, and more importantly to hope, that every downward spiral must come to an end. As someone has said, there is a surprise around every corner. Or to put it the way Abraham Lincoln did: “You can fool some of the people all of the time, and all of the people some of the time, but you can’t fool all of the people all of the time.”

In that and the abundant mercy of God may be our final solution and salvation.