Of all the manifold aspects of cultural decay, one of the most difficult to recognize is the corruption of constitutional law. When one thinks of the Supreme Court, or even of the judiciary overall, the image that comes to mind is a procession of old, graying men in black robes, blowing their noses into crusty handkerchiefs as they read dusty legal tomes. They sit on their lofty benches, refusing to budge from ancient precedent and the letter of the law. Humorless curmudgeons, they are capable of mercy only if the accused implores them, crying his eyes out in the process.
Of course, nothing could be further from the truth. The persistence of this myth is one of the reasons why so much of the population is unaware that the Supreme Court has systematically raped the Anglo-American legal tradition as expressed in the Constitution. The Court, along with its enablers in the government, the media, and the law schools, has helped pave the way for the politically-correct, socialist nightmare that is now staring us in the face.
If anyone understands this phenomenon down to its minutest details, it is Robert Bork, one of the world’s most eminent and erudite legal scholars. In 2005, Bork assembled half a dozen articles on the subject from various authors (including himself) and published them in A Country I Do Not Recognize: The Legal Assault on American Values.
The title of the book is taken from a dissenting opinion written by Justice Antonin Scalia in 1996:
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 Court] is busy designing a Constitution for a country I do not recognize.
The crux of the matter, from a strictly legal point of view, is the invention by the Court of rights that do not exist in the Constitution. Emblematic is the “right to privacy,” which has been used to disqualify virtually any governmental limits on individual behavior. A watershed was the 1965 case Griswold v. Connecticut, involving that state’s limitations on public birth-control clinics. The statute in question offended the justices’ progressive spirit, but they were faced with the annoying fact that it was the product of the democratic process. After all, the law was enacted by the people of Connecticut, in the body of their state legislature.
The Court invalidated the state law by inventing a “right to privacy.” As the legal scholar Lino Graglia writes in his article:
The inconvenient fact that there was no relevant constitutional right [Justice William] Douglas overcame by imagining and enacting a new one, the right of “privacy.” Although this right could not be found in the Bill of Rights itself, it could be found, Douglas explained, in the “penumbras, formed by emanations” from Bill of Rights provisions.
How the Bill of Rights has emanations, and how these emanations form penumbras, is beyond me. Then again, I never attended an Ivy League law school.
The Court moaned that the Connecticut law violated “a right of privacy older than the Bill of Rights—older than our political parties, older than our school systems.” This from a Court that has consistently mocked legal and moral principles precisely because they were said to be old and outdated. The irony is excruciating.
Graglia draws the following conclusion:
Griswold…exemplifies Supreme Court decision making on matters of fundamental social importance on no basis other than the justices’ arrogant confidence in the rightness of their policy preferences and willingness to impose them on their fellow citizens. Because this constitutes an obvious abuse of office, convention requires that they make a pro forma attempt to show that the decision follows from the Constitution. This impossible task requires the permissibility of standards of reasoning in Supreme Court opinions that would not be acceptable in a discipline that aspired to the level of intellectual respectability of astrology.
Today, we take for granted the Court’s interference in state law. We have been conditioned to forget one of the founding principles of the republic: that interference by Washington in the affairs of the states should be limited to extreme cases and strictly defined realms, such as national defense. It is no accident that the Tenth Amendment to the Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The revolutionary ruling in Griswold was followed by many others, such as Roe v. Wade, that amounted to the Supreme Court installing itself as America’s super-legislature, invalidating laws at will, based on nothing more than its own moral and political predilections. As Graglia puts it:
Over the past half-century the justices have chosen to make themselves the final lawmakers on most basic issues of domestic social policy in American society. These include issues literally of life and death, as in the Court’s decisions on contraception, abortion, capital punishment, and assisted suicide; issues of public order, as in its decisions on criminal procedure, public demonstrations, and vagrancy control; and issues of public morality, as in its decisions on pornography and homosexuality…In essence, the Court now performs in the American system of government a role similar to that performed by the Grand Council of Ayatollahs in the Iranian system: voting takes place and representatives of the people are elected as lawmakers, but the decisions they reach on basic issues of social policy are permitted to prevail only so long as they are not disallowed by the system’s highest authority.
The peak of this ayatollah-ism may have been the Court’s rulings in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) and Lawrence v. Texas (2003). In Planned Parenthood, the Court formulated its infamous “mystery passage”:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
In his article, Gary McDowell of the University of Richmond has this to say on the subject:
The Court insisted that lying at the heart of the idea of liberty provided in the Constitution “is the right to define one’s own concept of existence, of the universe, and of the mystery of human life.” … The essence of self-government is the right of the people to engage in public deliberation over what is right and what is wrong and to decide how those rights and wrongs are translated into what is deemed legal and illegal. In the end, the elevation of a judicially created notion of privacy that can be used to trump nearly every conceivable collective moral judgment made by the people undermines constitutionalism in any meaningful sense.
The icing on the cake was the decision in Lawrence v. Texas, in which the Court struck down state laws against homosexual sodomy. In its reasoning, the Court effectively gave carte blanche to any subjective notion of “freedom,” without requiring a basis in law. As McDowell explains:
Justice Anthony Kennedy insisted that the idea of liberty in the Constitution’s due process clauses is not limited to protecting individuals from “unwarranted governmental intrusions into a dwelling or other private places” but has “transcendent dimensions” of a more moral sort. Properly understood, this notion of liberty “presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct,” whether those are mentioned in the Constitution or not…The essence of the Constitution for Justice Kennedy and his ilk is that it falls to “persons in every generation [to] invoke its principles in their own search for greater freedom.” Put more simply, there is nothing permanent in the Constitution, no fundamental, unalterable principles; its meaning comes only from the changing moral views of successive generations of justices.
I highly recommend this readable and relatively short book, which gives a basic primer on one of the most crucial challenges facing Western civilization today. I have only touched on a sliver of the topics covered. There are fascinating discussions of affirmative action, the escalating abuse of the Fourteenth Amendment, the Court’s attack on freedom of religion, the encroachment of international law and NGOs on American sovereignty, and the overlap of Supreme Court doctrine with Leftist political dogma.
I leave the final word to Robert Bork:
The cases discussed in this book demonstrate that a majority of the Court is willing to make decisions for which it can offer no intelligible argument. There is, therefore, a sharp decline in intellectual honesty and integrity in the law. Perhaps worse, generations of law students are taught by their professors and by the casebooks they study that constitutional law is not an intellectual discipline but a series of political impulses…Some academics, surveying the wreckage made of constitutional law, approvingly call it postmodern jurisprudence. Postmodernism has been defined as an uneasy alliance between nihilism and left-wing politics…Those who deny moral truth frequently simultaneously take uncompromising positions on their own versions of such truth, and those positions are invariably to the left of the American center.
[Quotes taken from Robert H. Bork (ed.), A Country I Do Not Recognize: The Legal Assault on American Values, Stanford, Hoover Institution Press, 2005, pp xi, 18-19, 20, 2, xviii, 58-60, 58, and xxv, respectively.]