BY ROBERT H.
Sunday, July 10, 2005 12:01 a.m. EDT
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 No. 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. . . . Without 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.
Justice 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 discrimination on the basis of race and sex 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.
Mr. Bork, a former judge of the U.S. Court of Appeals (D.C. Circuit), is a
fellow at the Hudson Institute and editor of "A Country I Do Not Recognize: The
Legal Assault on American Values," forthcoming from the Hoover Institution