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andyfox
07-05-2005, 11:03 PM
. . . is the title of an article written by Robert Bork in today's Wall Street Journal.

Bork believes we are on the Road to Perdition, with education, sexual mores, morality, and the judiciary all in the grip of an alien modernist and secular culture. [His new book will be entitled "A Country I Do Not Recognize: The Legal Assault on American Values."]

Interestingly, the WSJ editorial next to Judge Bork's article talks about Senator Kennedy's "end-of-days rhetoric." By this, I assume they mean Senator Kennedy's warnings about the dire consequences of what he sees as a too conservative appointment to the court to replace retiring Justice O'Connor.

But it is Bork who engages in end-of-days rhetoric. He has already authored "Slouching Toward Gomorrah: Modern Liberalism and American Decline." In today's article, he quotes Federalist #2, wherein John Jay said, "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 manenrs and customs. . . ." Bork does not recognize that this was hogwash when it was written, part of the authors' (Jay, Madison and Hamilton) sell-job for the Constitution. From this, Bork imagines a "large body of common moral assumptions" that, according to him, the recent Supreme Court has been eroding.

Among the court's crimes, according to Bork: it has "weakened the authority . . . of churches "[he says nothing about synagogues or institutions of other religions]; it has "denigrated marriage and family"; it has "destroyed taboos about vile langue in public"; it has "protected as free speech the basest pornography"; it has "weakened political paties"; it has "whittled down capital punishment, on the path, apparently, to abolishing it entirely"; it has "mounted a campaign to normalize homosexuality, culminating soon, it seems obvious, in a right to homosexual mariage"; it has "permitted racial and gender discrimination at the expense of white males."

Bork sees "moral anarchy" in this "left-liberal liberationist spirit of our times." Our legacy of a common morality has been done in by the court because it has "departed from the original understanding of the principles of the Constituion."

Well the man has one of the great minds of 1789. He fails to realize that the world of a "common moral legacy" that he missed was the world that kept blacks in slavery, women as property, and homosexuals beyond the pale of polite society. [His worry about the woe that has befallen "white males" and his particular venom against the justices that are seeking to "normalize homosexuality" and keep the good citizenry from outlawying sodomy gives away the game.] His idea that there is one original understanding of the principles of the Constitution is flawed. He bemoans that that the Court has become a political institution instead of a legal institution without understanding that the Constitution itself was a political document, pieced together out of compromise precisely because the "one united people" that "Providence" had given to "this one connected country" never existed. [Bork himself recognized this in an earlier life: to wit, from a 1968 opinion he wrote: "It is naive to suppose that the Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning, to work at 'finding the law' instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court."] He longs for a Utopia of his own making, in which gays are subjugated, white males unchallenged on top of the social and economic ladder, pornography, as he defines it, outlawed, bad words, as he defines them, punished, and religious culture, but just his "Anglo-Protestant culture," ruling the day.

That's not an America I recognize. If the next Supreme Court nominee has these views, I would welcome another "borking." One suspects, though, based on plenty of evidence, that the Democrats will wimp out. They're very good at complaining, very bad at actually doing something.

scalf
07-05-2005, 11:24 PM
/images/graemlins/grin.gif..bork, aka "capt. toke"

a fine judge of good reefer..

lol

gl

/images/graemlins/frown.gif /images/graemlins/club.gif

andyfox
07-05-2005, 11:25 PM
. . . would be an authoritarian nightmare. According to Bork, "no activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral."

If the government can decide that it can prohibit behavior solely because "society" thinks it to be immoral, then all they have to do is declare something to be immoral and they have justified whatever legal coercion is necessary to prevent that action. Lenin would be proud.

Bork asks, "Why is sexual gratification more worthy than moral gratification?"

Well, the first requires only that an individual control his or her own actions, while the second requires that the power of the state be used to control the actions of others. That is precisely the line drawn between individual rights and governmental authority, and the question of where to draw that line is the overriding concern of the Constitution and especially the Bill of Rights. Thomas Jefferson had one answer to this question, that the authority of government extends only to those actions that are injurious to others or deprive them of their equal rights.

Bork claims to be an originalist. But he invents meanings to the Constituion that suit his predilections, precisely the "crime" that he atributes to the non-Rehnquists, non-Scalias, and non-Thomases on the current court. To wit:

"Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law."

Where, exactly, does Bork see that in the text of the First Amendment?

This is one dangerous man. We should be thankful that he was "borked" when he was nominated for the Supreme Court.

natedogg
07-06-2005, 12:00 AM
One thing the hysterical do-gooders on both sides fail to understand is that judges do not mold the society's values and mores.

The rulings of a judge are all about the demarkation of boundaries. In other words, they rule on the legality of behaviours, what is legal and not legal, rather than what is valued and not valued.

All the 14th amendments in the world could not help the South to integrate peacefully. It took a long and slow transformation of our society on its own to the come to the point where we despise racism (most of us at least). You can't legislate morality, nor can a society's morals disappear due to lack of judicial support.

Bork is a whack job but his views on the role of the judiciary, and its influence, are not far removed from many modern liberals, who see the judiciary as the saviour who will deliver us from undesired social constructs and extant prejudices, but these liberals *also* fail to understand the same thing Bork is missing.

Judges cannot make people love gays just by ruling that gays can get married, and similarly judges cannot rewind the clock on society just because they might happen to strike down certain laws (I'm thinking with glee of the possibility that racial quotas, and certain Commerce Clause-derived abuses will be struck down someday).

