One of William F. Buckley’s many assets as a proselytizer of conservative ideas has been a sunny good nature, shining through his harshest assessments of the American political scene. Conservative thinkers are pessimistic almost by definition, easier to digest when offered with a touch of good cheer. However, Buckley’s American allies, especially those like Robert Bork, less concerned with economics than with social and cultural issues, have sounded particularly bleak lately. Their general refrain is that children are now taught little of value in public schools, that universities, while giving effective instruction in the natural sciences and a few other disciplines, are otherwise surrendering to postmodern idiocy, and that popular culture has never been so vulgar, obscene and vacuous.
Cultural conservatives glumly contemplate a society giving little enduring support to personal responsibility, fidelity, loyalty and tradition. Furthermore, virtues once more commonly identified as liberal-independent judgment and respect for rational argument do not appear to be the gainers. A growing public infantilism instead celebrates all the vices of adolescence: self-absorption, inflated grievance, frivolity and lust. The incomplete and possibly temporary triumph of free-market economics is scant compensation. Like the Duke of Wellington contemplating the aftermath of a bloodier struggle, modern conservatives have been finding that the only thing as depressing as a battle lost has been a battle won.
Robert Bork expounded this gloomy wisdom a few years ago in Slouching Toward Gomorrah: Liberalism and American Decline (HarperCollins, 1997). He returns to it in Coercing Virtue, an expanded version of this year’s Frum Lecture, an endowed series created by Barbara Frum’s family to commemorate the popular CBC broadcaster after her early death from cancer in 1992. Expanded versions of the lectures are issued simultaneously as Vintage Paperbacks. These books have varied considerably in both immediate impact and lasting importance. Some lecturers have seemed a great deal more comfortable than others in giving highly compressed reflections on broad topics. John Keegan, for example, author of many fine military histories, produced an oddly disjointed historiographic essay on the Second World War, too allusive and elliptic for undergraduates, a bit commonplace for other historians. On the other hand, Ron Chernow, a biographer of bankers and tycoons, elegantly summarized a century of financial history, a less cluttered battlefield. Though on a very different theme, Robert Bork’s book is like Chernow’s, the separate essays neatly tailored and smoothly integrated into a coherent whole. There is a good bibliography, but no index, an irritating omission for a book of this kind.
Bork remains most widely recognized as the Republican nominee for the U.S. Supreme Court proposed by President Reagan but rejected by Congressional Democrats. However, he has also served as a Yale law professor, as a judge on the U.S. Circuit Court of Appeals and as SolicitorGeneral in the Nixon Cabinet. He is now a Fellow of the American Enterprise Institute. In Coercing Virtue he is as glum as in his earlier book. However, in this case he has chosen a theme that is of increasing international interest: the remarkably rapid worldwide advance of judicial activism, almost invariably in the service of the fashionable liberalism he so detests. Coercing Virtue rehearses what by now is a well-known canon of complaint. But it also highlights some problems in the kind of conservative thought he presents as an alternative.
By judicial activism, Bork means the proliferation of decisions, especially from the highest courts in several countries, that are either replacing the purposes and laws of elected legislatures or, for that matter, are making more and more claims to control private matters that once required no statutes or regulations from either judges or politicians. Although Bork opposes this activism in the name both of the “original intent” doctrine of constitutional interpretation and of political democracy, which he summarizes as “a rule of law rather than a rule of lawyers,” he does not restrict his discussion to the decisions themselves. He also identifies those lawyers and judges who have lobbied for such decisions as members of the “New Class,” who invent interpretations based on the ideology of that class, and serve its interests.
