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Notes
on Books by
One
of the contributors, Lino A. Graglia, a professor at the University of Texas Law
School, argued that the Court has abandoned its assigned role--interpreting the
Constitution--and now pursues “policy choices” designed to empower an elite,
enlightened minority of like-minded liberals.
To Graglia, "Virtually every one of the Court's rulings of
unconstitutionality over the past fifty years—on abortion, capital punishment,
criminal procedure, busing for school racial balance, prayer in the schools,
government aid to religious schools, public display of religious symbols,
pornography, libel, legislative reapportionment, term limits, discrimination on
the basis of sex, illegitimacy, alien status, street demonstrations, the
employment of Communist-party members in schools and defense plants, vagrancy
control, flag burning, and so on—have reflected the views of this same elite.
In every case, the Court has invalidated the policy choice made in the ordinary
political process, substituting a choice further to the political left.
Appointments to the Supreme Court and even to lower courts arc now more
contentious than appointments to an administrative agency or even to the
Cabinet—matters of political life or death for the cultural elite—because
maintaining a liberal activist judiciary is the only means of keeping
policymaking out of the control of the American people."
Another
contributor to the Commentary symposium, Judge Robert H. Bork, had
earlier and more amply set forth his views in Coercing Virtue:
The Worldwide Rule of Judges (
When
the “inner ring” consists of irreligious intellectuals, utopian ideologies
replace theological dogmas and guide their thinking.
As Max Weber noted, in The Sociology of Religion, intellectuals
who reject religion easily embrace “the economic, eschatological faith of
socialism.” Most 20th century secular utopians have embraced a
socialist agenda and seek to attain it through political means.
“The socialist impulse remains the ruling passion of the New Class”
(p. 6), though it now focuses on cultural issues such as sex and education
rather than economics. Modern
“liberalism,” with its commitment to social change through political
coercion, is thoroughly socialistic, Bork says.
And it is equally authoritarian, for the cultural elites, everywhere
failing to persuade the masses to democratically embrace their values, now seek
to impose them through the courts.
Consequently,
“What judges have wrought is a coup d’etat--slow-moving and genteel, but a
coup d’etat nonetheless” (p. 13). They
also lend support to a collage of special interest groups--environmentalism,
feminism, multiculturalism--which share a socialistic commitment to reshaping
the world. Bork’s view was earlier
espoused by the esteemed sociologist Robert Nisbet, who
noted that “’crusading and coercing‘” courts have preempted power
so as to precipitate “the wholesale reconstruction of American society,”
aiming to implement what Jean-Jacques Rousseau and Jeremy Bentham championed:
“sovereign forces of permanent revolution” (p. 10).
This revolution, embodied in activist judges, is both political and
cultural and has significantly, if subtly, replaced “traditional moralities
with cultural socialism” (p. 137).
Of
particular interest to Bork is the internationalization of this agenda.
He devotes two chapters to
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In
time, the young radicals took their ideals and became “part of the chattering
class, talkers interested in policy, politics, and culture.
They went into politics, print and electronic journalism, church
bureaucracies, foundation staffs, Hollywood careers, public interest
organizations, anywhere attitudes and opinions could be influenced” (p. 51).
They established a variety of special interest groups--environmental,
feminist, abortion rights, ethnic, etc.
And they are leading us, Bork believes, down the slope to moral
degradation,
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Judge
Bork also wrote an essay for a symposium that was provocatively titled “The
End of Democracy?” and published in the journal First Things (November
1996). At the heart of the
controversy, says Richard John Neuhaus, the journal’s editor-in-chief, is the
degree to which we still have a constitutional republic.
Neuhaus once attended a conference wherein a legal scholar concluded his
presentation with the assertion that ‘we are no longer living under the
Constitution of the
The
essays elicited a flurry of controversy, with dozens of responses printed in
various periodicals--and in subsequent issues of First Things.
All the relevant materials, plus a lengthy “Anatomy of a Controversy”
by Richard John Neuhaus (including the anecdote regarding the Constitution cited
in the prior paragraph), were collected into a single volume, edited by Mitchell
S. Muncy, entitled The End of Democracy?
The Celebrated First Things Debate with Arguments Pro and Con”
(Dallas: Spence Publishing
Company, 1997).
