Tom Tancredo attempts a defense of Robert Bork but ends up authoring one of the most incoherent and contradictory columns imaginable on the subject. It’s a perfect demonstration of what happens when someone is just smart enough to use a bunch of buzzwords but not smart enough to actually understand them. He starts by praising Bork’s theocratic views:
Last week’s Associated Press story on Bork’s death included this brief comment on his 1996 book, “Slouching Toward Gomorrah.” The book was “an acid indictment of what Bork viewed as the crumbling ethics of modern society and the morally bankrupt politics of the left.” What obituaries have failed to note is that the “crumbling ethics” Bork decried are related to the “morally bankrupt politics of the left,” which assassinated his juridical career.
Slouching Toward Gomorrah was little more than a blueprint for theocracy, an extended argument for why the country should base policy on religion and control every decision someone makes if their actions offend the religious sensibilities of the majority. After all, it was Bork who argued that there was no such thing as a right to privacy and that the mere knowledge that someone is doing something they consider to be immoral is legitimate grounds for passing a law that prevents them from doing it. Which is what makes this passage so incoherent:
To Judge Bork, the most basic of all constitutional principles, the most uniquely American constitutional principle – and not coincidentally, one explicitly rejected by Barack Obama early in his career – is the proposition that according to the founders, to Madison and the authors of the Constitution, some areas of life are properly beyond the reach of government. The Constitution recognized freedoms that are not subject to a majority vote by legislative bodies.
What Bork understood was that the whole mission of the political left – the removal all barriers to government redistribution of wealth – depends on the removal of barriers to majority rule. The constitutional principle that there are some areas of life legislatures may not enter no matter how large their majority is anathema to liberals.
No, actually, Bork argued the exact opposite, that there are very few areas of life that legislatures may not enter if the majority demands it. That’s why he famously rejected the idea of unenumerated rights, calling the 9th Amendment a mere “ink blot” on the Constitution. For Bork, if a right was not explicitly listed in the Constitution, the majority could take any action they wished. Never mind that this is precisely the constitutional interpretation that the 9th Amendment was written to prevent.
Judge Bork saw that this decline in judicial restraint reflects a cultural crisis and not simply a dispute among legal theorists. Bork was a troublemaker for cultural elites of the left, right and center because of his insistence that there are two enemies of constitutional realism and constitutional restraint, not one.
Again, totally incoherent. He wants to claim on the one hand that Bork was an opponent of majoritarianism, and on the other hand that he was an advocate of “judicial restraint.” But judicial restraint, as defined by Bork, Scalia and other conservatives, means judges showing enormous deference to the will of the majority as expressed through the legislature. He cannot possibly be an advocate of both of those things.
In reality, Bork was an enthusiastic advocate of majoritarian tyranny and he saw very few constitutional barriers to what the majority could do. If a legislative action did not conflict with an explicitly stated right, that action was automatically acceptable to Bork, even if there was no rational justification for it. And even when a right was explicitly listed, his interpretation was usually so narrow and pinched that the majority could do almost anything it wanted to violate that right. For instance, his interpretation of the free speech clause was so narrow that it would protect only explicitly political speech. Majorities had all the authority they wanted to censor speech that was literary, scientific or poetic, especially if that censorship was done in the name of some vaguely stated morality derived from the Bible.