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“A Country I Do Not Recognize” the LEGAL ASSAULT on AMERICAN VALUES This Book Is a Publication of the Hoover Institution’S “A Country I Do Not Recognize” THE LEGAL ASSAULT ON AMERICAN VALUES This book is a publication of the Hoover Institution’s Initiative on American Individualism and Societal Values The Hoover Institution gratefully acknowledges earhart foundation tad and dianne taube taube family foundation for their generous support of this book project. “A Country I Do Not Recognize” THE LEGAL ASSAULT ON AMERICAN VALUES edited by Robert H. Bork HOOVER INSTITUTION PRESS Stanford University Stanford, California The Hoover Institution on War, Revolution and Peace, founded at Stanford University in 1919 by Herbert Hoover, who went on to become the thirty-first president of the United States, is an interdisciplinary research center for advanced study on domestic and international affairs. The views expressed in its publications are entirely those of the authors and do not necessarily reflect the views of the staff, officers, or Board of Overseers of the Hoover Institution. www.hoover.org Hoover Institution Press Publication No. 535 Copyright ᭧ 2005 by the Board of Trustees of the Leland Stanford Junior University All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission of the publisher. First printing, 2005 1211100908070605987654321 Manufactured in the United States of America The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences— Permanence of Paper for Printed Library Materials, ANSI Z39.48-1992. ࠗϱ Library of Congress Cataloging-in-Publication Data “A country I do not recognize” : legal challenges to American values / edited by Robert H. Bork. p. cm. — (Hoover Institution Press publication series ; 535) Includes bibliographical references and index. ISBN 0-8179-4601-2 casebound (alk. paper) ISBN 0-8179-4602-0 paperback (alk. paper) 1. Constitutional law—United States. 2. Political questions and judicial power—United States. 3. Social values—United States. 4. Sociological jurisprudence. 5. United States. Supreme Court. I. Bork, Robert H. II. Series: Hoover Institution Press publication ; 535. KF4549.C68 2005 340Ј.115—dc22 2005003169 Contents Contributors vii Introduction ix Robert H. Bork 1. Constitutional Law without the Constitution: The Supreme Court’s Remaking of America 1 Lino A. Graglia 2. The Perverse Paradox of Privacy 57 Gary L. McDowell 3. A Court Tilting against Religious Liberty 85 Terry Eastland 4. The New Diplomacy Threatens American Sovereignty and Values 113 David Davenport 5. The Dangerous Myth of Universal Jurisdiction 135 Lee A. Casey and David B. Rivkin Jr. Index 185 Contributors robert h. bork has served as solicitor general, acting attorney general of the United States, and United States Court of Appeals judge. He is also a distinguished fellow at the Hudson Institute and the Tad and Dianne Taube Distinguished Visiting Fellow at the Hoover Institution. He has been a partner in a major law firm and taught constitutional law at Yale Law School. Bork is author of the best-selling The Tempting of America: The Political Seduction of the Law and Slouching towards Gomorrah: Modern Liberalism and American Decline. lee a. casey has served in various capacities in the federal gov- ernment including in the Office of Legal Counsel and Office of Legal Policy at the U.S. Department of Justice. He is a partner of the law firm of Baker & Hostetler in Washington, D.C., focusing on federal, environmental, constitutional, electoral, and regulatory law. david davenport is a research fellow at the Hoover Institution and is Distinguished Professor of Public Policy at Pepperdine Uni- viii contributors versity. He served as president of Pepperdine University from 1985 through 2000. terry eastland is publisher of The Weekly Standard. His books include Energy in the Executive: The Case for the Strong Presi- dency and Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State. lino a. graglia has written widely in constitutional law—espe- cially on judicial review, constitutional interpretation, race discrim- ination, and affirmative action—and also teaches and writes in the area of antitrust. He is the author of Disaster by Decree: The Supreme Court Decisions on Race and the Schools and many arti- cles, including “Church of the Lukumi Babalu Aye: Of Animal Sacrifice and Religious Persecution” (Georgetown Law Journal, 1996). He has been a visiting professor at the University of Virginia School of Law and is A. Dalton Cross Professor of Law at the University of Texas. gary l. mcdowell is the Tyler Haynes Interdisciplinary Profes- sor of Leadership Studies, Political Science, and Law at the Jepson School of Leadership Studies in the University