Slouching Towards Gomorrah:
Modern Liberalism and American Decline
By Robert H. Bork
Regan Books/HarperCollins, 382 pages, $25
Robert H. Bork was certainly one of the most influential scholars of his generation during a 20-year run on the faculty of the Yale Law School. The entire field of antitrust was revolutionized as the U.S. Supreme Court adopted one after another of the once-controversial arguments about the theory and reality of anti-competitive business practices that he collected in his 1978 treatise, “The Antitrust Paradox.” And although he was a judge of the U.S. Court of Appeals for the District of Columbia for only a short time, from 1981 until 1986, Bork was one of the most widely cited judges in America, in the law reviews and by other judges. Almost everything Bork has or is he owes to reasoned debate–to ideas clashing with better ideas on the long march through the law reviews and classrooms and courtrooms of America.
This would be enough, perhaps, to explain the impassioned quality of Bork’s defense of reason and the intellectual norms of Western civilization. But of course as those who read newspapers know, Bork has other, more personal reasons to hate barbarian manners. His 1986 nomination to the Supreme Court was derailed by such manners. An extraordinarily well-orchestrated and lavishly funded multimedia campaign of vilification and hate-mongering managed to transform Bork in the public mind from a gruff and reserved lawyer into a drooling monster. A new verb was added to the vocabulary of political discourse: “to Bork,” meaning, in brief, to mount a campaign of lies too numerous and complicated to refute in the short season of a contested judicial confirmation procedure. The bitter experience of that sad episode in American life must surely have added a surcharge of despair to this fine but imperfect book.
Bork’s argument is that modern liberalism is a cancer that will kill Western culture more surely than the armed assaults of the last century ever had a chance of doing. Bork sees liberalism as an odd combination of radical individualism at the personal level and the idealization of a progressive sclerosis of democracy at the political level. The basic mission of liberalism, he argues, has been to take one after another issue off the political table (where various interest groups debate about various possible outcomes for economic policy, gay rights, the role of women in society, the pornography business, family law, and so on) and redefine these either as personal matters or, in a pinch, as matters that have to be decided not by legislators and other elected officials but by judges–bureaucrats with lawyers’ training whose official currency are the crabbed tools of syllogism and analogy rather than the basic axiomatic and cultural values of the citizenry, which elected officials and the political process supposedly recognize.
Hence, modern liberalism advances a sort of upside-down world in which traditional morality and manners are seen as the byproducts of oppression, families as the enemy of human flourishing, religion as the enemy of our common life, and perversions and self-indulgence as liberation–even as the very institutions, political, religious and cultural, that might help us shake off this funk are enfeebled, downgraded and ridiculed by popular culture at every turn. Readers of the National Review or Commentary will recognize the counts of this indictment, but they will seldom if ever have seen it written up with such literate clarity.
In 1919, William Butler Yeats, in the wake of the Great War, wrote of the “blood-dimmed tide” that he saw everywhere drowning “the ceremony of innocence.” “Things fall apart; the center cannot hold;/ Mere anarchy is loosed upon the world. . . .” “Surely some revelation is at hand,” Yeats prophesied. But what lay in store? “(W)hat rough beast, its hour come round at last,/ Slouches towards Bethlehem to be born?” Unfortunately for the world, the answer was not long in coming: Lenin; Stalin; Hitler; Tojo; Mao; Pol Pot. The rape and slaughter of innocents in their millions and hundreds of millions, for bad reasons or inane reasons or no reasons at all. A furious dementia with different names (“communism,” “National Socialism,” “fascism,” “nationalism”) that drove men mad all over the Old World, that lasted in full bloom for all of 70 years, but that touched North America hardly at all except for the soldiers we sent, and the industrial genius we unleashed, and the political discipline we exhibited, to bring those satanic forces down.
