Bork barks back

Robert Bork, once nominated to the Supreme Court by Ronald Reagan and eponymous victim of “borking” by the confirmation process, attacks the court’s record over the last 30 years because in his view it has promoted “moral chaos.”

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.

Two qualifications should apply here.  There’s no question that every democracy must rest on shared moral principles; that notion, maintained by all the Founding Fathers, is the theme of this blog.  However, Ango-American democracy has been, since John Locke, pluralistic:  it admits a broad, though finite, variety of interpretations of our shared principles, and it requires tolerance of differing paths to salvation.

Second, the glorification of the individual as the fountainhead of sovereignty is as much a conservative ideal as it is a “left-liberal liberationist impulse.” Libertarianism appeals to ideologies left and right. And, as Bork implies, it invariably (and logically) leads to hedonism: that is, to setting the satisfaction of private desires above all other goods.  That the Supreme Court has been nudging us in that direction is difficult to deny.


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