of Richmond. Among his books is Curbing the Courts: The Constitution and the Limits of Judicial Power. david b. rivkin jr. has served in various policy and legal posi- tions in the U.S. government, including stints in the White House Counsel’s office, Office of the Vice President, and the Departments of Justice and Energy. He is a partner at the law firm of Baker & Hostetler in Washington, D.C., focusing on litigation of interna- tional, constitutional, and environmental issues. Mr. Rivkin is also a visiting fellow at the Nixon Center and a contributing editor at the National Review and The National Interest magazines. He has written widely on constitutional and international law matters, as well as on foreign and defense policy issues. Introduction Robert H. Bork What has long been true has now become obtrusively apparent: There exists a fundamental contradiction between America’s most basic ordinance, its constitutional law, and the values by which Americans have lived and wish to continue to live. That disjunction promises to become even more acute as the United States, along with Europe, moves toward the internationalization of law. Several things are to be observed about these developments. First, much constitutional law bears little or no relation to the Constitution. Second, the Supreme Court’s departures from the Constitution are driven by “elites” against the express wishes of a majority of the public. The tendency of elite domination, moreover, is to press America ever more steadily toward the cultural left. Finally, though this book concentrates on the role of judges, who constitute the most powerful single force in producing these effects, politicians and bureaucrats bear a share of the responsibility. Though there have been instances of judicial perversity throughout our history, nothing prepared us for the sustained rad- icalism of the Warren Court, its wholesale subordination of law to x robert h. bork an egalitarian politics that, by deforming both the Constitution and statutes, reordered our politics and our society. Some of these changes were both constitutionally legitimate and beneficial;1 most were not. Today’s Court, though generally more honest in inter- preting statutes, is, if anything, even bolder in rewriting the Con- stitution to serve a cultural agenda never even remotely contemplated by the founders. This Court strikes at the basic insti- tutions that have undergirded the moral life of American society for almost four hundred years and of the West for millennia. As John Derbyshire put it, “We Americans are heading into a ‘crisis of foundations’ of our own right now. Our judicial elites, with politicians and pundits close behind, are already at work decon- structing our most fundamental institutions—marriage, the family, religion, equality under the law.”2 Courts, even with the assistance of politicians and bureaucrats, have not, of course, accomplished this deconstruction entirely on their own. They both reflect and advance a broader cultural move- ment that has been growing and maturing among elites, including most members of the Supreme Court, for several decades and that erupted and became full-blown in the late 1960s and early 1970s, a period commonly called the Sixties decade. What was at first a counterculture gained traction and further radicalized attitudes among elites. The Court, now downplaying the question of eco- nomic equality in favor of “lifestyle” issues, came to embrace and then to celebrate group identity and radical personal autonomy in moral matters. The Court majority, to put the matter plainly, has been overtaken by political correctness. Traditional values are being jettisoned and self-government steadily whittled away. The American people have no vote on these transformations; efforts by 1. Brown v. Board of Education, 347 U.S. 483 (1954), ending governmental racial discrimination, is the premier example. 2. Derbyshire, “Our Crisis of Foundations,” National Review (December 13, 2004): 37, 39. introduction xi legislatures to set limits to cultural change and to control its direc- tion are routinely, and almost casually, thwarted. The complaint here is not that old virtues are eroding and new values rising. Morality inevitably evolves. A society that knew only change would exist in a state of constant frenzy and would soon cease to be a society; a society whose values never altered would resemble a mausoleum. But the merits of specific changes, how far and how rapidly they should proceed, and whether any particular aspect of morality should form the basis of law, are questions of prime importance to the way we live. And these questions, accord- ing to the postulates of the American republic,
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