A Country I Do Not Recognize Read online

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  American Individualism

  and Societal Values

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  TAUBE FAMILY FOUNDATION

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  “A Country I Do Not Recognize”

  THE LEGAL ASSAULT

  ON AMERICAN VALUES

  EDITED BY

  Robert H. Bork

  HOOVER INSTITUTION PRESS

  Stanford University Stanford, California

  The Hoover Institution on War, Revolution and Peace, founded at Stanford University in 1919 by Herbert Hoover, who went on to become the thirty-first president of the United States, is an interdisciplinary research center for advanced study on domestic and international affairs. The views expressed in its publications are entirely those of the authors and do not necessarily reflect the views of the staff, officers, or Board of Overseers of the Hoover Institution.

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  Hoover Institution Press Publication No. 535

  Copyright © 2005 by the Board of Trustees of the

  Leland Stanford Junior University

  All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission of the publisher.

  First printing, 2005

  12 11 10 09 08 07 06 05 9 8 7 6 5 4 3 2 1

  Manufactured in the United States of America

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  Library of Congress Cataloging-in-Publication Data

  “A country I do not recognize” : legal challenges to American values /

  edited by Robert H. Bork.

  p. cm. — (Hoover Institution Press publication series ; 535)

  Includes bibliographical references and index.

  ISBN 0-8179-4601-2 casebound (alk. paper)

  ISBN 0-8179-4602-0 paperback (alk. paper)

  1. Constitutional law—United States. 2. Political questions and judicial power—United States. 3. Social values—United States. 4. Sociological jurisprudence. 5. United States. Supreme Court. I. Bork, Robert H. II. Series: Hoover Institution Press publication ; 535.

  KF4549.C68 2005

  340’.115—dc22 2005003169

  Contents

  Contributors

  Introduction

  Robert H. Bork

  1. Constitutional Law without the Constitution:

  The Supreme Court’s Remaking of America

  Lino A. Graglia

  2. The Perverse Paradox of Privacy

  Gary L. McDowell

  3. A Court Tilting against Religious Liberty

  Terry Eastland

  4. The New Diplomacy Threatens American

  Sovereignty and Values

  David Davenport

  5. The Dangerous Myth of Universal Jurisdiction

  Lee A. Casey and David B. Rivkin Jr.

  Index

  Contributors

  ROBERT H. BORK has served as solicitor general, acting attorney general of the United States, and United States Court of Appeals judge. He is also a distinguished fellow at the Hudson Institute and the Tad and Dianne Taube Distinguished Visiting Fellow at the Hoover Institution. He has been a partner in a major law firm and taught constitutional law at Yale Law School. Bork is author of the best-selling The Tempting of America: The Political Seduction of the Law and Slouching towards Gomorrah: Modern Liberalism and American Decline.

  LEE A. CASEY has served in various capacities in the federal government including in the Office of Legal Counsel and Office of Legal Policy at the U.S. Department of Justice. He is a partner of the law firm of Baker & Hostetler in Washington, D.C., focusing on federal, environmental, constitutional, electoral, and regulatory law.

  DAVID DAVENPORT is a research fellow at the Hoover Institution and is Distinguished Professor of Public Policy at Pepperdine University. He served as president of Pepperdine University from 1985 through 2000.

  TERRY EASTLAND is publisher of The Weekly Standard. His books include Energy in the Executive: The Case for the Strong Presidency and Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State.

  LINO A. GRAGLIA has written widely in constitutional law—especially on judicial review, constitutional interpretation, race discrimination, and affirmative action—and also teaches and writes in the area of antitrust. He is the author of Disaster by Decree: The Supreme Court Decisions on Race and the Schools and many articles, including “Church of the Lukumi Babalu Aye: Of Animal Sacrifice and Religious Persecution” (Georgetown Law Journal, 1996). He has been a visiting professor at the University of Virginia School of Law and is A. Dalton Cross Professor of Law at the University of Texas.

  GARY L. MCDOWELL is the Tyler Haynes Interdisciplinary Professor of Leadership Studies, Political Science, and Law at the Jepson School of Leadership Studies in the University of Richmond. Among his books is Curbing the Courts: The Constitution and the Limits of Judicial Power.

  DAVID B. RIVKIN JR. has served in various policy and legal positions in the U.S. government, including stints in the White House Counsel’s office, Office of the Vice President, and the Departments of Justice and Energy. He is a partner at the law firm of Baker & Hostetler in Washington, D.C., focusing on litigation of international, constitutional, and environmental issues. Mr. Rivkin is also a visiting fellow at the Nixon Center and a contributing editor at the National Review and The National Interest magazines. He has written widely on constitutional and international law matters, as well as on foreign and defense policy issues.

