Liberal/conservative, republican/democrat I suspect have less of a figure-ground relationship at high levels of government these days. 
Posted on 07/06/2005 8:00:51 AM PDT by rhema
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.
Freedom? Here's a good description:
"Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites--in proportion as their love of justice is above their rapacity;--in proportion as their soundness and sobriety of understanding is above their vanity and presumption;--in proportion as they are more disposed to listen to the counsels of the wise and good, in preference to the flattery of knaves. Society cannot exist, unless a controlling power upon the will and appetite is placed somewhere: and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds can not be free. Their passions forge their fetters."
-- Edmund Burke
Bork said Ruth Bader had been a student of his and how much he liked her.
This is a very good article and exactly the state of the Federal bench and the impact on our society. The SCOTUS is destroying the family one ruling at a time and the nation and society are suffering greatly. God help our children.
Yup, and then you die with that much less of a life worth living.
bttt
If Bork is authoritarian than so were the founding fathers, and the Constitution is an authoritarian document.
Everyone can be wrong from time to time about someone. Clearly Bork was wrong about Ginsberg.
I have a hunch Bork's essay will not be well received by our resident and lurking libertarians.
Thanks for posting that Burke quote. It's odd we don't get more posters quoting Burke on a conservative website.
The democrats are preparing for war over this next Justice appointment and the the Republicans are preparing for a civil, dignified process. The Republicans had better GET REAL, or our nation may pay a price from which we may not recover.
I think that the founding fathers were libertarian within the context of their day, but would not have been within the modern context. In other words, their fundamental outlook was libertarian, but there are causes supported by modern libertarians that I doubt would be countenanced by them.
You just stated another reason not to be so vocal about the choice of the judicial nominees. It just won't do any good and might do more harm. We made our choice in November and now we have to trust that we made a good decision. We don't want to give the left any cover for their irate rantings and disgraceful behavior.
After I posted this, I heard Rush say a similar thing.
Agreed. Freedom does NOT mean every person can do whatever immoral thing they want to do. That is not an idea the founders would support.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Mr. Bork has this to say:
"There is almost no history that would indicate what the ninth amendment was intended to accomplish. But nothing about it suggests that it is a warrant for judges to create constitutional rights not mentioned in the Constitution. Ely, along with a great many other people, thinks that it is precisely such a warrant. Nothing could be clearer, however, than that, whatever the purpose the ninth amendment was intended to serve, the creation of a mandate to invent constitutional rights was not one of them. The language of the amendment itself contradicts that notion.... If the Founders envisioned such a role for the courts, they were remarkably adroit in avoiding saying so ... What, then, can the ninth amendment be taken to mean? One suggestion ... is that the people retained certain rights because they were guaranteed by the various state contitutions, statutes and common law ... This meaning is not only grammatically correct, it also fits the placement of the ninth amendment just before the tenth and after the eight substantive guarantees of rights ... The ninth amendment appears to serve a parallel function by guaranteeing that the rights of the people specified already in the state constitutions were not cast in doubt by the fact that only a limited set of rights was guaranteed by the federal charter."
Robert Bork, The Tempting of America: The Political Seduction of the Law, p183.
"Well, I don’t know what it means and if someone would tell me what it means I would be happy to use it, but I just don’t know what it means. It's as though you had a copy of the Constitution and there was an inkblot on it and you couldn't read what was under the inkblot. I don't think judges should make up what’s under the inkblot."
Robert Bork, speaking on the Ninth Amendment before the Senate Judiciary Committee, 1987.
Like I said, so far as I'm concerned, we can do without another insolent authoritarian on the Supreme Court, in particular one with such self-admittedly dim reading comprehension.
Whether Bush likes it or not, conservatives, who discuss everything, should NOT remain quiet now. I agree with Bork. Furthermore, the left also heard his remarks to conservatives which bothers me.
The discussion about Gonzalez has never been personal or shrill and has always been civil and about his politics. Most reasonable conservatives do not see him as a reliable conservative. The president should consider the opinions of the majority of those who put him twice into power and should not be attempting to silence them. The Democrats will behave as the democrats no matter what.
Apparently, many on the left also don't like Gonzalez and spoke out today. Their attacks on Gonzalez will become far more personal. I have a sneaking suspicion, the president won't be asking them to be quiet or telling them that he doesn't like it when his friends are attacked. Such is politics. But Bush should keep his opinions about conservatives and their public discussions to himself. Many like myself aren't listening. And we don't take our marching orders from the Republican party.
Liberal/conservative, republican/democrat I suspect have less of a figure-ground relationship at high levels of government these days.
I should attempt to read a whole book by him. I wonder if there are any at my local library. I seriously doubt it.
Maybe I could find essays or something. I don't know much about him, but I read that many of the founder of this country were very influenced by him and his writings.
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
James Madison, addressing the First Congress of the United States, 1789.
The 'inkblot' means precisely what it obviously means: that the Federal government has no powers beyond those explicitly and narrowly enumerated within Article One, Section Eight of the U.S. Constitution - and that all further rights are retained by the people.
I agree with Bork that the ninth amendment does NOT mean that there are limitless rights which go beyond what the Constitution specifies. And I do not believe according to the Constitution, for instance, that one has a right to abortion, sodomy, homosexual marriage, or the use of illicit drugs for instance (and the list goes on and on), like so many libertarians do, and that does not mean that myself or anyone else who believes thusly, is authoritarian, including Judge Bork. Sorry.
I will repeat, if Judge Bork is authoritarian, so are the founding fathers.
Unfortunately I believe you're right. That's why new blood is needed. Professional politicians and whores have much in common, except with a prostitute she knows and the john knows what she is.
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