Reading Bork makes it easy to understand why he had established an impressive reputation at Yale and as a judge in the years before he was barred from the highest judicial office. He draws on a broad selection of empirical examples of expansionary judicial decisions in the four geographic regions he has chosen to examine”” the U.S., Canada, Europe and Israel”” and his demolitions of their rationales are lucid, logical and sensible. What Bork has to say about the hubris and outright zaniness of many contemporary judges will mostly draw warm assent from conservatives in all of the countries he examines. But even American liberals have been showing signs of alarm at the behaviour of their courts in recent years, as evidenced by the enthusiastic reception they gave a few years ago to Philip Howard’s The Death of Common Sense (Warner, 1994), which presented somewhat similar arguments. In this country, Rainer Knopff and F. L. Morton, who are not liberals, trod the same territory in The Charter Revolution and the Court Party (Broadview Press, 2000).
Bork’s non-American examples are his most interesting ones. He provides an international context to Canadian judgments since the introduction of the 1982 Charter of Rights and Freedoms, in some cases, like the concept of mootness, finding our procedures even worse than American:
If a controversy becomes academic, in the pejorative sense of that term”” because the parties settled their differences, the situation changed so that the complaining party had nothing left to complain about, or the plaintiff died, effectively removing his interest in the outcome of a dispute”” a court, acting as an ajudicator of real disputes, would ordinarily declare the matter moot and dismiss the case. Not so the Canadian Court, which rules in cases where the plaintiff no longer has a personal stake. It is difficult to explain this process on any hypothesis other than that the Court is more interested in governing the society than doing justice to identifiable litigants (74).
Bork’s study appeared before the recent decision by an Ontario judge that a private Catholic high school could not prohibit a gay adolescent from bringing his consort to the prom. Church authorities, under simultaneous attack for having shown insufficient concern about active homosexuality in the priesthood, must be wondering which way they are now supposed to jump.
Bork’s most fascinating essay is on Israel, and its chief Supreme Court Justice, Aharon Barak. Despite the constraints which might be expected from its military and political situation, Israel emerges as the most startling and extreme demonstration of judicial activism, to a level that creates considerable practical difficulties for any government the Knesset can put together. For example, Bork describes how the Supreme Court, in a ruling in 2000, known as the Katzir decision after the community involved,
…held that the government could not refuse Arab citizens of Israel the right to establish residence in Katzir, which was situated along with seven other communities to create a buffer zone against areas with large Arab populations. The admission of Arabs, citizens of Israel or not, to such communities would endanger and perhaps defeat the defensive purpose of the buffer zone policy. Barak wrote the opinion holding that use of the criteria of nationality or religion was discrimination, and therefore, a violation of the principle of equality. The disingenuity of the reasoning need not detain us. The important point is that, once again, universalistic principles were deployed to harm Israel’s security, without adequately weighting Israel’s particular circumstance and needs (129).
Bork is not so successful, however, at making the case that judicial activism is an essentially “liberal” phenomenon. His own brief history of its U.S. variants naturally starts with the most notable expansion of power in American judicial history, Chief Justice John Marshall’s ruling in Marbury v. Madison, which succeeded in permanently establishing the very concept of judicial review of legislation. Bork is sharply and cogently critical of this decision, and even more so of the antebellum Taney Court’s proslavery Dred Scott decision. However, whatever else may be said of Marshall and Taney, they can hardly be described as liberals, even by the standards of 1803 or 1857. Bork also skewers several other jurists who are better examples of his general thesis””Oliver Wendell Holmes being the most notable. But not only does the activism of the past sometimes have other sources than liberalism, the liberalism of the past did not seem to produce the widespread assault on all existing social institutions that Bork observes today.
