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.


  1. I believe that Bork’s viewpoint is immoral, and thereby by his logic harms me. Would he condone censorship of his views because I am offended by them? Didn’t think so.

    That view would eliminate personal freedom of any type, and is so absurd, that it is hard to credit that he is serious. But he is. And this is a good example of why the Senate rejected him for the Supreme Court.

  2. Bork supports the losing position in the Griswold v. Connecticut Supreme Court case where he felt states have the right to deny contraception and contraceptive medical information to MARRIED couples.

    LIkewise, Rick Santorum stated his support for states’ rights to deny contraception in a debate earlier this year.

    Thankfully Senate Republicans and Democrats both abandoned Bork’s nomination years ago.
    Romney may think that resurrecting Bork is a way to win over Santorum’s supporters, but Romney is likely to lose more support than he gains in this Faustian bargain. Whatever else it is, limited government it is NOT.

  3. The rehabilitation of Bork should come as no surprise. The political direction of this country has been a steady march to the right by the Republicans, with the Democrats running after them. President Reagan wanted to repeal the New Deal. Now we have people who want to bring back the 1880s, the 1840s, or for the so-called 10thers, the early 1780s, because the Articles of Confederation were such a smashing success.

    Once, the likes of Buckley and Goldwater denounced the John Birch Society as being beyond The Pale. Now, they are mainstream. We now hear from “Christians” who claim it is discrimination when they are not allowed to impose their religion on others. That sounds just like Bork’s reasoning.

    Sadly, the Republican candidates have become captives of the most right-leaning constituencies in their party. For Romney to look to Bork for advice seems normal under these circumstances.

  4. Thanks for the information as I am sharing this information. This Bork and his positions are frightening and I am concerned that Romney would have hired him.

    This is too radical…

  5. Funny. Borkian followers in the GOP dominated Indiana General Assembly tell us that their proposed amendment to Indiana’s constitution banning recognition of anything “substantially similar” to marriage doesn’t apply at all to private employers or private contracts. But the words don’t say that, or say that only governental entities are barred. Maybe they need Bork to come explain why strict construction works when it’s to the right-wing’s advantage, but gets thrown out the window when it doesn’t.

  6. I think that Romney’s choice on Bork was to publicly show the U.S. Supreme Court that he approved of and would support more decisions like the Concepcion decision that says corporations can unilaterally cut off people’s right to band together in class actions against illegal and unfair corporate practices. Class-action lawsuits historically have provided a means to combat things like, illegal payday lending practices, contest poor business practices and confront discriminatory auto lending. But Concepcion has left many consumers without a means to pursue redress and this is right in line with both Bork’s and Romney’s thinking and actions.

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