Bork, the Straussians, and our Enlightenment Founding:

(Originally posted on Freespace)

Bork’s constitutionalism is strikingly similar to that of many of the followers of Leo Strauss. (This includes just about all prominent thinkers who studied under Strauss, save Harry Jaffa. The non-Jaffaite Straussians are collectively known as the East Coast Straussians. Jaffa and his followers are sometimes referred to as the West Coast Straussians). Bork, in many of his works, has often cited men like Irving Kristol, Allan Bloom, and Walter Berns. (He has heavily relied on Kristol’s arguments.) These men, like Bork, reject the Declaration. I think it’s fair to say that Bork has been significantly influenced by this crowd of thinkers.

(If you want an example of a parallel between Bork and a Straussian, see Walter Berns’s, “Government by Lawyers & Judges,” Commentary, June 1987, p. 17. Berns posits a version of “strict constructionism” that is virtually identical to Bork’s.)

Why do I bring this up? It’s well known to anyone who has carefully studied the writings of the Straussians that they believe that the American Founding itself—the original principles of Enlightenment liberalism that this nation was founded on—those enunciated in the Declaration of Independence—are the cause of what they see as the modern decay of society. In short, these principles are the natural rights of liberty and equality, wholly ascertainable by Man’s Reason, unaided by Biblical Revelation. One of these rights is liberty of conscience, which can only be secured by a state that, in James Madison’s words, enacts “a perfect separation between ecclesiastical and civil matters,” thus demanding a separation of Church and State.

Here is Thomas West describing Allan Bloom’s thoughts on America: “America was founded on modern principles of liberty and equality that we got from Hobbes and Locke. Liberty turned out to mean freedom from all self-restraint, and equality turned out to mean the destruction of all differences of rank and even of nature.”

This could have been taken verbatim from chapters 3 & 4 of Slouching Towards Gomorrah. (Indeed, West notes that Bork had made a very similar argument to Bloom’s back in 1984 in Tradition and Morality in American Constitutional Law.) In Slouching, Bork labels Jefferson as “a man of the Enlightenment” and the Declaration as “an Enlightenment document,” and uses this as grounds for rejecting the Declaration. He goes on to say that “Liberalism does not vary; it is always the twin thrust of liberty and equality, and these never change.” pp. 57-58. And that the classical liberalism of the founding has transmogrified into the modern liberalism of today. “Liberty” has come to mean “radical individualism,” “equality,” “radical egalitarianism.”

Bork spends a great deal of time telling us what is wrong with Enlightenment liberalism, and the Declaration, how these principles are “hardly useful, indeed may be pernicious, if taken, as they commonly are, as a guide to action, governmental or private.” But this begs the question: Are these original principles? He lets the cat out of the bag: “Equality and liberty are of course, what America said it was about from the beginning.” p. 56. He further notes that the sixties (which he LOATHES) represented, in some respect, “an expansion of certain American (and Western) ideals…” and that this “deserves to be stressed because if modern developments are in the American grain, if they grow from our roots, as there is reason to believe they do, they will be much harder to reverse than it is comfortable to think.” Id.

So there you have it: This seems to be a clear admission that Bork (like the East Coast Straussians) is against the principles of the American founding. That his (their) position is in reality, anti-originalist.

I tend to agree with these thinkers that what they call radical individualism—(for instance what we saw in the recently decided Lawrence v. Texas case) is consistent with, indeed demanded by, our founding principles of the rights of liberty and to pursue happiness. I just don’t see it as a bad thing, as they do.

But what about radical egalitarianism? Not the classical view of equality, but the post-Marxist version of it that posits “equality of condition,” that everyone should get an equal slice of the pie. Did classical equality turn into this? Bork notes that although the Framers might not have had this theory in mind, the passion that our nation had for equality demanded that the meaning be expanded beyond its original conception. Bloom puts it this way: “More serious for us are the arguments of the revolutionaries who accepted our principles of freedom and equality. Many believed we had not thought through these cherished ideals. Can equality really only mean equal opportunity for unequal talents to acquire private property?” The Closing of the American Mind, p. 161.

The problem with accepting the modern version of equality is that it directly contradicts classical principles of both liberty and property. Indeed, to accept the modern version of equality, one must throw out Locke’s theory of property, which the Founders clearly thought to be a vital natural right. No true originalist can do this. Bloom notes that the “modern” notion of equality has old roots too. It was evident in Rousseau’s critique of Locke, and goes back even further to Ancient Greece: “Can private property and equality sit so easily together when even Plato required communism among equals?” Id.

To answer Bloom, in a word, yes. Classical liberalism (in its present form called libertarianism) posits a perfectly consistent set of rights of liberty, equality, and property, that are in line with our Founding. Modern liberalism sets equality and liberty up against one another and wants to practically throw out property entirely. Thus, this form of liberalism is no more consistent with our original principles as is Bork’s originalism.