If Bork had stayed within the narrow purpose of defending “original intent” as the only proper way to interpret constitutions, or of attacking activism, as he sometimes does, purely as a kind of legal egomania, a judicial “disease,” as he calls it, these inconsistencies could be reasonably attributed to the vicissitudes of history. But his analyses of the expansion of courtmade law in different countries for about the last half-century are also accompanied by a separate explanation of their common cause: the machinations of what he, and several other conservative writers, identify as “the New Class,” whose characteristics he summarizes as follows:
A partial list would include a passion for a greater, though unspecified, degree of equality; a search for universal principles; radical autonomy for the individual, but only in a hierarchical and bourgeois culture; … radical feminism; and a rationalism that despises tradition and religion and supposes that man and society can be made anew by rational reflection … To these qualities might be added a softness of spirit, a desire to ensure that no one, other than intellectual enemies, suffer the least degree of discomfort … The question of why most judges impose New Class attitudes is simply answered. These attitudes are congenial to them … and seem self-evident … [The] prestige of a judge depends on being thought and spoken well of in universities, law schools, and media, all bastions of the New Class (9-14.) Historians and cultural critics like Roger Kimball and Gertrude Himmelfarb have given similar summaries, and Bork quotes both of them with approval. Attacks on the New Class, which are standard fare in journals like Commentary and The Public Interest, often appeal to conservative thinkers from Aristotle through to Burke. However, their use of “class” suggests some hangover Marxist influence, and the New Class itself is a conception largely based on American developments since the 1960s, both in politics and culture. Cultural critics like Bork are more historically minded than their liberal opponents, but not that much.
For the three decades of Cold War that followed 1945, the dominant political and economic assumptions in all the Western democracies were those of liberalism and social democracy. This universal reign had several causes. Both political leaders and the mass public still had painful memories of the world depression of the 1930s, which had been widely regarded as a near-total collapse of free-enterprise economies, so that avoiding a repetition of this economic debacle was the most urgent imperative of government. Moreover, Communism’s claim to provide justice and equality, however fraudulent it may appear in retrospect, was generally thought to require some kind of popular alternative. Although both intellectuals and industrial workers had been largely disillusioned by full-fledged MarxismLeninism, there had as yet been no comparable disillusionment with socialist policies introduced by democratic means. Even the British and Canadian Conservative Parties and the American Republicans were led throughout those years by men who shared with their opponents the belief that society had moved into a new and irreversibly collectivist age. In the universities and review journals, the fiercest debates were mostly between the anti-communist left and those of the pas-d’ennemis-à-gauche school.
Something very different began to happen in the last quarter of the century, however. The upsurge of highly visible radicalism in 1965-75, a consequence of baby boom demographics, television journalism, and the disastrous American war in Vietnam, faded with startling speed once the Americans managed their messy extrication from Saigon. As a political force, the “New Left” soon was seen to have been more death rattle than birth cry.
As early as the late 1970s, Buckley’s National Review, once a voice crying in the wilderness, began to rival heretofore far more influential journals like The Nation and The New Republic, eventually moving from New York to Washington and establishing a higher circulation than those two progressive bastions combined. Buckley, a lifelong conservative, had initially depended on a stable of disillusioned ex-Marxists to provide most of his articles, but by the later 1970s he was finding that more and more of his opinions were shared by disillusioned Cold War liberals, like Irving Kristol and Norman Podhoretz.
This “neo-conservative” ascendancy among former liberals and radicals in the United States was matched by a similar one in England, where writers like Kingsley Amis, Paul Johnson and Hugh Thomas were becoming anti-statist defenders of free markets and hardline opponents of Marxism. By the 1980s, Margaret Thatcher and Ronald Reagan, both strong defenders of the new outlook, had won resounding electoral victories in the United Kingdom and the United States.
Bliss was it in that dawn to be alive, but to be middle-aged was especially pleasant. In the 1950s, when Clinton Rossiter, a Cornell political scientist, had published Conservatism in America, he had subtitled it, “The Thankless Persuasion.” His 1981 second edition dropped the pessimistic subtitle. However, he and other conservatives missed the different threat contained in a book from Britain that had appeared shortly after Rossiter’s first edition, Antony Crosland’s The Future of Socialism (1959), a portent of things to come, even into the 21st century. Crosland, an economist and future Labour Cabinet Minister, enraged many of his more dogmatic colleagues with this book, but he was the true prophet of Tony Blair’s rebranded “Cool Britannia.” He was the first influential figure in his party to recognize openly that socialism was not just an economic failure, but had not even been much of a success in increasing social equality. He presciently argued that in future a successful liberal and radical politics would have to turn to the transformation of cultural institutions, to public education and to governmental regulation of the environment.
