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In Praise of Robert Bork on Law and Culture
First Principles ^ | 04/13/09

Posted on 05/04/2009 2:16:23 PM PDT by Conservative Coulter Fan

Part 3 of a symposium on the career of Judge Robert Bork and the publication of A Time to Speak. Part 1. Part 2.

When Slouching Toward Gomorrah appeared, it bore on its dust jacket a few words of mine praising the book and its distinguished author: “The ideological triumph of liberalism among American elites, far from bringing the individual and social enlightenment it promised, has produced unprecedented decay. The principal victims of this decay are the poorest and most vulnerable among us, those most in need of a healthy culture. Bork courageously and boldly states these truths. A judge as wise as Solomon has become a prophet as powerful as Isaiah.”

That is what I thought then, and I believe it even more firmly now. It was not that I agreed with everything that Judge Bork said in the book. I strongly dissented, for example, from Judge Bork’s attitude of suspicion toward the natural rights teaching and equality doctrine of the Declaration of Independence, though it must be said that even in the chapters of Slouching in which he articulates the grounds of his skepticism about the Declaration, I found characteristically Borkian flashes of insight and many important truths.

What seemed to me most prophetic about the book was its profound appreciation of the character- or soul-shaping role of culture and its deadly accurate description of, and warning about, the ways in which the triumph of liberal ideology among American elites was corroding public morality and damaging the interests of all of us, but especially the poorest and most vulnerable among us. This is our common interest in maintaining a social environment—a moral ecology, as I have elsewhere described it—that is more or less conducive to virtue and at least minimally inhospitable to what the great British jurist Patrick Devlin referred to as “the grosser forms of vice.”

I have in my own writings, both before Slouching and after, offered philosophical criticisms of what I regard as the illusion of moral neutrality that is the centerpiece of much liberal and libertarian legal and political theory, political theory of the sort that has been championed by the late John Rawls, for example, by Ronald Dworkin, and the late Robert Nozick. I’ve tried to illustrate the many ways in which beliefs, attitudes, and choices are shaped in any society—not just in ours—by the framework of understandings and expectations that, to a considerable extent, constitute for better or worse a society’s public morality and would do so even in the strict libertarian’s utopia.

I’ve sought to show that the acts of private parties, even the apparently private acts of private parties, can and often do have public consequences; indeed, sometimes very extensive and profound public consequences. It will come as no surprise, then, that I found Judge Bork’s refocusing of our attention on public morality to be valuable and even prophetic.

Of course, the next question, for those of us who see things as Judge Bork and I see them is, the hard one: “What do we do about it?”

Truth be told, in the period from roughly the middle 1960s to the publication of Slouching Toward Gomorrah in the mid-1990s there had been very little serious scholarly attention given to public morality and its decline. Concern about public morality seemed to disappear, at least from the scholarly literature, except as an item of ridicule. Even as public morality was quickly eroding, virtually no attention was paid to the question of what might be done to rebuild a decent moral ecology.

So the question is, what are the legitimate and illegitimate means of upholding or restoring public morality? What is likely to work, and what is likely to prove futile or even to do more harm than good? We can all think of ways in which the effort to rebuild public morality could go awry. And, of course, there are some people who believe that any effort to rebuild public morality would do more harm than good, or at least any use of the law toward that end.

But that brings us, of course, to the next question, what is the role and what are the limits of law in the establishment and maintenance of public morality or a moral ecology that assists us in our own lives and in bringing up our children to be decent and honorable people? Now here Judge Bork and I break from our strict libertarian friends. We do think that law and public policy can play a constructive, albeit limited, role in protecting not only public health and safety but public morals as well.

Judge Bork, in Slouching, was even willing to cause scandal and outrage by putting in a good word for censorship. Now I myself would never support the censoring of ideas and arguments, however evil and revolting the causes in which they are advanced. I would defend, for example, Larry Flynt’s right to advocate a free market in hard-core pornography, and even his right to encourage pornography as a tool of personal and social liberation—as vile an idea as I think that is. At the same time, I would have no objection in principle and can think easily of circumstances under which I would be willing to support forbidding Flynt, by law, from producing and distributing his smut. If there is a case against shutting down operations like Hustler, it is merely a prudential case, not a case based on natural rights, liberty, equality, or justice, or so it seems to me.