Society will not suddenly revert to barbarism just because some judge decrees that the govt cannot enforce a moral view. And that is what we're talking about there. Bork wants to legislate gays into the closet, and the other side of the coin is that many liberals aren't liberal at all, they have plenty of their own morals that they seek to impose via authoritarianism BY COURT ORDER.

natedogg

sam h
07-06-2005, 12:14 AM
Nice post Andy.

Bork is an ass. I think one way of looking at all of the madness you eloquently critiqe is that people like him face a real Catch-22. On the one hand, they have always, at least rhetorically, rallied around the defense of individual liberties. On the other hand, on social issues the country has been voluntarily moving steadily "left" for forty years. Despite America's absurd religiosity, in aggregate these "moral conservatives' are on the wrong side of history.

So what happens when defending individual liberties means allowing this leftward movement on social issues to continue? Individual liberties stop being defended by the moral conservatives. Moral Dogma > Liberty. This is also the case with Scalia, although much less blatantly.

Triumph36
07-06-2005, 12:41 AM
I'm far from a moral conservative, but I do feel like they have a point on this issue. I don't think you can stop the forces of society once they start - that's naive and reactionary. But I do think there's something to a nation that is mostly on the same page 'morally', whatever that means, and I think the recent trend in liberalism to forgo judgement could be dangerous. Problem is, what criteria do we have to judge on these moral matters? It seems like the right is working from the Bible as a moral judge, and the left is working from ensuring that whatever isn't illegal is morally permissible. I don't think either is quite correct.

Zeno
07-06-2005, 01:29 AM
Some useful 'spacing' edits:



Well the man has one of the great minds of 1789. He fails to realize that the world of a "common moral legacy" that he missed was the world that kept blacks in slavery, women as property, and homosexuals beyond the pale of polite society.

As an aside, his worry about the woe that has befallen "white males" and his particular venom against the justices that are seeking to "normalize homosexuality" and keep the good citizenry from outlawying sodomy gives away the game.

Mr. Bork's idea that there is one original understanding of the principles of the Constitution is flawed. He bemoans that that the Court has become a political institution instead of a legal institution without understanding that the Constitution itself was a political document, pieced together out of compromise precisely because the "one united people" that "Providence" had given to "this one connected country" never existed.

It is telling that Bork himself recognized this in an earlier life: to wit, from a 1968 opinion he wrote: "It is naive to suppose that the Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning, to work at 'finding the law' instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court."

Bork longs for a Utopia of his own making, in which gays are subjugated, white males unchallenged on top of the social and economic ladder, pornography, as he defines it, outlawed, bad words, as he defines them, punished, and religious culture, but just his "Anglo-Protestant culture," ruling the day.

__________________________________________________ ___

Paragraphs are useful. You could have worked in the wonderful word 'anathema' into your original post also. In one way or another it would have been very useful.

Good post, I'm sure John Cole would have more useful comments and suggestions.

-Zeno

Zeno
07-06-2005, 01:48 AM
[ QUOTE ]
"no activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral."


[/ QUOTE ]

This is rip roaring good stuff Andy. To paraphrase Cicero: There is nothing so absurd but some lawyer has said it.

[ QUOTE ]
Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law."


[/ QUOTE ]


[ QUOTE ]
Where, exactly, does Bork see that in the text of the First Amendment?


[/ QUOTE ]


Mr. Bork, like so many people, sees what he wishes to see and believes what he wishes to be true, not what is true or factual.

Here is some political speech that Mr. Bork, apparently, would object to; from the Declaration of Independence:

" Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. "


-Zeno

[censored]
07-06-2005, 02:21 AM
I would like to live in Borkworld.

Phat Mack
07-06-2005, 04:35 AM
[ QUOTE ]
You could have worked in the wonderful word 'anathema' into your original post also.

[/ QUOTE ]

We're talking about Bork. I think 'execration' would be more appropriate.

JoshuaMayes
07-06-2005, 10:35 AM
[ QUOTE ]
/images/graemlins/grin.gif..bork, aka "capt. toke"

a fine judge of good reefer..

lol

gl

/images/graemlins/frown.gif /images/graemlins/club.gif

[/ QUOTE ]

Bork didn't get rejected because he smoked weed, Douglas Ginsburg did /images/graemlins/confused.gif.

andyfox
07-06-2005, 01:27 PM
Yes, much better than mine. I could use a good editor. Maybe I should call Mason to see who he uses . . . /images/graemlins/smile.gif

John Cole
07-06-2005, 06:34 PM
[ QUOTE ]
Maybe I should call Mason to see who he uses . . .

[/ QUOTE ]

Surely, you jest.

Saw this a couple days ago: Writing Tudor Available (and the person soliciting work claimed thirteen years experience). Hi guys!

scalf
07-06-2005, 07:15 PM
/images/graemlins/grin.gif john cole:

you live on in famy...

your spirit still lurks these hallowed oot's and john cole is still regarded as the Gold Standard..

lol

but true

gl


/images/graemlins/smile.gif /images/graemlins/grin.gif /images/graemlins/club.gif

Boris
07-06-2005, 07:24 PM
great post. I shared roughly the same sentiments when I read the piece in the WSJ yesterday.

andyfox
07-06-2005, 08:08 PM
Hi, John. What a joy to see your name on my screen. Hope you stay a while.

Regards,
Andy

Phat Mack
07-06-2005, 09:59 PM
[ QUOTE ]
[ QUOTE ]
Maybe I should call Mason to see who he uses . . .

[/ QUOTE ]

Surely, you jest.

Saw this a couple days ago: Writing Tudor Available (and the person soliciting work claimed thirteen years experience). Hi guys!

[/ QUOTE ]

I read somewhere, maybe in an L. M. Boyd column, that Henry VIII wrote Greensleeves. Maybe it was his ad.