Members of the left in other countries may not have read Crosland, but they were largely coming around to the same notions, many of them influenced by Antonio Gramsci, the subtle Sardinian Marxist whose imprisonment by Mussolini did not prevent him from developing an innovative version of Marxism that doubtless would have got him shot in the Soviet Union of his time. Gramsci argued that the commanding heights of the capitalist system which had to be conquered were not simply those of “ownership of the means of production” but of a “cultural hegemony” which had to be undermined and subverted.
The cultural revolution of 19752000 has more causes than the theories Crosland, Gramsci and their disciples, but both did a great deal to get the giant snowball rolling, and it has turned into an avalanche. Supreme Court decisions undoubtedly played a very important part in changing the social landscape. For example, what began as the removal of prohibitions on sexually explicit but gifted writers like D. H. Lawrence and Henry Miller turned very rapidly into legal toleration of pornography of the most debased kind, although it is difficult to determine whether judges really brought about this change or merely accelerated a process coming about for other reasons. In any event, the catalogue of social pathologies that Bork attributes to a radically hedonistic individualism is not entirely different from the one provided by radical critics like Christopher Lasch and Neil Postman.
N ot unlike the lawyers he attacks, Bork is more effective at presenting a powerful brief than in providing a clear account of the identity and motives of either those he attacks or those he claims to defend. The term “the New Class” was actually invented half a century ago by the dissident Yugoslavian Marxist, Milovan Djilas, to label the privileged elite of Communist Party functionaries who ran the Soviet Union and its satellite states in Eastern Europe. Its adoption and adaptation by American neo-conservative journalists came about a decade later, but it has never had as exact a definition in democratic states. As conceived in the Marxist-tinctured polemics of 20 years ago, the American New Class was imagined as a specific group of people, holding powerful offices in academia, the media and government, that nevertheless was a minority, perhaps even quite a small one, of the American people overall, who were assumed to be innocently indifferent or actively hostile to what this sinister crew was seeking to bring about.
In its more recent use, including by Bork, the New Class seems less an identifiable group of people than a current of ideas. But in this form, it becomes circular: fashionable and destructive liberalism is brought about by the New Class; the New Class is composed of those who bring about fashionable and destructive liberalism. A further difficulty is that the conservative intellectuals who attack the liberal iconoclasts increasingly come from the same classrooms, courtrooms and editorial offices as their targets. They are also frequently older men and women attacking notions they themselves held in their youth. That does not mean that their lamentations are without cause, but it does suggest that a “class analysis” is not persuasive.
Bork still seems confident that both the legal decisions he discusses and their underlying philosophical rationale would be rejected by the broader American public if they had effective democratic means of doing so. This is very likely true of, say, Texas or Alberta, but it is by no means certain that the same would apply to the U.S. or Canada overall. Bill Clinton is the incarnation of everything Bork means by the New Class, and while his 1992 and 1996 electoral victories may have other explanations, both the popularity he maintained in the face of personal scandal and foreign policy misadventures and the size of the total vote for his political successors, Al Gore and Ralph Nader, would appear to imply that half or more of the American people are now fully in the embrace of the New Class. The Canadian electoral failure of the socially conservative Preston Manning and Stockwell Day might be taken as showing the same thing about this country.
Both Canada and the United States continue to show an enduring conflict between a big-city liberalism and a regional conservatism. However, Bork, in the passage defining the New Class cited earlier, slips rather quickly past any sociological explanation of the ideological struggle: “It is not entirely clear whether [a New Class softness of spirit] is an aspect of the socialist impulse or whether it is merely the inevitable attitude prevalent in an affluent, technologically advanced society in which comfort and convenience have become the primary goods” (10). Though Bork is not much given to understatement, “not entirely clear” certainly qualifies as such.
