Slouching Towards Gomorrah

by Robert H. Bork

  The extra-constitutional individualism that undergirds the “constitutional” right to abortion was made clearest in the joint opinion of three Justices in Planned Parenthood v. Casey.20 These Justices, whose votes created a majority to sustain most of Roe, invented a heretofore unheard-of constitutional right to “personal dignity and autonomy.” They attempted to explain the appearance of this previously unsuspected right by saying: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”21 Beliefs about such matters were said to define “personhood,” which is to be protected from state compulsion. It is not recorded that any American government, from the founding on, has ever thought it worthwhile to compel anyone’s concept of meaning or of the mystery of human life. What this judicial grandiloquence means, aside from a right to have an abortion, nobody knows. But then hymns to radical individualism are necessarily murky and obscure. This particular one is known in the trade as “the mystery passage.”

  The language of the four dissenters in Bowers v. Hardwick…the case deciding, five to four, that homosexual sodomy is not a constitutional right…is clearer but even more dismaying. (After he retired, Justice Lewis Powell stated that he regretted not voting with the four, thus making a majority for their position.) The dissent would have found a constitutional right to engage in homosexual sodomy by invoking the right of privacy once more: “[The Court] has recognized a privacy interest with reference to certain decisions that are properly for the individual to make.”22 The word “properly” signifies that not all decisions are for the individual to make, just those the Court, as opposed to the legislature, approves of. The majority, which ruled against Hardwick, tried to limit the reach of the right of privacy by saying that the cases decided under that heading had related to the protection of the family. The dissenters made an astonishing response: “We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual’s life.”23 So much for the family as the basic unit of society. The family’s value is measured by its contribution to individual gratification. That is a major theme of modern liberalism, particularly of its feminist component, which views the family as oppressive to individuals.

  Apparently not satisfied, the four dissenters immediately made things worse: “‘[T]he concept of privacy embodies the “moral fact” that a person belongs to himself and not others nor to society as a whole.’”24 There are “moral facts,” but that is certainly not one of them. It would mean that no one has any obligations as a family member or as a citizen, no obligations to anyone or anything outside his own skin. Radical individualism can’t be taken any further. The Justices did not really mean what they said, of course, for their proposition would make society impossible. But the fact that they could say such a thing, however thoughtlessly, shows how strongly they lean toward radical individualism.

  It would unduly prolong this chapter to rehearse in detail what the Court has done in criminal law and in education. The rights of criminals have been steadily expanded and those of the community contracted. The exclusionary rule bars probative evidence that the police are judged, often on the sheerest technicality, to have obtained improperly. Every television viewer is familiar with the Miranda warnings (“You have the right to remain silent,” etc.) that the Court imposed, which have made law enforcement more difficult.

  The same thing is true of public schools, where the power to discipline has been severely circumscribed and the power to expel virtually amputated. No more the paddle for students who disrupt study hall; no more the expulsion or segregation of students who make learning next to impossible for others. It is not a matter for wonder that the home schooling movement and private schools are growing. In their solicitude for aberrant individuals, courts have seriously infringed what once were the rights of other individuals by weakening the powers of the institutions that protected those rights.

  Judicial radical individualism weakens or destroys the authority of what sociologists call “intermediate institutions”…families, schools, business organizations, private associations, mayors, city councils, governors, state legislatures…that stand between the individual and the national government and its bureaucracies. All of this has happened within the lifetimes of many Americans. We are worse off because of it, and none of it was commanded or contemplated by the Constitution.

  The Court’s commitment to radical egalitarianism has been equally strong. Equality, the dominant theme of the Warren Court, made a sensational appearance soon after Earl Warren became Chief Justice in 1953. In 1954, Brown v. Board of Education25 held that racial segregation in public schools violated the equal protection clause of the Fourteenth Amendment. I have argued elsewhere that, though the decision was correct and could have been supported by an analysis that took into account the original understanding of the amendments meaning by those who wrote and ratified it, the Court’s weak and disingenuous opinion, by the Chief Justice, indicates that the Justices believed they were departing from the Constitution in order to promote a desirable equality.26 The unfortunate result was that the Justices were encouraged to more adventures in egalitarianism that, unlike Brown, really did depart from the Constitution.