  Introduction

  Robert H. Bork

  What has long been true has now become obtrusively apparent: 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. That disjunction promises to become even more acute as the United States, along with Europe, moves toward the internationalization of law. Several things are to be observed about these 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 bear a share of the responsibility.

  Though there have been instances of judicial perversity throughout our history, nothing prepared us for the sustained radicalism of the Warren Court, its wholesale subordination of law to an egalitarian politics that, by deforming both the Constitution and statutes, reordered our politics and our society. Some of these changes were both constitutionally legitimate and beneficial;1 most were not. Today’s Court, though generally more honest in interpreting statutes, is, if anything, even bolder in rewriting the Constitution to serve a cultural agenda never even remotely contemplated by the founders. This Court strikes at the basic institutions that have undergirded the moral life of American society for almost four hundred years and of the West for millennia. As John Derbyshire put it, “We Americans ar
e heading into a ‘crisis of foundations’ of our own right now. Our judicial elites, with politicians and pundits close behind, are already at work deconstructing our most fundamental institutions—marriage, the family, religion, equality under the law.”2

  Courts, even with the assistance of politicians and bureaucrats, have not, of course, accomplished this deconstruction entirely on their own. They both reflect and advance a broader cultural movement that has been growing and maturing among elites, including most members of the Supreme Court, for several decades and that erupted and became full-blown in the late 1960s and early 1970s, a period commonly called the Sixties decade. What was at first a counterculture gained traction and further radicalized attitudes among elites. The Court, now downplaying the question of economic equality in favor of “lifestyle” issues, came to embrace and then to celebrate group identity and radical personal autonomy in moral matters. The Court majority, to put the matter plainly, has been overtaken by political correctness. Traditional values are being jettisoned and self-government steadily whittled away. The American people have no vote on these transformations; efforts by legislatures to set limits to cultural change and to control its direction are routinely, and almost casually, thwarted.

  The complaint here is not that old virtues are eroding and new values rising. Morality inevitably evolves. A society that knew only change would exist in a state of constant frenzy and would soon cease to be a society; a society whose values never altered would resemble a mausoleum. But the merits of specific changes, how far and how rapidly they should proceed, and whether any particular aspect of morality should form the basis of law, are questions of prime importance to the way we live. And these questions, according to the postulates of the American republic, are matters to be resolved primarily within families, schools, churches, and similar institutions, and only occasionally by public debate, elections, and laws that embody, however imperfectly and temporarily, the current moral consensus. What is objectionable is that, in too many instances, a natural evolution of the moral balance is blocked and a minority morality forced upon us by judicial decrees.

  This judicial gnosticism was described by Justice Antonin Scalia in a dissent: “What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional? . . . Day by day, case by case, [the Supreme Court] is busy designing a Constitution for a country I do not recognize.”3

  Less far advanced, but no less objectionable, is the ongoing internationalization of law, including even the internationalization of American constitutional law. It may seem bizarre that the Constitution of the United States, written and ratified over two hundred years ago, should be interpreted with the guidance of today’s foreign court decisions and even the nonbinding resolutions of international organizations, but that does not seem at all preposterous to some of our Supreme Court justices nor to the elites to which the justices respond. The Supreme Court reporter for the New York Times remarked, approvingly, that “it is not surprising that the justices have begun to see themselves as participants in a worldwide constitutional conversation.”4 She might more accurately have said “a worldwide constitutional convention.”

  Most of us understand law to mean rules laid down by a legislature, court, or regulatory agency, acting within its delegated authority. When the lawgiver acts without legitimate authority, its “law” is to that degree bogus, but if its order cannot be effectively resisted, it is, nonetheless, for all practical purposes, law—power without legitimacy. It is a bedrock assumption of American republicanism that authority is only legitimate when its ultimate source is either the American citizenry (acting through elected and accountable representatives) or when it follows from acceptable limitations on majority rule (federal and state constitutions enforced by judges). These are contending principles and neither should encroach systematically on the other. Judges who regularly defeat democratic outcomes without any warrant in the Constitution are justified by neither principle; they have simply enlisted on the side of the intelligentsia against the general public in our culture war.

