By David Gordon
Ludwig von Mises Institute
Spring 1997


(Slouching Towards Gomorrah: Modern Liberalism and American Decline,
Robert H. Bork, Regan Books/Harper Collins, 1996.)

With ample reason, Robert Bork indicts contemporary American
culture. But he in part misidentifies what is responsible for our
current predicament; and as a result, he grossly misunderstands
classical liberalism. His rejection of classical liberalism leads
him to embrace dangerous doctrine.

Our author considers a number of grave social problems, devoting a
chapter to each: these include pornography, abuses of the welfare
system, "killing for convenience," and the rise of nihilism in many
subjects previously regarded as academic disciplines.

His discussion of abortion seems to me especially insightful. As he
rightly points out, the Supreme Court in Roe v. Wade erred in taking
it to be controversial whether a fetus is a human being. "The
question of whether abortion is the termination of a human life is a
relatively simple one.... It is impossible to draw a line anywhere
after the moment of fertilization and say that before this point the
creature is not human but after this point it is. It has all the
attributes of a human from the beginning, and those attributes were
in the forty-six chromosomes with which it began" (pp. 174 75).

Bork does not argue that this suffices to show that all abortions
are morally wrong. But granted that the fetus is human, may it be
killed "simply for convenience"? Surely it is wrong to do so.
Even in this excellent chapter, however, a weakness is manifest. Our
author is not really at home with philosophical arguments. (He of
course is highly adept at legal reasoning; but mastery of law need
not bring with it skill in philosophy.) As an example, someone who
denies that abortion is murder need not, as Bork thinks, doubt that
the fetus is a human being. He may instead hold that not all human
beings are persons, but only persons have rights. I entirely agree
that this is a dangerous doctrine: in practice it would quickly lead
to self-styled experts deciding who is fit to live.

But whatever the bad consequences of this view, Bork has not shown
that it is false. Bork states: "The characteristics of appearance,
sentience, ability to live without assistance, and being valued by
others cannot be the characteristics that entitle you to sufficient
moral respect to go on living" (p. 177).

But to say this does not suffice: Bork needs to confront the
arguments of those who claim just what he denies. Bork might respond
that he does not need at all to argue for his view: ultimate issues
of morality are not amendable to argument. "[M]orals or
ethics...cannot be reached by reason" (p. 275). If so, why need he
argue for the truth of his contention?

Does this not push the problem back one step? Kant famously thought
that morality can be derived rationally; and among philosophers he
is not alone in this belief. Bork thinks it mistaken: but, once
more, this must be shown and not merely stated.

I do not mean to rule out of court the view that morality consists
of certain ultimate judgments that cannot be further justified.

Quite the contrary, this theory strikes me as very much a live
option. But this is just the point. Intuitionism is a moral theory,
one among several other contenders, that must be defended by argument.

Bork's failure to set forward his arguments rigorously leads to a
crucial error in his approach to constitutional interpretation. He
rightly castigates the Supreme Court for imposing leftist dogmas.
Judges should not enact their own preferences into law but should be
bound by original intent.

Excellent. But what does our author mean by original intent? He
confuses two distinct questions: what did the framers of a law
intend by what they enacted? and what was the end or purpose they
sought by their enactment? No doubt the answer to each question may
prove crucial to help us answer the other; but an example readily
shows that the two questions are not the same.

In Bork's view, the framers of the First Amendment wished to protect
political speech. "In a republic, where the polls are open and
elected representatives make the law, there can be no value in
speech advocating the closing of the polls or nullifying the effects
of laws democratically made" (p. 102). Suppose that Bork is right:

the framers valued political speech of a certain type and for this
reason promulgated the First Amendment.

Does it follow that the First Amendment protects only political
speech of the relevant kind? No, it does not. The framers, we
assume, did not value certain types of speech; but this does not
entail that they excluded the speech they did not value from
protection. One way to protect political speech is to protect all
speech. To show that certain forms of expression do not fall within
the Amendment's scope, Bork needs to show that the framers did not
adopt this strategy. And to show this, once more it is not
sufficient to show that their motive was to protect political speech.

Exactly the same fallacy vitiates Bork's discussion of the Second
Amendment. Although an opponent of gun control, Bork refuses to
regard the issue as a constitutional one. "The Second Amendment was
designed to allow states to defend themselves against a possibly
tyrannical national government. Now that the federal government has
stealth bombers and nuclear weapons, it is hard to imagine what
people would need to keep in the garage to serve that purpose" (p. 166n).

As before, let us suppose Bork is entirely right about why the
framers enacted this amendment. It does not follow that if the aim
they sought can no longer be achieved by allowing individuals to
keep and bear arms, then individuals no longer have those rights. In
a way that should by now be obvious, Bork confuses our two questions.

But let us return from the constitution to contemporary moral
issues. What is responsible, in Bork's view, for much of our current
plight is modern liberalism. And modern liberalism has developed
from classical liberalism. "Liberalism always had the tendency to
become modern liberalism" (p. 8).

But why does Bork think this? In his view, two doctrines underlie
liberalism: individualism and egalitarianism. These doctrines need
not lead to disaster; if a society limits their application by
discipline and restraint, matters will go reasonably well.

"Men were kept from rootless hedonism, which is the end stage of
unconfined individualism, by religion, morality, and law To them I
would add the necessity for hard work, usually physical work, and
the fear of want" (p. 8). Absent these restraints, classical
liberalism degenerates into radical individualism and
egalitarianism, the defining characteristics of modern liberalism.

Bork once more combines insight and error in an odd mixture. His
assault on modern liberalism is on target; but his presentation of
classical liberalism is a caricature. The individualism of the
classical liberals does not stem from the pursuit of
self-gratification, but from a view of the requirements of natural
law. And egalitarianism seems to me not a principle of the classical
doctrine at all.

Our author's misleading view of classical liberalism in part stems
from his taking John Stuart Mill, rather than Locke, as the key
philosopher of the movement. What little he does say about Locke is
mistaken. He did not hold an optimistic view of man, nor did he
believe that man is "inherently self-sufficing" and autonomous,
Robert Nisbet to the contrary notwithstanding. In my view, he is
most plausibly read as a somewhat heterodox Calvinist.

This, admittedly, is controversial; but Bork's principal point fails
even if I am wrong about Locke. Bork himself acknowledges that
modern liberalism "has now turned classical liberalism upside down
with respect to both liberty and equality" (p. 329). If so, why take
the two divergent doctrines as parts of a continuous movement?

And Bork's conflation of classical and modern liberalism is no mere
mistake of theory. Since he rejects individual rights, as the
classical view professes them, nothing stands in the way of a
virulent statism. Thus, censorship is the order of the day. Those
who protested spending public funds on Robert Mapplethorpe's
obscenities have missed the real issue, according to our author. "To
complain about the source of the dollars involved is to cheapen a
moral position" (p. 150).

What could be more ridiculous than people thinking they are entitled
to their own money? "[A]s if taxpayers should never be required to
subsidize things they don't like. If that were the case, government
would have to close down altogether. Both spending and taxation
would be at zero" (p. 150). The omnicompetent state is, for Bork,
not a monster to be dispatched but a tool to be used. Whether the
state is likely to enforce the values he favors is a question he
leaves unexamined.

Our author's statism extends beyond culture. He gives as an example
of a "demonstrably irrational" proposal "reviving the Tenth
Amendment to confine the federal government to the enumerated
powers" (p. 270). Why, this would mean "the end of Social Security
and Medicare" (p. 276). How dreadful!