Tag Archives: libertarian principle

More on Bork

In a recent post, I made the case that Romney’s choice of Robert Bork as his legal/courts advisor should disqualify him from the Presidency.

I subsequently ran across a more in-depth discussion of Bork, borrowing liberally from his own writings.

This extended essay is well worth reading in its entirety, but let me whet your appetite with my “favorite” Bork quote: “No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”

The U.S. Constitution was based upon the Enlightenment belief in personal autonomy; the libertarian principle that humans have the right to pursue their own ends–the right to “do their own thing”–so long as they respect the equal right of others and do not cause harm to the person or property of a non-consenting other.

This is sometimes called “the harm principle,” and it limits the zone of freedom individuals enjoy. If something I am doing harms you, the government is justified in intervening. So, for example, free people can choose to smoke, even though it may be bad for them, but when substantial scientific evidence confirms the harm done to others by passive smoke, government can constitutionally prohibit smoking in public places. People of good will can and do debate whether a particular activity is harmful, of course, but in our system, if your personal behaviors don’t affect anyone else, the government is supposed to butt out.

In Bork’s world, however, simple awareness that someone is doing something of which you disapprove constitutes a harm.

In Bork’s world, if “society” believes that a behavior–contraceptive use, sex between unmarried adults,  homosexual sex, masturbation, smoking, whatever–is immoral, that disapproval constitutes a harm sufficient to justify outlawing that activity.

Freedom, in Bork’s cramped vision of that word, is freedom to do the “right” thing–as defined by Robert Bork and his ilk. It is hard to imagine a more unAmerican understanding of our legal system.

Bork actually makes Jay Sekelow–Pat Robertson’s lawyer, and the other Romney legal advisor–look moderate.