Olympian Jurisprudence
Saturday, January 14th, 2006Robert’s Bork’s recent book, “A Country I Do Not Recognize”: The Legal Assault on American Values, is an excellent read. Although Bork edited the five articles in the book, his preface makes the book worth its price. The only essay I didn’t enjoy was Terry Eastland’s, which was merely a regurgitation of First Amendment freedom of religion and establishment cases.
What stood out the most was Bork’s description (in his introduction) of the liberal Justices’ philosophy on the Supreme Court as Olympian: self-assured intellectuals who savor the lushness of their own enlightened reasoning, believing the traditional constraints of a constitutional democracy need not apply to their reasoning or judicial opinions. Olympians are self-appointed immortals who speak down to–not an equal level. To an Olympian, strict adherence to the constitutional text is an anachronism. Justice Kennedy’s reliance on “the right to define one’s concept of existence . . . of the mystery of human life” as part of the liberty guaranteed by the Fifth Amendment in Lawrence v. Texas to justify overturning the moral judgment of a state legislature is a prime example.
Thankfully, help is on the way. Chief Justice Roberts sits in Rehnquist’s place and Judge Samuel Alito is headed for confirmation. However, another one or two SCJs are needed to assure that the meaning and intent of our Constitution is not wrested from the People who ordained it or those who now abide by it articles and amendments. Bork concludes:
Control of law is part of a larger struggle for power, the power to coerce individuals, groups, and nations to accept particular values. In both constitutional and international law, the power-seekers are predominantly on the left, and so far they have been largely successful. That is a fact that United States citizens, insofar as they cherish self-government and American values, should recognize as reason for profound concern.
This power struggle is a big part of why the Democratic questioning of Judge Alito was so confrontational and bombastic. Both the Old Left and the New Left want to hold on to and expand their last vestige of power–the judiciary. Hopefully, that power will finally slip from their grasp.