Public opinion polls and election results suggest that something other than egoistic nihilism may be at work here. For one thing, such soundings consistently demonstrate a characteristic of all modern democracies, one which should give heart to neither Left nor Right. A rather substantial proportion of the general public, foolish or wise, has no idea what even fairly simple ideological and political arguments are all about. At the height of the Cold War four decades ago, poll results indicated that something like a third of Americans thought the USSR belonged to NATO. They were similarly unaware that mainland China was a Communist state. A poll this year not only showed that almost four-fifths of Americans were not aware that Canada was their main trading partner, but that almost a third thought it was already part of the U.S.
Beyond general ignorance, experience suggests that, even in the universities, TV newsrooms and government offices, a substantial proportion of people are neither committed devotees of all the values associated with the New Class nor firmly resisting traditionalists, but an inconsistent mixture of both, bowing to the most ridiculous current pieties in all public forums while rejecting and even ridiculing them in private. As if this were not bad enough, private opinions are more and more circumscribed, and the pieties get worse and worse. As Bork notes, the Boy Scouts have escaped mandatory gay scoutmasters by the narrowest of Supreme Court majorities, overturning a New Jersey Supreme Court decision. But the limited public reaction to the latter decision and others like it seems to be happening less because of a fundamental change in character than because the technological expansion of the public world is turning millions of invisibly private doubters into a public mob of political correctness enforcers.
A genuinely sturdy and widely shared traditionalism in outlook, indifferent to trendiness and unafraid of public affirmation, cannot be conjured into life by thinkers who are part of the very feverish urban world they deplore. Traditions had their strongest past foundations in traditional ways of life and work in places like farming communities and the professional military. Conservatives, at least the most reactionary ones, may deplore the vanishing of such ways, but this does not mean they have any idea how to replace them.
Other than war, nothing obliterates familiar landmarks so much as the revolutionary science and technology of a competitive free-market society. The aristocratic and agrarian conservatism of Europe was once quite anticapitalist, even friendly to socialism. A similar view was once defended in Canada by Robertson Davies and George Grant. The failure of all forms of statist economics demolished this nostalgic yearning as a serious political force, but writers like Grant still showed an understanding of cultural considerations to which Americans like Bork, libertarian defenders of free markets, seem utterly oblivious.
Ironically enough, the libertarians have lately been deserted by a once Reagan-admiring Republican President. George W. Bush’s “compassionate conservatism” was at least an effective electoral strategy, and his response to his narrow victory over the Democrats and a new threat from Islamic terrorism seems to be a new willingness to embrace economic protectionism””an apostasy from the party line that seems more a narrowly pragmatic adaptation to immediate political pressures than a philosophical conversion to the “big government conservatism” advocated a couple of years ago by William Kristol.
The paternalistic noblesse oblige that once dominated the British Conservative Party is dead or dying, and the same is also true of Canadian red toryism. But the consequences provide an unsettling lesson for pro-capitalist American conservatives. As the political parties of fashion adopt freemarket doctrines, conservatives have lost their main source of mass appeal as an alternative. The principled defence of the claims of the private and increasingly unfashionable individual in a democracy may now be permanently confined to writers of literature, philosophy, history, and serious journalism. The greater democratic power of liberalism, New Class or not, is not today as a coherent body of ideas, updating John Stuart Mill, but as an evolving set of hypocrisies that serve as a unifying blanket for otherwise unrelated lobbies and interest groups brought together by democratic politicians.
The very clarity and realism of conservative thought are liabilities in the making of broad coalitions for electoral purposes. Its greatest contribution to public life, both in the past and in the future, is in defending moral and cultural standards, bearing honest witness, calling in the lessons of history, and exposing and limiting the follies of the age, however labelled. Robert Bork, who has been both an influential judge and a holder of high political office, understandably yearns for something more, but is implicitly settling for the role of Cassandra. Coercing Virtue deserves to be widely read and pondered, above all for its central message: “When other forces lose their cohesive powers, it is inevitable that people will look to law as the last remaining universal bearer of values and the source of justice. This outcome may put more weight on law than it can bear” (19).
