Renewing American Leadership

In his dissent from a 1996 Supreme Court decision, Justice Antonin Scalia lamented: "Day by day, case by case, [the Supreme Court] is busy designing a Constitution for a country I do not recognize" (p. xi).  Robert H. Bork, one of his generation's finest juridical minds, made Scalia's lament the title of a collection of essays he edited — "A Country I Do Not Recognize": The Legal Assault on American Values (Stanford, CA: Hoover Institution Press, c. 2005) — setting forth reasons for alarm regarding this nation's trajectory.  

"It's preeminently the Supreme Court, however, which has struck 'at the basic institutions [e.g. private property; individual liberty; marriage; family; religion] that have undergirded the moral life of American society for almost four hundred years and of the West for millennia'"

Summing up its message, Bork says: "There exists a fundamental contradiction between America's most basic ordinance, its constitutional law, and the values by which Americans have lived and wish to continue to live" (p. ix).  This contradiction results from three "developments.  First, much constitutional law bears little or no relation to the Constitution.  Second, the Supreme Court's departures from the Constitution are driven by 'elites' against the express wishes of a majority of the public.  The tendency of elite domination, moreover, is to press America ever more steadily toward the cultural left.  Finally, though this book concentrates on the role of judges, who constitute the most powerful single force in producing these effects, politicians and bureaucrats share a share of the responsibility" (p. ix).  

It's preeminently the Supreme Court, however, which has struck "at the basic institutions [e.g. private property; individual liberty; marriage; family; religion] that have undergirded the moral life of American society for almost four hundred years and of the West for millennia" (p. x).  So it receives the majority of attention in these essays, three of which I'll summarize.

  

"In the guise of enforcing the Constitution, the Court faithfully enacted the political program of the liberal cultural elite, working a thoroughgoing revolution in American law and life"

Lino A. Graglia, a law professor at the University of Texas, assails "Constitutional Law without the Constitution: The Supreme Court's Remaking of America," arguing that the Constitution no longer serves "as a guarantor of basic rights" but has instead "been made the means of depriving us of our most essential right, the right of self-government" (p. 2).  Judges issue opinions rooted in their own proclivities rather than in the written text in order to advance their privileged vision of an enlightened society.  Thus contraception, abortion, sodomy etc. are branded constitutional "rights" mysteriously resident in "penumbras, formed by emanations" from the Bill of Rights.  This has been done under the highly dubious rubric of judicial review, amplified by an illicit expansion of a single sentence in the 14th Amendment (now "our second Constitution"), rationalizing the judicial activism that makes judges legislators.  Consequently: "In the guise of enforcing the Constitution, the Court faithfully enacted the political program of the liberal cultural elite, working a thoroughgoing revolution in American law and life" (p. 32).  

Reflecting its commitment to the liberal cultural elite is the Court's commitment to abortion-on-demand.  Elevating the killing of innocent human beings to a constitutionally protected right vividly illustrates its dedication to a Nietzschean  "transvaluation of all values."  Thus there is, says Gary L. McDowell, a professor at the University of Richmond, "The Perverse Paradox of Privacy," prompting Justice Byron White to insist in his dissent from Roe that it was "nothing more than 'an exercise of raw judicial power ... an improvident and extravagant exercise of the power of judicial review'" (p. 75).  

McDowell finds the core of the justices' philosophical commitment in the oft-cited statement of Justice Anthony Kennedy in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), who found  justification for "'the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'" (p. 59).  Discerning no limits to individual freedom, the justices in Casey "undertook to establish an understanding of judicial power and constitutional interpretation far more radical than what any earlier court had ever suggested" (p. 72) and in the process revealed an "utter disdain" for "the idea of popular government" (p. 73). 

 

Terry Eastland, editor of The Weekly Standard, shows, in "A Court Tilting against Religious Liberty," how consistently the Supreme Court has misconstrued the First Amendment's provisions, doing "serious damage to the country" (p. 86).  Launching this process in a landmark decision, Everson v. Board of Education (1947), Justice Hugo Black culled a phrase from one of Thomas Jefferson's letters regarding the "wall of separation" between the state and religion, and subsequent decisions moved to ban religion from public life.  Consequently the courts prohibit even moments of silence in public schools, student prayers at commencements and football games, Christmas displays in court houses, etc.  In Stone v. Graham (1980), the Court banned the posting of the Commandments in public schools, concerned that "students might read, even 'meditate upon, perhaps ... venerate and obey' the Ten Commandments" (p. 95).  These decisions clearly repudiate the positions of Founding Fathers such as George Washington, who declared, in his Farewell Address, "that religion and morality are 'indispensable' to 'political prosperity' and cautioned against indulging 'the supposition that morality can be maintained without religion'" (p. 111).  Clearly the Court finds Washington's position out-dated, and we are, Eastland concludes, "embarked in a new direction, destination unknown" (p. 111).