Skip to comments.Their Will Be Done--How the Supreme Court sows moral anarchy BY ROBERT H. BORK
Posted on 07/14/2005 1:42:51 PM PDT by cpforlife.org
What do the nomination of a replacement for Sandra Day O'Connor, constitutional law, and moral chaos have to do with one another? A good deal more than you may think.
In Federalist No. 2, John Jay wrote of America that "providence has been pleased to give this one connected country to one united people--a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs." Such a people enjoy the same moral assumptions, the cement that forms a society rather than a cluster of groups. Though Jay's conditions have long been obsolete, until recently Americans did possess a large body of common moral assumptions rooted in our original Anglo-Protestant culture, and expressed in law. Now, however, a variety of disintegrating influences are undermining that unanimity, not least among them is the capture of constitutional law by an extreme liberationist philosophy. America is becoming a cacophony of voices proclaiming different, or no, truths.
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."
(Excerpt) Read more at opinionjournal.com ...
He was a brilliant legal mind, one of the founders and Chief Justice. His views are quite valid.
More proof that nobody is perfect.
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The "Original Jurisdiction" clause in the Constitution (Article III, Section 2, Clause 2) offers a way to quickly obliterate Roe v. Wade and teach the Supreme Court a lesson it badly needs to learn: to never again invent non-existent rights in The Constitution.
-- Dr. Jack Wheeler Geopolitical strategist, who developed & inspired the Reagan Doctrine.
If anyone has not had a "firm understanding of the judicial function," it'd be Bork.
"If anyone has not had a "firm understanding of the judicial function," it'd be Bork."
Please expand on that comment.
Why do you say that?
Thus, those who saw themselves as little gods were kept busy from inventing schemes to surmount religion, reinventing society to suit their imagination, and foisting their "vision of the anointed" on the rest of society.
Jay's quote on a singular culture is and was a gross exageration even in its time. The Hudson Valley, Manhattan Island, Pennsylvania and elsewhere was predomintly dutch (as there was no Germany) and the dutch then, like every ethnic culture since, bought into the Recieved Rights of Englishmen ethos and thus helped insure the future of our nation.
What a crazy idea! Saying everybody is free and doesn't belong to society, but rather needs to make their own choices and work for their living. All I could hear as I read this line was people from Atlas Shrugged saying, "Everybody belongs to everybody else."
What is happening to the belief in individual freedom nowadays? I've come to expect the rampant attacks on it from the left, but nowadays more and more conservatives seem to be professing ideas like this that go against the spirit of individual freedom that founded this country. After reading this I'm quite glad Bork wasn't put on the court. The more people there are calling freedom the path to anarchy, the more power the state will give itself to make sure we don't have to worry about either one.
de Tocqueville's quote has nothing to do with our supreme court, nor does Bork's use of the quoted passage infer that he supports the idea of foreign sources being valid in interpreting our own Constitution. de Tocqueville's quote is in reference to governing in general.
What you appear to fail to realize is that the freedom envisioned by the founders is akin to that espoused in the Bible, that is, freedom under law. If you read this column as a whole, you also see that Bork is arguing that we all can't have our "own truth" and still have any cohesiveness. Truth is transcendent and universal.
Perhaps, no other documents came any closer to explain the thinking behind the writing and usefulness of the Constitution at the time than these Papers published and read avidly. The people of each state, those that voted on ratification, were influenced by them as by few other sources. While his role is not mentioned as much as Madison or Hamilton in their authorship, he wrote his share.
However, the Government should not be the enforcer of morality. There is the Law of God and the law of man. Forcing a man to follow the Laws laid down in the Bible will not save him, salvation can only come from an internal acceptance of God and a personal decision to follow his will. In short, whether or not there is a human law against adultery should be completely meaningless for a Christian; God has already ruled and it is to Him we must look first of all.
Going back to my original point, it is the idea that everybody belongs to society or to other people that Bork touches on that I have a problem with. If everybody belongs to themselves, then only laws that deal with individuals doing harm to other individuals have any right to exist. If, on the other hand, everybody belongs to everyone else, then paternalism becomes an issue; laws are made for "the greater good" of the people, because the government knows best. America was founded on the idea that it is individuals, not societies or any other groupings, that hold inalienable rights and these rights should only be infringed upon by the government to prevent people from infringing on one another.
