Their Will Be Done [Robert Bork on O'Connor's replacement, constitutional law, and moral chaos]

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.

Bork on H&C called Teddy Kennedy the Left Liberal Joe McCarthy.

Alan was taken aback.

He kept repeating Joe McCarthy?, Joe McCarthy? ...as Sean continued the conversation.

This needs to be said clearly and more often.

There is no response to so noble a truth!

[ I fear you have nailed it. It just goes to show you what having the MSM in your pocket, unlimited chutzpah, no soul, no conscience and an aggressive game plan can do for you - even if you continuously lose elections! ]

Republicans "meaning US" not the RNC, recognizing that fact could cause change. Not in the democrat party but IN THE RNC.. Really its the republican party that needs to be dissed BY REPUBLICANS not the democrat party.. Some wouldn't agree with me, but they would be WRONG..

ONLY.... a threat of a stampede of the republican sheeple can effect a change in the RNC.. if they think we're drugged and happy no change will happen.. And who knows maybe WE ARE DRUGGED AND HAPPY... Count Von Bushula and the Bushbats(RNC) seem to be quite happy on the blood of the Sheeple as we speak.. In case you missed it, I'm not a happy camper.. sitting by my campfire with a crusafix and garlic necklace. Don't know if it will work, but hey, its something.. I hates them bats..

"I define an authoritarian as someone who asks: "Have the people been granted this right?" I define a libertarian as someone who asks: "Has the government been granted this power?"

That's neatly said, IMO. The Constitution does not list the rights of the people, it enumerates the limited powers of the govenment. The people retain all natural rights, with which they were born, "endowed by their Creator."

This in no way means that true advocates of liberty are contemptuous of ethics and morality - the people must, on a local level, for the survival of society, write laws and codes of conduct, usually based on Judaeo Christian values. Generally such laws and codes must be concerned primarily with prohibiting citizens from interfering with the life, liberty and property of other citizens and to a far lesser extent with traditional customs which have come to be accepted as necessary for society's preservation. Other than actions specifically prohibited by such codes, it is and was understood that the people retain all other rights.

It is specifically the authoritarian viewpoint (in the case of socialism, derived from rationalism), which imagines that the peoples' rights are granted by a higher authority, and that it is up to that authority to create a limited list of specific rights for the people, along with a list of reasons they may supply for the justification of the exercise of those rights.

Yes, and I must say that is disheartening to hear that disgrace Kennedy taking it upon himself to define what a 'mainstream conservative' is, while the GOP is silent and lets him get away with it.

O'Connor is not a conservative on social issues, and let's face it, those are the most hot-button and contentious issues the court deals with. She is a liberal, and to not respond forcefully to an orchestrated Dem/Left attempt to define what is and is not a reasonable conservative is to cede public opinion in the matter.

Where was Santorum, or Allen, or Coburn, or Frist? They should have been lampooning that buffoon from Mass, pointing out that ANYONE looks conservative compared to that clown.

<< This is a great article by a very intelligent, moral man. I hope that someone sends this article to Bush.

On the other hand, I was thinking that maybe the reason for the request to tone down the pressure on Bush is not because he doesn't want to hear it. Maybe it's that he doesn't want the left to hear it, because our very vocal demands are giving the Democrats cover for their filibuster. >>

Mr Bush is at present as far off target on the appointment of an associate justice to replace O'Conner as he is on the protections of America's borders, language, culture and sovereignty. And is likely at the moment to nominate his pro-abortion "good friend" from the Texas Supreme Court as anyone.

And for no better reason than to demonstrate his own mis-guidedly-resolute "loyalty" and "friendship" in the face of and despite all of the healthy FRoth-and-foam-flecked conservative opposition to that hispanic gentleman's nomination and elevation.

Better pray that Mr Bush is pulled into line or we shall almost certainly be hoist with an O'Conner clone.

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