In my own criticisms of John Stuart Mill’s “harm principle,” for example, or of modern and contemporary defenses of that principle and its application to some of the issues that people who think about public morality are concerned about, I’ve made the argument that there is no ground of moral principle on which Mill’s position can be defended, although in the case of any proposal to use the mechanism of the law, especially in its coercive aspects, to forbid wrongdoing, there are always a range of prudential questions that have to be asked and answered. And sometimes the weight of argument as a matter of prudence will militate against using the force of law, other times, perhaps, for it.

Take, for example, the drug prohibition debate. Now it seems to me that there is no compelling moral argument for a right to use hallucinogens and other mind-impairing drugs on a recreational basis. However, it seems to me that critics of drug prohibition have made a serious case for their view on prudential, as opposed to moral, grounds. I don’t myself find it in the end to be a persuasive case, but I can understand why many people do. They have been persuaded that the social costs imposed by drug prohibition are so high, that we would be better off decriminalizing at least some commonly used drugs.

In any event, I think that’s where the argument has to be made. It is not a question of whether people have a right to do immoral things like use cocaine or LSD, but rather a question of whether the effort to use the coercive force of the law will be futile or even counterproductive—whether it will do more harm than good by, for example, encouraging police corruption or the development of black markets, or leading to the prohibition of legitimate things that might fall under too sweeping a prohibition.

In the area of censorship, or example, there are arguments having to do with whether efforts to ban pornographic material that really does deserve to be banned will lead to the banning of material—literature, art, movies—that actually does have important literary and artistic merit. Now that’s not necessarily to say that the prudential argument always comes down against prohibition. It is only to say that someone considering what his position ought to be on the question, whether as a policymaker or a citizen of a democratic society, needs to consider carefully the weight of prudential arguments on the competing sides. It is not a knockdown, for example, even to prove that if we prohibit Hustler, there will, in some circumstances in some parts of the country, be prohibitions of literature that actually should not be prohibited because it is not truly obscene. The question of what the default position should be is itself a matter for argument and prudential judgment. It requires us to consider what damage is being done, especially to our young people, in a culture in which pornography flows as freely and flourishes as it does in our society today.

Let me conclude these remarks with a brief comment about the role of law and government in upholding public morality in circumstances where it does have a legitimate role, where it passes not only the test that I think it will always pass so long as what it’s prohibiting is actually something wicked, but even where it passes all the tests of prudence. And that comment is this, that the role of law and government is always secondary and subsidiary. The primary role, it seems to me, in this area is played by the institutions of civil society—families, churches and other religious bodies, organizations such as the Boy Scouts—that are concerned fundamentally with character formation and which by working closely with individuals can actually do a good job of inculcating a sound understanding of morality and promoting virtue. Despite the fact, that is to say, that public morality is indeed a public good, its maintenance depends far more on contributions of private institutions, beginning with the family, than on the institutions of law and government, and we go wrong on the non-libertarian side if we invert them and ascribe to government and law the primary role. Where families, churches, and other institutions of civil society fail, or where they’re unable, perhaps because of legal impediments, to play their parts properly, laws will hardly suffice to preserve public morals. Ordinarily, at least, law’s role is supportive. That’s what I mean by secondary, subsidiary. Its role is to support families, churches, and the like in the task of forming honorable and decent people and good citizens.

And of course, finally, the point that cannot be stressed often enough: Law goes wrong when it displaces those institutions of civil society, when it undermines or pushes aside the church, the family, other character-shaping institutions, and substitutes itself for them, forcing them in a sense to abdicate their own responsibilities.

At the same time, while we must be aware of a usurpation of familial or religious authority by government, it’s also important to note that the role of law upholding public morality, even though it is subsidiary, is itself undermined by families, by religious communities, churches and other religious institutions, when they abdicate their primary responsibility, or even worse, when they promote false and morally destructive practices.


