Robert Bork on the Deliberate Erosion of Traditional Values in the Interests of Internationalism

Judge Bork published the book from which this excerpt is taken 15 years ago in 2005. The current situation has been building for years. 

From Catholic Critique

From A Country I Do Not Recognize: The Legal Assault on American Values (Hoover Institution Press Publication Book 535) by 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 radicalism of the Warren Court, its wholesale subordination of law to 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 interpreting statutes, is, if anything, even bolder in rewriting the Constitution to serve a cultural agenda never even remotely contemplated by the founders. 

This Court strikes at the basic institutions 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 deconstructing 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 movement 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 economic 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 legislatures to set limits to cultural change and to control its direction 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, according to the postulates of the American republic, are matters to be resolved primarily within families, schools, churches, and similar institutions, and only occasionally by public debate, elections, and laws that embody, however imperfectly and temporarily, the current moral consensus. 

What is objectionable is that, in too many instances, a natural evolution of the moral balance is blocked and a minority morality forced upon us by judicial decrees. This judicial gnosticism was described by Justice Antonin Scalia in a dissent: “What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional? . . . Day by day, case by case, [the Supreme Court] is busy designing a Constitution for a country I do not recognize.”(3) 

Less far advanced, but no less objectionable, is the ongoing internationalization of law, including even the internationalization of American constitutional law. It may seem bizarre that the Constitution of the United States, written and ratified over two hundred years ago, should be interpreted with the guidance of today’s foreign court decisions and even the nonbinding resolutions of international organizations, but that does not seem at all preposterous to some of our Supreme Court justices nor to the elites to which the justices respond. The Supreme Court reporter for the New York Times remarked, approvingly, that “it is not surprising that the justices have begun to see themselves as participants in a worldwide constitutional conversation.” (4) She might more accurately have said “a worldwide constitutional convention.”