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Robert Bork: An American lion in winter

Judge Robert Bork will be remembered as a towering intellect and celebrated legal scholar who was unfairly denied a seat on the U.S. Supreme Court. But Bork’s accomplishments and his significance extend far beyond his 1987 martyrdom in the hallowed chambers of the U.S. Senate.

Robert Bork was more than a scholar and jurist; he was also a culture warrior of the first rank.

Bork was an early critic and chronicler of our nation’s cultural decline – what he accurately described not as cultural change, and not as cultural “evolution,” but as cultural suicide. And that long winter of cultural self-doubt and self-hate is still awaiting a springtime.

Any libertarian or conservative who appreciates Bork’s accomplishments as a student of American law and constitutional jurisprudence should study his insights on our cultural decline as well. Those insights are unsettling, not only for liberals but for all of us, left, right and center, because we have all been too complacent about the acids of cultural dissolution.

Ronald Reagan nominated Robert Bork to the Supreme Court in 1987, and it was Bork’s misfortune that Democrats had retaken the Senate majority in the 1986 elections – only two years after the Reagan sweep of 49 states in 1984. There is a lesson here that the Republican Party and conservative leaders have been slow to learn: Political majorities amidst cultural collapse will be temporary and their mandate impotent.

The unprecedented personal attacks on Bork’s nomination were a foretaste of what was to become the “new normal” of American politics and the new ethical standard for American liberalism: When you are in the majority, don’t let constitutional principles stand in your way.

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.

Early in Judge Bork’s career, his legal scholarship explored the legitimate basis for the Supreme Court’s power of judicial review, which is the power to declare acts of Congress (and acts of state legislatures) unconstitutional. Unlike some conservatives, Bork did not deny that the Supreme Court had such legitimate power. But to Bork, that power is exercised legitimately only when it upholds constitutional principles, not when it undermines them.

What does all this have to do with left versus right in American politics? 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.

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.

For Judge Bork, the two corrosive agents of traditional morality are radical egalitarianism and radical individualism. Both are expressions of cultural relativism, and both undermine the cultural foundations of personal freedom. Conservatives of libertarian persuasion recognize radical egalitarianism as an enemy of constitutional liberty, but Judge Bork asks them to examine the deeply corrosive effects of radical individualism as well. If we want to honor Judge Bork’s legacy, we should honor all of that legacy.

Judge Bork understood the deep and dark currents of cultural relativism and warned of their devastating impact on our political system. While he became increasingly pessimistic about our chances of reversing these trends, he did not buy into historical inevitability. Bork believed we have a choice, and he never surrendered to fatalism.

We honor his noble legacy best by picking up the baton and carrying it forward. When all is said and done, history is what we make it, it does not make us.