The journal’s editors, introducing the essays, wondered “whether we
have reached or are reaching the point where conscientious citizens can no
longer give moral assent to the existing regime” (p. 3).
The term “regime” ignited a storm of protest, but the editors used it
by design to indicate the possibility that “we the people” no longer rule
our own country. “Democratic”
means too routinely fail to attain the people’s ends and policies they clearly
oppose, such as unrestricted abortion rights, are routinely imposed through
judicial fiat, as was especially evident in two 1992 Supreme Court decisions:
Romer v. Evans and Planned Parenthood v. Casey.
Such
decisions prompted a dissenting Justice Antonin Scalia to declare:
“Day by day, case by case, [the Court] is busy designing a Constitution
for a country I do not recognize” (p. 10).
In Romer, the Court overturned the clearly expressed will of the
people of
Russell
Hittinger, a professor of law at
Hadley Arkes, a professor of law at Amherst College when the essays were
published, carefully considers the implications of Romer v. Evans, the
Supreme Court decision which nullified a constitutional amendment secured
through a referendum whereby the people of Colorado sought to invalidate the
preferential treatment homosexual activists had secured in certain localities.
This decision illustrates the propensity of judges to “advance the
interests of gay rights and other parts of the liberal agenda” (p. 31).
Ultimately, Arkes insisted, the gay activists want to redefine the family
and legalize same-sex marriages. This
is evident in the words of Nan Hunter, a lesbian activist Bill Clinton
appointed, in 1993, “deputy general counsel/legal counsel” in the Department
of Health and Human Services, who sought “to dismantle the legal structure of
gender in every marriage’” (p. 35). Such
radical changes, of course, cannot be won through the democratic process,
whenever the people are allowed to express and implement their convictions.
Only by enlisting an “enlightened” elite, only by pushing their
agenda through the courts, can gay and lesbian activists attain their goals.
In
“Kingdoms in Conflict,” one of the more radical essays in the symposium,
Charles Colson argued that we are now witnessing the culmination “of a long
process I can only describe as the systematic usurpation of ultimate political
power by the American judiciary--a usurpation that compels evangelical
Christians and, indeed, all believers to ask sobering questions about the moral
legitimacy of the current political order and our allegiance to it” (p. 41).
Supreme Court decisions, especially those securing abortion rights,
cannot be prod devout citizens to ponder their allegiance to a regime
responsible for the deaths of millions of unborn children.
Citing theologians such as Calvin and Aquinas, who endorsed Augustine‘s
aphorism that “an unjust law is no law at all,” Colson wonders how much more
must take place before Christians begin to challenge and even disobey their
masters.
Sharing
Colson’s discontent, Robert P. George, a professor of politics at
These
five essays constitute the heart of The End of Democracy.
The rest of the book contains a variety of responses, ranging from
letters to First Things to lengthy essays published in other periodicals.
Most of them are quite critical, and some (Peter Berger and Gertrude
Himmelfarb) on the editorial board of First Things resigned lest they be
implicated in the questioning of
What
becomes clear, in both the original essays and the responses to them, is the
fact that abortion deeply divides this nation.
In an essay for The National Review, a “neoconservative”
Jewish writer, William Kristol explained: “the
truth is that abortion is today the bloody crossroads of American politics.
It is where judicial liberation (from the Constitution), sexual
liberation (from traditional mores), and women’s liberation (from natural
distinctions) come together. It is
the focal point for liberalism’s simultaneous assault on self-government,
morals, and nature. So, challenging
the judicially-imposed regime of abortion-on-demand is key to a conservative
reformation in politics, in morals, and in beliefs” (p. 94).
Kristol’s analysis is amplified by Hadley Arkes, on of the original essayists, in an explanation of their intent. Rooted in the Declaration of Independence’s appeal to the natural law--that by nature all men are entitled to certain rights, especially the right to life, he and other contributors “spoke no treason, and they took care not to incite people to a course of lawlessness. But . . . we come to the very edge when our government tells us that the killing of unborn children must be regarded as a private right; that we may have no proper concern about the terms on which killing is carried forth in our neighborhoods; and that the meaning of ‘homicide’ is no longer part of the business of people living together in a republic” (p. 169).