Son,
The other night I posed a question to you (I recently posed the same question to your brother):
Suppose I own a house that I want to rent; suppose further that I am a racist and/or homophobe of the worst kind and I refuse to rent my house to blacks and gays. Should the state have the right to compel me to rent my house to people to whom I don't want to rent it?
In my opinion, the fact that the state forbids me to refuse to rent my house to anyone because of their race or sexual preference is a diminution of my freedom, regardless of the repugnance of my motives. After all, I own the house and I should be able to do with it as I please, not to mention that, as a practical matter, it is nearly impossible for the state to peer into the mind of a landlord and detect the exact mix of motives that leads him to refuse to rent to one individual or another.
At any rate, today I ran across the article Civil Rights -- A Challenge written by Robert Bork in New Republic Magazine back in 1963 making many of the same points with respect to pending legislation that eventually became the Civil Rights Act of 1964. It's short and worth a read, but here is a quote that captures the essence of Bork's argument:
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Professor Mark DeWolf Howe, in supporting the proposed legislation, describes southern opposition to "the nation's objective" as an effort "to preserve ugly customs of a stubborn people." So it is. Of the ugliness of racial discrimination there need be no argument (though there may be some presumption in identifying one's own hotly controverted aims with the objective of the nation). But it is one thing when stubborn people express their racial antipathies in laws which prevent individuals, whether white or Negro, from dealing with those who are willing to deal with them, and quite another to tell them that even as individuals they may not act on their racial preferences in particular areas of life. The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, ["deplorable" would be the term used today] and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness. [comments and emphasis added]
Since the time he wrote this article, Bork has been viewed as an arch-villain by the Left. And yet, many of the arguments he made (with which I agree) merely seek to defend the freedom of the individual against the invasion of an ever more powerful state into areas of life that should be kept private. Note that Bork's argument is not that racism is not ugly and abhorrent, but that the proposed remedy, namely, laws that try to legislate morals, control how individuals think, and tell people what they may and may not do with their private property, is much worse. In this day and age when violent protesters in Berkeley set fires and break windows in the Student Union Building to coerce and bully the University of California into cancelling the lecture of a person whose views they find ugly and abhorrent, and when the University meekly submits to this coercion, Bork's warnings seem prescient.
Bork is one of my great heroes (along with Antonin Scalia). Both were "originalists" and fiercely opposed to "substantive due process" arguments based on the 14th Amendment. In 1987, Ronald Reagan nominated Bork to the Supreme Court. The Democrats, led by Senator Ted Kennedy (JFK's younger brother, notorious for his alcoholism and the Chappaquiddick incident), launched a despicable campaign to defame and smear Bork. The Senate eventually voted to reject his nomination, depriving the Court of one of the great legal minds of the late 20th century. This was the opening shot in the war for control of the Supreme Court that continues down to this day with the Republicans refusing to confirm Merrick Garland, Obama's nominee to replace Scalia, and the Democrats now mounting a campaign to oppose Trump's nominee, Neil Gorsuch.
BTW, as a result of Bork's rejection by the Senate, the verb "to bork" entered into the English vocabulary. I recently proposed that the matching term, "to garland," be added to the English language. ;>)
Love,
Dad
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