- The Washington Times - Monday, August 29, 2005

A COUNTRY I DO NOT RECOGNIZE: THE LEGAL ASSAULT ON AMERICAN VALUES

Edited by Robert H. Bork, Hoover, $25 cloth, $15 paper, 196 pages

Like Humpty Dumpty, the Supreme Court has been making the Constitutionand statutes mean whatever it wants them to mean for decades. Robert H. Bork’s contribution has been to assail that lawlessness which has been customarily employed to cram the values of an academic and media elite down the throats of the American people. His editing of a collection of essays on the Supreme Court’s interpretive waywardness in “A Country I Do Not Recognize” should disillusion any reader inclined to glorify the justices.

Mr. Bork speaks with authority. In 1987, the Senate defeated his nomination to the Supreme Court despite his dazzling credentials: solicitor general of the United States; judge on the U.S. Court of Appeals for the District of Columbia Circuit; and author and professor of constitutional and antitrust law. The academic and media glitterati distorted Mr. Bork’s views to make him appear as an advocate of segregation, back-alley abortions, unsafe work places and the subjugation of women.

He was none of the above. What the nominee recognized was that the rule of law in the judiciary and the other branches of government is indispensable to the preservation of all rights. If the process is tainted, then so is the end product.

As Mr. Bork explains, Supreme Court opinions now violate basic standards of intellectual honesty and reason in zealous pursuit of politically correct results. Thus, in Lawrence v. Texas (2003), the high court found a constitutional right to homosexual sodomy by wrenching from the 14th Amendment a right “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That blather, as Mr. Bork notes, would justify the recognition of a right to “incest, prostitution, embezzlement, or anything else a person might regard as central to his dignity or autonomy,” including jihad. The stopping point is not the law, but the values and preferences of the liberal elite.

In his chapter, “Constitutional Law Without the Constitution,” Professor Lino A. Graglia of the University of Texas chronicles the train of lawless interpretations that have beset Supreme Court decisions. He questions the legitimacy of judicial review, the power of the Supreme Court to declare actions of Congress, the president and state governments unconstitutional. He argues that the justices are unaccountable to the people, are inexpert policy-makers and are intellectually dishonest and arrogant.

According to Mr. Graglia, the nation would be better governed by unconstrained popular majorities. He urges that, “The function of law in a society, at least a democratic society, is to express, cultivate and enforce the values of the society as understood by the majority of its people.” But Mr. Graglia’s remedy for the Supreme Court’s waywardness is unconvincing because he fails to examine the history of tyranny by the majority, for example, Jim Crow. He makes no attempt to establish that popular rule would prove more enlightened than the Constitution’s separation of powers.

Gary L. McDowell, professor of law at the University of Richmond,exposesthe Supreme Court’s fabrication of a “right to privacy” untethered to the Constitution in his chapter, “The Perverse Paradox of Privacy.” Mr. McDowell demonstrates that the modernSupremeCourt’s imposition of its own social values under a right to privacy banner is no more legitimate than was the pre-New Deal era in which the justices insisted that the free enterprise principles of Adam Smith and social statics of Herbert Spencer were constitutional commands.

Terry Eastland, publisher of the Weekly Standard, demonstrateshowthe Supreme Court has turned the religious neutrality principle into a secular sword against religion in his chapter, “A Court Tilting against Religious Liberty.” Mr. Eastland exposes the intellectual chaos and secular biases that infect the high court’s church-state rulings. He urges the justices to acknowledge the high importance the Founding Fathers placed on religion as a cultivator of morality, justice and ethics. He proposes the understandingofJames Madison as the yardstick for expounding the religion clauses: “[N]o one should be extended privileges because of religion, nor subjected to penalties or disabilities.”

David Davenport’s “New Diplomacy Threatens American Sovereignty” and “The Dangerous Myth of Universal Jurisdiction” by Lee A. Casey and David B. Rivkin Jr. explore the folly of importing international law into American jurisprudence. If “A Country I Do Not Recognize” does not provide the solution for counter-constitutional rulings of the Supreme Court, it unerringly portrays the problem.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has prepared an Advice & Consent Handbook on Supreme Court appointments and the judicial filibuster.

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