July 5, 2005
by Robert H. Bork
What do the nomination of a replacement for Sandra Day O'Connor, constitutional law, and moral chaos have to do with one another? A good deal more than you may think.
In Federalist 2, John Jay wrote of America that "Providence has been pleased to give this one connected country to one united people -- a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs . . . ." Such a people enjoy the same moral assumptions, the cement that forms a society rather than a cluster of groups. Though Jay's conditions have long been obsolete, until recently Americans did possess a large body of common moral assumptions rooted in our original Anglo-Protestant culture, and expressed in law. Now, however, a variety of disintegrating influences are undermining that unanimity, not least among them is the capture of constitutional law by an extreme liberationist philosophy. America is becoming a cacophony of voices proclaiming different, or no, truths.
Alexis de Tocqueville observed that "If each undertook himself to form all his opinions and to pursue the truth in isolation down paths cleared by him alone, it is not probable that a great number of men would ever unite in any common belief. . . . [W]ithout common ideas there is no common action, and without common action men still exist, but a social body does not."
Contrast Tocqueville with Justices Harry Blackmun and Anthony Kennedy. Blackmun wanted to create a constitutional right to homosexual sodomy because of the asserted "'moral fact' that a person belongs to himself and not others nor to society as a whole." Justice Kennedy, writing for six justices, did invent that right, declaring that "At the heart of [constitutional] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Neither of these vaporings has the remotest basis in the actual Constitution and neither has any definable meaning other than that a common morality may not be sustained by law if a majority of justices prefer that each individual follow his own desires.
Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills. Yet when it rules in the name of the Constitution, whether it rules truly or not, the Court is the most powerful branch of government in domestic policy. The combination of absolute power, disdain for the historic Constitution, and philosophical incompetence is lethal.
The Court's philosophy reflects, or rather embodies and advances, the liberationist spirit of our times. In moral matters, each man is a separate sovereignty. In its insistence on radical personal autonomy, the Court assaults what remains of our stock of common moral beliefs. That is all the more insidious because the public and the media take these spurious constitutional rulings as not merely legal conclusions but moral teachings supposedly incarnate in our most sacred civic document. That teaching is the desirability, as the sociologist Robert Nisbet put it, of the "break-up of social molecules into atoms, of a generalized nihilism toward society and culture as the result of individualistic hedonism and the fragmenting effect of both state and economy." He noted that both Edmund Burke and Tocqueville placed much of the blame for such developments on the intellectual class -- in our time dominant in, for example, the universities, the media, church bureaucracies, and foundation staffs -- a class to which judges belong and to whose opinions they respond. Thus ever-expanding rights continually deplete America's bank of common morality.
Consider just a few of the Court's accomplishments: The justices have weakened the authority of other institutions, public and private, such as schools, businesses, and churches; assisted in sapping the vitality of religion through a transparently false interpretation of the establishment clause; denigrated marriage and family; destroyed taboos about vile language in public; protected as free speech the basest pornography, including computer-simulated child pornography; weakened political parties and permitted prior restraints on political speech, violating the core of the First Amendment's guarantee of freedom of speech; created a right to abortion virtually on demand, invalidating the laws of all 50 states; whittled down capital punishment, on the path, apparently, to abolishing it entirely; mounted a campaign to normalize homosexuality, culminating soon, it seems obvious, in a right to homosexual marriage; permitted racial and gender discrimination at the expense of white males; and made the criminal justice system needlessly slow and complex, tipping the balance in favor of criminals. Justice O'Connor, a warm, down-to-earth, and very likeable person, joined many, though not all, of these bold attempts to remake America. Whatever one may think of these outcomes as matters of policy, not one is authorized by the Constitution and some are directly contrary to it. All of them, however, are consistent with the left-liberal liberationist impulse that advances moral anarchy.
Democratic senators' filibusters of the president's previous judicial nominees demonstrate liberals' determination to retain the court as their political weapon. They claim that conservative critics of the Court threaten the independence of the judiciary, as though independence is a warrant to abandon the Constitution for personal predilection. The Court's critics are not angry without cause; they have been provoked. The Court has converted itself from a legal institution to a political one, and has made so many basic and unsettling changes in American government, life, and culture that a counterattack was inevitable, and long overdue. If the critics' rhetoric is sometimes overheated, it is less so than that of some Democratic senators and their interest-group allies. The leaders of the Democratic Party in the Senate are making it the party of moral anarchy, and they will fight to keep the Court activist and liberal. The struggle over the Supreme Court is not just about law: it is about the future of our culture.
To restore the Court's integrity will require a minimum of three appointments of men and women who have so firm an understanding of the judicial function that they will not drift left once on the bench. Choosing, and fighting for, the right man or woman to replace Justice O'Connor is the place to start. That will be difficult, but the stakes are the legitimate scope of self-government and an end to judicially imposed moral disorder.
This article appeared in the Wall Street Journal on July 5, 2005.
Robert H. Bork was a Distinguished Fellow of Hudson Institute. He passed away on December 19, 2012.
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