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Tancredo’s Bizarre Defense of Bork

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.

Comments

  1. Janine: Hallucinating Liar says

    Tom Tancredo, the man who lamented the lack of a literacy test at the voting booth.

  2. tbp1 says

    Of course, any defense of Bork is definitionally “bizarre,” so the headline is a tad redundant…

  3. says

    The constitutional principle that there are some areas of life legislatures may not enter no matter how large their majority is anathema to liberals.

    Ah, so Prop 8 was wrong, Tom? Naw, I didn’t think so.

  4. says

    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.

    Putting aside the fact that this describes precisely zero liberals that I have met, I’m wondering if Bork ever actually tried to argue that the Constitution puts limits on things like, you know, wealth redistribution. That would be totally inconsistent with the rest of his Constitutional interpretation (though consistent with the conservative belief of empowering the powerful). There is clearly no enumerated right saying that the government can’t tax you at whatever rate it wants and then spend the money however it wants. The Constitution gives Congress open-ended taxing and spending power.

  5. StevoR, fallible human being says

    … his 1996 book, “Slouching Toward Gomorrah.” …

    Was there ever a sequel or parody version of that titled Bending towards Sodom? If not there should be!

  6. Rodney Nelson says

    In the Federalist Papers #84, Alexander Hamilton argued against a Bill of Rights saying that some people would interpret any enumerated rights as being the only rights held by the people. There was a lively debate between Samuel Adams and James Monroe on this very issue. As a result, the Ninth Amendment was specifically written to say there are other rights besides those given in the Constitution.

  7. dingojack says

    “….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 like women’s reproductive systems and people’s bedrooms you mean Tom? Oh I’m sure ol’ ‘no such thing as privacy’ Bork was against government invasion into them, right?

    Dingo

  8. gratch says

    To the Far Right the dead are just like god. They hold all the same opinions and politics as the speaker. And inconvenient facts about what they actually believed are just as easily ignored.

  9. says

    While nearly everyone says that Bork used the “ink blot” phrase in regards to the 9th Amendment, in The Tempting of America he applies it to the 14th.

    A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past decipering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it. So it has been with the clause of the fourteenth amendment prohibiting any state from denying citizens the privileges and immunities of citizens of the United States. That clause has been a mystery since its adoption and in consequence has, quite properly, remained a dead letter.

    (By the way, if a provision is written in Sanskrit you’d think a judge would be smart enough to get a translator!)

    Did Bork start applying the “ink blot” language to the 9th, and then switch to the 14th for this book? I have no idea.

  10. dingojack says

    ‘That clause’ of the fourteenth amendment seems pretty straightforward to me* – I mean clearly even ol’ Bork can decipher it (despite what he says) if he can describe it.
    Dingo
    ——-
    * Meh – whadda I know. I’m not Bork, or better still, knowledgeable about US Constitutional Law

  11. says

    I asked, “Did Bork start applying the “ink blot” language to the 9th, and then switch to the 14th for this book? I have no idea.”

    The answer is yes (I find after researching it). Bork first used his “ink blot” language testifying before the Senate Judiciary Committee, responding to questions from Senator DeConcini (on Sept. 16, 1987). He said

    I do not think you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.

    So, for some reason, when he wrote his book, Bork switched his ink blot from the 9th to the 14th.

  12. pacal says

    Ahcuah quotes Bork saying:

    “A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past decipering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it. So it has been with the clause of the fourteenth amendment prohibiting any state from denying citizens the privileges and immunities of citizens of the United States. That clause has been a mystery since its adoption and in consequence has, quite properly, remained a dead letter.”

    Bork is of course lying the 14th amendment is not and has not been for quite some time a “dead letter”. What is of course obvious is that Bork wishes it to be a “dead letter”. And of course it is clear that the Courts interpretations of the 14th amendment over time are also important. I am frankly amazed; it is of course easy to find out what the drafters of the 14th amendment thought they were doing. The only mystery is Bork’s idiocy in this matter.

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