Against that backdrop, the meaning of the establishment clause as it came out of conference should be crystal clear: "Congress shall make no law respecting an establishment of religion." The agency prohibited from acting is the national legislature; what it is prevented from doing is passing any law "respecting" an establishment of religion. In other words, Congress was forbidden to legislate at all concerning church establishment--either for or against. It was prevented from setting up a national established church; equally to the point, it was prevented from interfering with the established churches in the states.
Scroll down a little when you get here to read The Religious Roots of Freedom.
The individual was free to look toward, and protect, his interests in the variety of the forms of association in which he saw himself: member of his family/household, inheritor of prescriptive rights, member of a guild or craft, farmer amongst a village of farmers, congregate of his church -- in other words an individual within a small group of common interests.
As the New Whigs surmounted the Old (post french revolution) the french rationalistic individualism began to be both popularized and then manipulated. People became classes, racial and ethnic groups and other invented forms that could be looked out for (manipulated or subjugated) by the General Will.
Trying to put the modern world's view of individualism on the thinking of that century is probably very incorrect.
John Jay's sentiments were not uncommon for his day.
Many States had [protestant] religious establishements and desired to retain them and protect them from the new general government which was being created. Thus we have the 1st amendment which prohibits the Congress from establishing one Christian sect over another, for the Founders understood "religion" to mean revealed religion (Christianity). We who have come later have imbued the term "religion" with broader meaning. The sovereign States were free to establish standards for citizenship (as well as for holding public office), no matter how we might find such conditions reprehensible.
Robert Bork, in "Slouching Towards Gomorrah," states:
"--- The first part of the [second] amendment supports proponents of gun control by seeming to make the possession of firearms contingent upon being a member of a state-regulated militia. The next part is cited by opponents of gun control as a guarantee of the individual's right to possess such weapons, since he can always be called to militia service.
The Supreme Court has consistently ruled that there is no individual right to own a firearm. The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical federal government.
Now that the federal government has stealth bombers and nuclear weapons, it is hard to imagine what people would need to keep in the garage to serve that purpose. --- "
" ---- The Supreme Court has consistently ruled that there is no individual right to own a firearm. The Second Amendment was designed to allow states to defend themselves against a possibly tyrannical federal government. --- "
It's been years since I read Slouching Towards Gomorrah so I googled "Robert Bork on gun control" and there appears to be confirmation on his position towards RKBA.
I'm shocked that he his so terribly wrong on this.
It should be no real shock to realize that Bork is a confirmed State -ist. He truly believes that majority rule in a State can ignore the bill of rights; --- that States can regulate & exercise control over every aspect of our lives, liberty, or property.
Would you mind using your list and pinging my thread for me?
He was one of the authors of the Constitution, and, as Bork points out, of The Federalist Papers.
The liberty interest was defended not by Jay and his fellow Federalists, but by the Antifederalists like Patrick Henry, John Hancock, George Mason, and Samuel Adams, who insisted -- despite Hamilton's pettifogging in Federalist 84 -- on a Bill of Rights.
After ratification, Jay ascended the Supreme Court bench and promptly began handing down dicta in his opinions in which he attempted to reestablish those principia of Federalism that had been explicitly rejected by the Antifederalists and by the ratification conventions as a whole, and even by the Philadelphia Convention, such as amalgamation and relocation of sovereignty from the People in their States to some consolidated (and politically liquidated) uber-People whose "will" was expressed by the federal government as it dictated to the States (and the People, in their own name, a favorite theme of the Federalists/Republicans/Establishment ever since).
I agree wholeheartedly!
I have always maintained that the term, "respecting" means, "with respect to". IOW, the Federal legislature should "keep 'hands off' of" the subject of the establishment of religion.
Of course that goes right along with the following, 'hands off' constraint:"...or prohibiting the free exercise thereof." (which liberals studiously neglect to acknowledge).
He is following precedent in the Cruikshank and Presser vs. Illinois cases. In Cruikshank, which was a civil-rights case arising under the Force Acts after the Civil War, SCOTUS held that the States were still the guarantors of individual civil liberties and that the black plaintiffs were required to look to the State of Louisiana for their rights. Then it dismissed the charges against the Klansmen who'd been violently encouraging those plaintiffs to stay away from the polls.
