Supreme Capitulation

The Orange County Register's Alan Bock laments (free subscription req'd.) the ugly reality of contemporary constitutional law. If a liberty interest is not deemed "fundamental" by the courts or if a state action does not affect those within a "suspect classification," then the court system provides little protection for those with grievances against government action. Legislation which does not get "strict scrutiny" under the court's decisional thresholds will always be a legitimate exercise of goverment power that gets little more than a final, formal procedural imprimatur from the judiciary:

Beyond three decisions or so, it's hard to find rulings in the Supreme Court term just ended that didn't amount to endorsements of massive increases of power for government and significant intrusions on individual rights that most Americans thought were part of our birthright. During this session the court simply didn't do what courts were designed to do in our tripartite constitutional system --exercise vigilance about abuses of power in the other two branches.

Many conservatives and some liberals who decry judicial activism amount to majoritarians whose deference to the legislative branch is almost complete. Judicial restraint, for people like Robert Bork or Justice Antonin Scalia, amounts to allowing the legislature to do almost anything it wants -- the usual test is that legislation must have a "rational relationship" to its stated purpose, which means in practice that if some deluded college sophomore or self-interested city council member thinks it might work, that's good enough.

As Bock notes, that is just fine with Robert Bork -- who penned a column (subscription req'd.) in yesterday's Wall Street Journal that sees the judicial system as a corrosive arbiter of what is acceptable in American culture:

The Court's philosophy reflects, or rather embodies and advances, the liberationist spirit of our times. In moral matters, each man is a separate sovereignty. In its insistence on radical personal autonomy, the Court assaults what remains of our stock of common moral beliefs...

Consider just a few of the Court's accomplishments: The justices have weakened the authority of other institutions, public and private, such as schools, businesses, and churches; assisted in sapping the vitality of religion through a transparently false interpretation of the establishment clause; denigrated marriage and family; destroyed taboos about vile language in public; protected as free speech the basest pornography, including computer-simulated child pornography; weakened political parties and permitted prior restraints on political speech, violating the core of the First Amendment's guarantee of freedom of speech; created a right to abortion virtually on demand, invalidating the laws of all 50 states; whittled down capital punishment, on the path, apparently, to abolishing it entirely; mounted a campaign to normalize homosexuality, culminating soon, it seems obvious, in a right to homosexual marriage; permitted racial and gender discrimination at the expense of white males; and made the criminal justice system needlessly slow and complex, tipping the balance in favor of criminals. Justice O'Connor, a warm, down-to-earth, and very likeable person, joined many, though not all, of these bold attempts to remake America. Whatever one may think of these outcomes as matters of policy, not one is authorized by the Constitution and some are directly contrary to it. All of them, however, are consistent with the left-liberal liberationist impulse that advances moral anarchy.

All of this came after a misty quote from Federalist No. 2 that celebrates the unity of the American people -- "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." Whatever his yearning for the halcyon days of colonial America, Bork's vision belies the reality of contemporary America, which is an increasingly multi-racial, multi-cultural and secular society that places a premium on individualism and social mobility. There is a general openness that comes with the free movement of goods, persons and services across state and national borders.

Bork's response? To yell "STOP!" and champion greater government power in order to facilitate the engineering of society from those forces and mechanisms that are inherently anti-social and amoral. With the exception of the Michigan law school racial preferences case and the decision upholding McCain/Feingold, each of the decisions Bork castigates operated as a limitation on government power, which is why we have constitutions -- state and national -- in the first place.

Thankfully, we live in a constitutional republic with three separate branches to disperse centralized power instead of the "mob rule" that Bork advocates by making legislative determinations unassailable. Recall that this is the same fellow who wrote an entire chapter in his most famous volume entitled, "The Case for Censorship." If anything is vile, it is Bork's naked contempt for individual rights.

Now if only the Supreme Court would do its job more thoroughly. What is needed is a healthy dose of libertarian judicial activism. Viva Justicia Field!