TOPICS: Culture/Society; Front Page News
KEYWORDS: bork; culturewars; robertbork; scotus

1 posted on 05/04/2009 2:16:23 PM PDT by Conservative Coulter Fan
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To: Conservative Coulter Fan

Let the Bork bash begin. Some clown here will find a reason to abuse this fine jurist.


2 posted on 05/04/2009 2:20:26 PM PDT by Jacquerie
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To: Conservative Coulter Fan
Truth be told, in the period from roughly the middle 1960s to the publication of Slouching Toward Gomorrah in the mid-1990s there had been very little serious scholarly attention given to public morality and its decline.

Nobody remembers Russell Kirk?

"The Essential Russell Kirk: Selected Essays"

3 posted on 05/04/2009 2:37:22 PM PDT by Ozone34 ("There are only two philosophies: Thomism and bullshitism!" -Leon Bloy)
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To: Jacquerie
< i>"Let the Bork bash begin. Some clown here will find a reason to abuse this fine jurist."

I can't call anyone who bought into the "militia only" argument on the Second Amendment a "fine jurist". On that subject, Bork rightfully deserves all the abuse that can be heaped on him.

4 posted on 05/04/2009 4:31:48 PM PDT by Wonder Warthog ( The Hog of Steel)
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To: Jacquerie
Let me be the first:

Bork once stated that it was too late to turn back the clock on all the blatantly unconstitutional crap being passed off as law.

I strongly disagree.

5 posted on 05/04/2009 4:41:04 PM PDT by metesky (My retirement fund is holding steady @ $.05 a can.)
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To: metesky
I strongly disagree.

Oooh, grab your panties.

6 posted on 05/04/2009 5:20:24 PM PDT by Jacquerie
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To: Conservative Coulter Fan

Why didn’t Bush II re-nominate Bork to the Supremes?


7 posted on 05/04/2009 8:31:08 PM PDT by 2harddrive (...House a TOTAL Loss.....)
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To: Conservative Coulter Fan
Law goes wrong when it displaces those institutions of civil society, when it undermines or pushes aside the church, the family, other character-shaping institutions, and substitutes itself for them, forcing them in a sense to abdicate their own responsibilities.

Amen brother. This is why we needed Bork on The Court.
8 posted on 05/05/2009 8:19:38 AM PDT by fleagle ( An appeaser is one who feeds a crocodile, hoping it will eat him last. -Winston Churchill)
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To: Wonder Warthog

What is your source?


9 posted on 05/05/2009 2:55:53 PM PDT by Jacquerie
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To: Jacquerie
"What is your source?"

Bork's own writings. I forget exactly where I read them--probably in a NRA magazine or gun rights forum. But make no mistake about it, Bork did NOT believe that the Second Amendment protected an individual right.

10 posted on 05/05/2009 5:58:49 PM PDT by Wonder Warthog ( The Hog of Steel)
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To: Jacquerie

From Wikipedia:

“Bork has denounced what he calls the “NRA view” of the Second Amendment, something he describes as the “belief that the constitution guarantees a right to Teflon-coated bullets.” Instead, he has argued that the Second Amendment merely guarantees a right to participate in a government militia.[22]”


11 posted on 05/05/2009 6:01:15 PM PDT by Wonder Warthog ( The Hog of Steel)
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To: Wonder Warthog

Okay.

Good thing the rats kept him off the Supreme Court, right?


12 posted on 05/06/2009 5:01:15 AM PDT by Jacquerie
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To: 2harddrive
Why didn’t Bush II re-nominate Bork to the Supremes?

Probably never crossed his mind. But even if it did, how old is Bork now? How long would he be expected to serve? What would have been the likelihood of him leaving the Court under a Dem president, allowing his seat to be flipped over to the Libs?

GWB did good in getting Roberts and Alito onto the Court. They're Conservative, but they are also YOUNG and can be expected to sit on the court for 25-35 years.
13 posted on 05/06/2009 5:25:22 AM PDT by tanknetter
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To: Jacquerie
"Good thing the rats kept him off the Supreme Court, right?"