  The first three chapters of this book deal with constitutional law. Lino A. Graglia provides an overview: “Rightly revered as the guarantor of our rights, the Constitution has been made, instead, the means of depriving us of our most essential right, the right of self-government. . . . The central fact as to contemporary constitutional law . . . is that it has very little to do with the Constitution.” The Court has become the “ultimate law-giver on most of the basic issues of domestic social policy,” and these are the “issues that determine the basic values, nature, and quality of a society.” Racial and gender equality are denied by decisions favoring affirmative action and group identity while an egregiously broad scope for personal autonomy undercuts legitimate community desires for a degree of order and morality. The undercutting takes several forms: the creation of unjustified restraints on the criminal justice system that make policing, prosecution, and punishment difficult, often inordinately delayed, and sometimes impossible; disapproval of laws reinforcing morality, particularly in sexual matters, to the detriment of marriage, families, and the traditional moral order; virulent antagonism to public displays of religion; and, in a stunning inversion of the First Amendment’s guarantee of freedom of speech, protection of the worst forms of pornography and vulgarity but approval of even prior restraints on political speech, historically the heart of the Amendment. Graglia’s comprehensive indictment is entirely justified. The contest is one between democracy and oligarchy, and for half a century the oligarchs have been winning.

  Gary L. McDowell brings into focus a major doctrine of relatively recent invention—the right of privacy—that has been used by the Court to constitutionalize the sexual revolution. Originally, as McDowell shows, the right of privacy was suggested in an article co-authored by Louis Brandeis as a tort doctrine to protect people from an intrusive press. On the Court, Brandeis tried to elevate privacy to constitutional status in a dissent extolling “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” That was surely merely empty rhetoric, for, as McDowell notes, the right is “utterly at odds with the very possibility of constitutional self-government.”

  The Court, in a 1965 opinion by Justice William O. Douglas, concocted a constitutional right to “privacy” in order to strike down a Connecticut law prohibiting the use of contraceptives5—a law that, for obvious reasons, was applied rarely and then only against birth control clinics that advertised contraceptives. The word “privacy” has such favorable connotations, however, that it has proved impossible to confine it or to convince Americans that the doctrine had little to do with privacy and everything to do with freeing judges to do whatever they want. The question, Privacy to do what?, has little resonance. It was not long before the Court began to answer that question. More laws regulating sexual morality were invalidated, and the trend reached a crescendo with the 1973 invention by the Court of a right to abortion. So solicitous has the Court been in advancing abortion rights that it has even struck down laws requiring that parents be given notice when a minor child seeks an abortion, and it has refused to allow states to ban even partial-birth abortions, which are the moral equivalent of infanticide.

  One might suppose that any number of Court decisions, particularly the right to abortion invented in Roe v. Wade,6 would qualify as the high-water mark of judicial arrogance, but McDowell awards that distinction to the separate concurrence of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey (1993),7 upholding a somewhat modified abortion right. “What was most shocking” about that opinion, McDowell writes, “was the utter disdain it reflected for the idea of popular government.” The concurrence said the Court has the aut
hority to “speak before all others for [the people’s] constitutional ideals,” and, moreover, the people’s willingness to accept what the Court tells them are their ideals is what gives “legitimacy to the people as ‘a nation dedicated to the rule of law.’” Why, one might ask, must the citizens of a free republic accept what the Court tells them are their own ideals? And why is it the legitimacy of the people that is in question rather than the legitimacy of the Court? It reminds one of Bertolt Brecht’s jest: the people have lost the confidence of the government and a new people must be formed. McDowell, like Graglia, is not optimistic about the future: “as history shows, there is no reason to think that the expansion of . . . judicially created right[s] has reached its limits.”

  Terry Eastland provides a comprehensive survey of the Supreme Court’s religion decisions under the First Amendment. Whereas much of modern constitutional jurisprudence, as Graglia and McDowell demonstrate, consists of rights conjured up out of thin air, Eastland shows that the Court has so deformed a real constitutional provision that it bears little discernible relation to anything the framers and ratifiers understood themselves to be saying.

  Of the two religion clauses—the one forbidding an establishment of religion and the other guaranteeing its free exercise—it is the establishment clause that has suffered the most abuse. Both the text and the history of its adoption show conclusively that what was to be placed beyond Congress’s power was the establishment of churches on the then-familiar European model. The anti-establishment clause manifested no hostility to organized religion as such nor any intention to forbid Congress from aiding religion generally. No amount of historical demonstration of what was intended8 has been capable, however, of deflecting a majority of the justices from antagonism to religion. Striking down a Pennsylvania law requiring that the school day begin with a reading from the Bible and with student recitation of the Lord’s Prayer, though a student could be excused on the written request of a parent, the Court said that this “breach of [constitutional] neutrality that is today a trickling stream may all too soon become a raging torrent.”9 Have the justices no knowledge of history? For a century and a half the Republic staggered along without the Court’s protection from the perils of religion, and the trickling stream never achieved even the status of a sluggish creek. Vibrant religion there was, but no hint of theocracy or religious war. Now, under the tutelage of the Court and the American Civil Liberties Union, religious symbols and speech must everywhere be suppressed.