In Presser, plaintiff in error argued, with former Senator Lyman Trumbull pleading his case, that the State of Illinois violated his federal civil rights by restricting the Militia rolls of the State to 8600 politically reliable names, and forbidding all other person the right to bear arms. Notwithstanding its Second Amendment arguments, the case was actually a labor-law case, in that the plaintiff and his associates were labor syndicalists whose meetings were being constantly broken up violently (with injuries) by the Chicago police, who were acting as enforcers and goons for the Chicago business community.
The Court decided for the goons and the employers right down the line, denied Presser's rights in reliance on Cruikshank and exonerated Illinois from any observance of the Second Amendment.
More recently, Lawrence Tribe of Harvard Law, Alan Dershowitz, and any number of pro-RKBA attorneys, not to mention the federal judge in the Timothy Emerson case in west Texas a couple of years ago, have opined that the language of the Second Amendment is uncompromising, that it would appear to bind the States and municipal governments in its own terms, and that it is certainly bound to the States by the privileges and immunities clause of the Fourteenth Amendment, if there were any doubt previously. Thus any reconsideration of U.S. vs. Miller (1939), which rested on Presser and Cruikshank, would have to reinspect the rotten foundations of Miller and overturn all three precedents in order to uphold the Second and Fourteenth Amendments and their guarantees of the citizen's liberty interest in the Bill of Rights.
This is just the sort of argumentative vaporing Bork rails against. The Courts have determined that it is unlawful to offend anyone engaged in morally reprehensible behavior.
It is, according to the justices, the right of every individual to insult and denegrate traditional values. It is not alright, these same justices claim, to react negatively to assaults on traditional values.
In other words, it is protected speech to pi** on the crucifix but it is not protected speech to oppose the pi**er.
Bork is absolutely correct in demanding that the atomization of values must be stopped. We are on a path of unimaginable horror. It must be ended.
GW Bush must gather the moral courage to nominate an unflinching Constitutional conservative. If he fails the Republican party will split. This is clearly the ambition of the Democrats. Their insistence that the current balance be maintained begs the question of the fundamental corruption of the current balance.
Sounds like Bork has written another winner. Definitely a book worth reading.
Concurring bump and ping.
There is a liberty interest jtullins speaks to, but in the area of moral speech, previous Courts (and, in Lawrence, this one) have pretended to cater to individual liberty as exemplified by libertines and dissidents only, and their taking the ACLU's antireligious position as the "liberty" argument begs the question of whether the persons offended by libertinism have any rights, and whether they have the right, acting as a majority, to invade the Ninth Amendment liberties of the libertines, to make public law for the common good that happens to be founded on recognized moral systems. Such as , for example, laws against polyandry, suttee, incest, rape, and sodomy.
The upholding of individual liberties does not require the dissolution of moral systems, and the self-interest of a self-actuating libertine is not necessarily the only liberty interest in play. IOW, when the Court has ruled against morals laws and in favor of libertines, it has done so in response to ACLU arguments that are less a ringing endorsement and defense of liberty, than an attack on the majority's right and power to make laws, in subtle but spiteful attainder of the majority's beliefs qua their beliefs, through ACLU's arbitrary advocacy for any contrary belief.
Gotta ping the list to this one. I thought I had already, to another posting of this article by Bork, but perhaps it was in an alternate deam existence...
I always have to read your comments slowly so my few brain cells can wrap themselves around the words properly! I wish I had been properly education. Thanks for pinging me.
Moral Absolutes Ping.
My feeble brain told me that I had already pung the list to another posting of Bork's article, but since I can only have 20 comments on my comments page (curse it!) I can't find anything anymore.
Anyway, a good article, and very enlightening comments on the thread. If Bork hasn't changed his mind about RKBA, I am actually glad he didn't make it to the SCOTUS. But everything else I've read that he's said (read "Slouching" twice, need to read his other book), I have very much appreciated.
Freepmail me if you want on/off this pinglist.
Precisely the point made by Bork. It is the liberal establishment's opposition to the dominance of ANY value system that is anathema to cultural stability.
Consider it done, Sun.
Sarah Brady agrees.. Thanks for your input.