In my opinion, yes. The RKBA is "the" definitive litmus test for any jurist or legislator. If they oppose an individual right of the citizenry to be armed, then they do NOT understand the Constitution and the Bill of Rights, or, they "do" understand them and will work to overthrow them.

14 posted on 05/06/2009 8:09:22 AM PDT by Wonder Warthog ( The Hog of Steel)
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To: Wonder Warthog
Right. A 99% constitutionalist is your enemy. Keep that attitude and keep reelecting the likes of Obama.
15 posted on 05/06/2009 2:58:13 PM PDT by Jacquerie (More Central Planning is not the solution to the failures of Central Planning.)
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To: Jacquerie

I don’t see Bork’s record as anything like “99% constitutionalist”. But you truck right on with your love affair of the senile old bastard.


16 posted on 05/07/2009 4:01:40 AM PDT by Wonder Warthog ( The Hog of Steel)
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To: Wonder Warthog

Didn’t watch his senate confirmation hearings did you? You obviously haven’t read his books on the constitution either.

Keep on trucking in your ignorance.


17 posted on 05/07/2009 3:21:27 PM PDT by Jacquerie (More Central Planning is not the solution to the failures of Central Planning.)
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To: Conservative Coulter Fan

18 posted on 05/26/2009 10:10:56 PM PDT by smokingfrog ( Don't mess with the mockingbird! /\/\ http://tiny.cc/freepthis)
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To: Conservative Coulter Fan

Your case against John Stuart Mill’s harm principle smacks of a classic strawman. John Stuart Mill wasn’t interested in making some moral or normative case in favor of it. Mill was a utilitarian, albiet of a different stripe than Jeremy Bentham. Mill’s harm principle simply creates the only definition of freedom that doesn’t involve any internal contradictions - as repulsive as some of its outcomes might be to social conservatives and indeed some liberal postmodernists as well.

The question of public morals, censorship, and pornography vindicates Mill’s utilitarian position. The moral case for banning Hustler magazine works just as well against a garden Harlequin romance novel, Cosmopolitan magazine, the SI Swimsuit edition, Seinfeld, Baywatch, WWE wrestling, rock videos, NFL cheerleading, etc. The reason for this is the so-called Judeo-Christian moral structure issues no normative standards for making distinctions between Hustler and any of the aforementioned publications or productions. The Bible itself doesn’t even mention pornography by name. Therefore any take on that topic defaults to a mere human construct that can’t claim any greater moral compass than any other.


19 posted on 05/27/2009 6:05:22 AM PDT by Galleria
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To: Jacquerie
Ignorance is a charge admirers of Robert Bork should not make lightly. If Robert Bork is a Constitutionalist, it must be another constitution than the one I'm familiar with. He claims the First Amendment only applies to political speech, which rewrites the free speech clause. He denies the right to bear arms to the very “people” listed in the Second Amendment, and he even throws the Ninth Amendment out of the Constitution itself. He resisted the notion of a general principle of racial equality in the Fourteenth Amendment's equal protection clause right up until his confirmation hearing - but that's no surprise since he was a race segregationist in the early 1960s. Moreover, original understanding is only his latest judicial philosophy. He was a (supposed) libertarian, a process theorist, a judicial restraint advocate, a neutral principal champion, a “law and economics” man and a devotee of original intent (as opposed to original understanding which differs somewhat). In short, the man changed his views more times on the Constitution than some people change their socks in a month. He's either a total flake or an intellectual fraud.
20 posted on 05/28/2009 6:17:03 PM PDT by Galleria
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To: Galleria
You are on the side of such notables as The Pig Kennedy, Chris Dodd, Chuckie Schumer, Plugs Biden and every radical Leftist group.

Congratualations.

21 posted on 05/29/2009 4:16:57 AM PDT by Jacquerie (That to secure these Rights, Governments are instituted among Men - Our Declaration of Independence)
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To: Jacquerie

The only side I am on is that of intellectual honesty. Honesty has no political affiliation or bias. I’m conservative on some issues, liberal on others, and on other issues I find little merit in doctrinaire conservative or liberal thinking. Your worldview is a stunted, dualistic “Conservative double plus good, Liberal double plus bad.” I’m familiar with it because I held it myself 20 years ago. You’ve allowed yourself to get caught up in Robert Bork’s cult of personality and his pseudo-martyrdom. Please keep an open mind. Even conservative icon William F. Buckley warned against the ideologicalization of conservatism.

