Read Online Slouching Towards Gomorrah by Robert H. Bork - Free Book Online

rights to abortion, to practice prostitution, to homosexual marriage, to produce and consume pornography, and much more. Its individualism is so radical that it contends nude dancing is constitutionally protected free speech andit opposes metal detectors in airports as an intrusion upon individual autonomy. But when equality comes into play, the ACLU is for affirmative action and generally for more government limitations on the freedoms of business owners and managers, such as the power to discharge an employee for unsatisfactory performance. The ACLU is the premier litigating and lobbying arm of modern liberalism, and it has been extremely successful. Our primary concern here, however, is with the judiciary rather than the ACLU’s influence upon the course of adjudication.
    First of all, there is the Supreme Court’s constitutionalizing of radical individualism. In this area, we have arrived where Mill pointed, at an increasing disjunction between the individual and the society. The result is the “adversary culture.” Though it is neither logical nor legitimate as a matter of constitutional interpretation, there is a psychological basis in our Constitution for judicial radical individualism. One of the prices we pay for our Bill of Rights is an emphasis on personal freedom that is not balanced in the document by a Bill of Personal Responsibilities or a recognition, as in the constitutions of other countries, of limits set by community welfare. It is perhaps understandable, though certainly not excusable, that judges began to inflate enumerated rights and to create new rights, which they enforce against democratic decisions. Given the way the Court’s decisions are reported…as victories for attitudes or moral positions rather than as legal determinations…those decisions resonate throughout our culture with powerful effects on public attitudes.
    The unqualified language of the Bill of Rights and the Declaration of Independence, reflected in the continual expansion of individual rights by the judiciary, feed our national obsession about “rights.” That obsession, as Harvard law professor Mary Ann Glendon has pointed out, 3 impoverishes cultural, political, and judicial discourse. There is no more sterile form of “argument” than the bald assertion of rights. But bald assertion, unaccompanied by analysis or reasons, is the common form of discourse in these matters.
    The jurisprudence of the First Amendment is a case in point. That amendment is a central concern of modern liberal intellectuals, dealing as it does with speech and religion. The difference in the Court’s treatment of those two subjects flows naturally fromradical individualism. Modern liberals value speech, which they have now expanded to include non-verbal expression, while their attitude toward religion ranges from indifference to hostility. It is not surprising, then, that the Courts decisions expand the area of protected non-religious expression beyond reason in the interest of the utmost individual freedom. Simultaneously, and largely in the interest of individual autonomy, the Court has drastically limited the public expression of religion beyond anything the ratifiers intended. 4
    The freedom of speech guaranteed by the amendment was long thought by the Court to be speech about ideas, but that is not the Courts view today. Today, the Court reads the speech clause as a protection of self-expression, personal autonomy, or individual gratification. Perhaps the best known instance is
Cohen
v.
California
, 5 which conferred First Amendment protection on a young man who refused to remove a jacket with the words “F … the Draft” (without the ellipsis) that he wore in a courthouse corridor. Saying that the state could not convict Cohen of disorderly conduct, the Court majority observed: “[T]he principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word?” 6 The Court went on to