The implicit question of Bork’s book–What rough beast slouches toward Gomorrah to be born?–seems oddly ill-timed given all the hells through which we have recently passed. Can one stand on the Yeats hillock, where he saw the falcon gyring obliviously away from the falconer, and honestly offer a similar prophesy? Surely it is an unforgiving reading of the popular culture that focuses on Snoop Doggy Dog and Madonna and Robert Mapplethorpe, but does not notice The Tick and the Simpsons, John Popper and Darius Rucker, Jeff MacNelly and Gary Larson.
Bork reserves harsh criticism for the Supreme Court because of the role it has played in undermining majoritarian institutions, and it is true that the court has often dabbled in the game that Bork criticizes–for example, by adopting last year as a test under the Equal Protection Clause of the 14th Amendment (“skeptical scrutiny”) the very proposition that was rejected when the Equal Rights Amendment went down, that courts should treat sex classifications in laws as equivalent to racial classifications, to be struck down except in very rare circumstances. Admittedly, to a fussy temperament like Bork’s this sort of thing is annoying. But even if multiplied into many instances (as it could be), such liberal activism is basically small potatoes in the larger scheme of things. In many if not most of the cases whose results Bork would denounce as illegitimate, the court did little more than recognize rights that the political process would have soon delivered in any case, or, as in the case of the “right” to an abortion, that the political process had already substantially delivered.
In regard to matters of larger import, the court has been far more circumspect than Bork allows. For example, in the early 1970s, the court came within a few votes of holding that the Equal Protection principle should apply to the review of economic and public-welfare legislation. The syllogism of which equality is the major premise would be brought to bear on the distributional consequences of any statute or administrative regulation. This principle had enormous intellectual support in the law schools at that time, but somehow the Supreme Court found the wisdom to resist embracing it. Another example from the same time: the claim that when a legislature or administrative agency declines to act on some demand–to pass a law or promulgate an administrative regulation–that non-action should be treated by courts as a sort of state action and subjected to judicial review. The court declined this invitation as well.
Had these intellectual fashions been embraced by the Supreme Court, the judicial branch would have taken effective control of the entire apparatus of democratic decision-making, from agenda-setting to budgeting. And what is at least as sinister, this new dispensation of government would have been wielded, under the Equal Protection principle, as tantamount to a constitutional mandate for socialism in every deed and venture of state or federal government. That is not small potatoes but a nightmare. It could have happened but it didn’t. The institutions of democracy, which do sometimes pitch and yaw in the wake of small fashions as they motor by, have usually proved quite strong enough to keep their composure when genuine tsunamis of radical change are involved. A more balanced treatment of the subject would in this case have been a more nearly accurate one as well.
But this sort of criticism fails to engage Bork at the level where he most needs to be challenged. Bork is not like many of his fellow conservatives, who believe that the antidote for bad policy is good policy. Would that the world were so simple that the policy blunders of liberals (for example, racial entitlements, alias “affirmative action”) could be cured by a bracing dose of conservative medicine. In the end, as Bork recognizes gloomily, the cultural and political damage that modern liberalism has done to America may not be remediable, but irredeemable and beyond prescription. Indeed, this book may be the most powerful case for that proposition that has been put forward, and in his last chapter (“Can America Avoid Gomorrah?”), Bork halfheartedly begins to set forth what we might do to get back on the path of righteousness, only to end up by arguing that to be optimistic on this score would be foolish.
And so the book ends. But wait! That is no way to end a book, as though Gomorrah were the end of history! It is as though “Casablanca” had ended with Rick running off with Ilsa and Maj. Strasser not being shot. Supposing that Bork credits his own arguments, he owes us some sort of effort to trace out the implications for the future of American legal and social institutions. Surely it cannot be that the most religious of all industrial nations can be governed indefinitely by an anti-religious secularism. Surely it cannot be that the most capitalistic of all industrial nations will not find a way to package and offer for sale communities where physical security, respect for elders, love of learning and the absence of pornography are guaranteed or double your money back. Surely it cannot be that the heroic America that saved the world from the rough beast in his bloodiest hour must abide in Gomorrah until the end of time.