Bork was his own executioner. He violated his own system of original understanding when he testified about the Fourteenth Amendment’s equal protection clause before the Senate Judiciary Committee. The floor manager of the House during the 39th Congress made it clear the said amendment wouldn’t mean black and white children would attend school and that very same Congress didn’t desegregate the already segregated schools of D.C. The “original understanding” of the amendment a la Bork’s philosophy is thus that Jim Crow is legal. But Bork knew that being a pro-Jim Crow nominee would be a ticket straight to the curb so he comes up with this ‘general principle of racial equality’ which justified Brown vs Board of Education - thereby ignoring the history of that amendment in practice for almost 90 years after it was ratified and throwing his own system out the window.

This was only one of his faux pas before the Senate Judiciary Committee. Like I said, I’m no by-the-numbers liberal or by-the-numbers anything else for that matter. I think Scalia, Roberts, Alito, and Thomas are fine justices and I would’ve voted to confirm them if I was in the Senate (well, Thomas a bit reluctantly but I would’ve given him the thumbs up nonetheless). Those guys don’t take a buffet approach to their own judicial theory.


22 posted on 05/29/2009 5:58:38 PM PDT by Galleria
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To: Jacquerie; Wonder Warthog
I can confirm that.

The NRA was all over it at the time.

Any judge who can say with a straight face that the 2nd Amendment doesn't protect an individual right is not playing with a full deck.

I have not trusted Bork ever since I learned that about him. That may be one of the underlying reasons that he was not confirmed, aside from his grouchy demeanor.

There are plenty of otherwise doctrinaire Demorats who will not tolerate people who don't believe in the 2nd Amendment.

23 posted on 05/29/2009 6:00:48 PM PDT by AnAmericanMother (Ministrix of ye Chasse, TTGC Ladies' Auxiliary (recess appointment))
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To: AnAmericanMother
"Any judge who can say with a straight face that the 2nd Amendment doesn't protect an individual right is not playing with a full deck. I have not trusted Bork ever since I learned that about him."

My sentiments precisely.

24 posted on 05/29/2009 7:18:42 PM PDT by Wonder Warthog ( The Hog of Steel)
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To: Wonder Warthog
Yep.

A politician's position on the Second Amendment tells you whether they trust the people, or distrust the people and want to use the power of the State to control them.

Gun control = people control.

It's my basic litmus test. If a politician doesn't support the Second Amendment as a guarantee of individual rights, he's a nascent fascist or at least an authoritarian statist, and I want nothing to do with him.

25 posted on 05/29/2009 7:25:07 PM PDT by AnAmericanMother (Ministrix of ye Chasse, TTGC Ladies' Auxiliary (recess appointment))
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To: AnAmericanMother

You are in poor company. The Leftist rats and Rinos also opposed him.


26 posted on 05/30/2009 4:05:29 AM PDT by Jacquerie
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To: Jacquerie
This is what C.S. Lewis called the "Smith fallacy". Mr. Smith says, "The sum of the square of the hypotenuse of a triangle is equal to the sum of the squares of the other two sides." Mrs. Smith says, "You're just saying that because you're a MAN!"

The leftists and RINOs have quite different reasons for objecting to Bork. I think it's because he's really an authoritarian statist with a thin veneer of conservatism. The leftists and RINOs object to the conservatism, not the statism (they LOVE statism once they get into power - like Obama or Clinton - "Hey, those are OUR planes now."

But a judge who supports gun control on the basis of a collective interpretation of the 2nd Amendment is somebody that I want FAR AWAY from any judicial post where he has a chance of taking a shot at the Constitution.

27 posted on 05/30/2009 5:09:50 AM PDT by AnAmericanMother (Ministrix of ye Chasse, TTGC Ladies' Auxiliary (recess appointment))
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To: Jacquerie
And of course he was dead wrong on that interpretation as demonstrated by Heller.
28 posted on 05/30/2009 6:21:50 AM PDT by AnAmericanMother (Ministrix of ye Chasse, TTGC Ladies' Auxiliary (recess appointment))
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To: AnAmericanMother
"It's my basic litmus test. If a politician doesn't support the Second Amendment as a guarantee of individual rights, he's a nascent fascist or at least an authoritarian statist, and I want nothing to do with him."

Lady, you're "singing my song" (unlike OCP!).

29 posted on 05/31/2009 5:40:03 AM PDT by Wonder Warthog ( The Hog of Steel)
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To: Wonder Warthog
LOL!

We did the plainsong "Veni Creator Spiritus" as a prelude, Thomas Weelkes's "Alleluia - I Heard A Voice" for offertory, the plainsong sequence "Veni Sancte Spiritus", and our organist's arrangement of the same chant for organ and SATB for communion today.

It rocked the house. Especially our organist's WILD setting of the Veni Sancte. You never heard so many cluster chords and galloping arpeggios in your life.

30 posted on 05/31/2009 1:20:51 PM PDT by AnAmericanMother (Ministrix of ye Chasse, TTGC Ladies' Auxiliary (recess appointment))
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To: AnAmericanMother
"We did the plainsong "Veni Creator Spiritus" as a prelude, Thomas Weelkes's "Alleluia - I Heard A Voice" for offertory, the plainsong sequence "Veni Sancte Spiritus", and our organist's arrangement of the same chant for organ and SATB for communion today."

Stop! Stop! You're making me want to cry (again).

Week before last, our cantor sang a rendition of "Ave Maria" just before Mass (he is GOOD, having just gotten back from a performance for (among others) Pope Benedict). This was followed immediately by the entrance song (OCP) "Sing a New Song Unto the Lord". The juxtaposition of those two pieces brought tears to my eyes (and NOT tears of joy).

Utter sublimity followed by trite, tin-panny TV commercial music. Sheesh!

31 posted on 05/31/2009 5:53:18 PM PDT by Wonder Warthog ( The Hog of Steel)
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To: Wonder Warthog
Oh, dear.

Well, at least you had the good "Ave Maria". Which one was it? (there must be three hundred).

It's a complete mystery to me why people resort to that OCP trash while there's so much good music out there just waiting to be sung.

Just steal it from the Episcopalians. They stole it from us in the first place! It's embarassing when Catholics are singing OCP and the Piskies are singing stuff out of the Gross-Catholisch-Gesangbuch (it's hard to go wrong with the early German hymns). As I said to somebody today with reference to the Weelkes motet, the Anglicans may be heretics but their musical taste is impeccable.

I realized belatedly that the website won't let you in directly to the audio clip. If you go to here, scroll down, and click on the "play" link right under the graphic of the album cover, you can hear the first section of the Weelkes anthem and just a smidgen of the second section. It's absolutely fabulous, and it has a star turn for the baritones. King's College Cambridge does it beautifully (I'm ordering the album!)

32 posted on 05/31/2009 6:11:05 PM PDT by AnAmericanMother (Ministrix of ye Chasse, TTGC Ladies' Auxiliary (recess appointment))
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To: AnAmericanMother

Your observation about Bork being a phony conservative is a conclusion I came to a long time ago about the good judge. Bork is a reactionary, not a conservative. He has no problem with unlimited government power as long as it’s used for purposes he agrees with. In that sense he’s really cut from the same cloth of the hard Left he condemns. Barry Goldwater fought the reactionaries who passed themselves off as conservatives from 1981 until the day he died. He told them if “you do it in the name of conservatism I will fight you.” And he did until the day he died.


33 posted on 06/01/2009 9:10:42 PM PDT by Galleria
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To: Galleria

I like “reactionary” better than “authoritarian statist”. Less unwieldy.


34 posted on 06/02/2009 8:05:04 AM PDT by AnAmericanMother (Ministrix of ye Chasse, TTGC Ladies' Auxiliary (recess appointment))
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