  In Harper v. Virginia State Board of Elections,27 for example, the Court struck down an annual poll tax of SI.50 under the equal protection clause of the Fourteenth Amendment, thus overruling its own decisions that such taxes were entirely constitutional if not used for purposes of racial discrimination. The reason offered was that “notions” of equality “do change.” The notions that changed were the Justices’, not the legislators’, and they certainly had changed as modern liberalism took hold in the judiciary.

  The Warren Court’s obsession with equality was such that in Reynolds v. Sims28 it ordered state legislatures restructured to produce absolute equality of voters. Most states, like the federal government, elected senators from geographic districts, which meant that the senators often represented constituencies of very different sizes, as is also true of United States senators. The theory was that different geographic areas often have different interests so that it was appropriate to give some of those interests a voice larger than their population alone would suggest. That was a structural arrangement designed…like federalism, the separation of powers, and the Bill of Rights…to moderate pure majoritarianism. The other house of a state legislature was typically based on population so that representatives’ constituencies were approximately equal. Seizing upon the equal protection clause, the Court adopted a formula of one person, one vote, which meant that both houses of state legislatures had to be based on population. There is a good deal wrong with this as political theory; everything was wrong with it as constitutional law. There is no reason in political theory why regional minorities may not be protected, as they are in the federal Constitution by giving two senators to each state. State after state had gained admission to the union with senates based on the federal model, and nobody had suggested that the arrangement violated the Constitution. The representation formula the Court required in order to produce equality had not been the American practice from colonial days to the day of the Reynolds decision. The Court ordered that state legislatures be transformed on the basis of an abstract, and simplistic, theory of equality.

  It was in the areas of race and sex, however, that radical egalitarianism proved most potent. So strong was the impulse that, in a masterpiece of statutory deconstruction, the Court overrode the explicit text and legislative history of the 1964 Civil Rights Act (that it is unlawful for an employer “to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin”) in order to allow preferences in hiring and promotion for blacks29 and women.30 The Court usually argued that the preferences were remedies for past discrimination. This makes no sense, since the person now being preferred is not the person discriminat
ed against in the past. Even the requirement of past discrimination was dropped when, in Metro Broadcasting, Inc. v. FCC,31 the Court allowed racial preference in the grant of station licenses by the Federal Communications Commission despite the lack of any evidence that such grants had ever been tainted by discrimination. These cases all approved what is today known as “affirmative action.”

  The list of egalitarian decisions not warranted by law could be extended almost indefinitely as the Court, entranced with equality, extended the reach of the equal protection clause of the Fourteenth Amendment far beyond any conceivable intention of those who made the amendment law and far beyond anything previous Courts had been willing to do.

  Almost as instructive about the nature of modern liberalism is the Court’s recent, partial, and very tentative retreat from its approval of governmental attempts to require equality of condition according to race, ethnicity, and sex. One such program required federal agency contracts to give a prime contractor monetary rewards for hiring subcontractors certified as small businesses controlled by socially and economically disadvantaged individuals. These included minorities or any individuals the Small Business Administration found to be disadvantaged.22 † A prime contractor on a highway project awarded a subcontract to a firm owned by an Hispanic despite the fact that a white-owned firm had submitted a bid at a lower price. (Though many Hispanics are white, the law in its impartiality treats them as though they were not.)

  The Supreme Court, in a five-to-four decision, found that the preference constituted discrimination and violated the equal protection component of the due process clause of the Constitution.32 The result was correct, and a welcome relief from the discrimination against white males practiced, egregiously, in the name of equality. It is too soon, however, to say that the Court has abandoned its extreme egalitarianism, under which racial, ethnic, and sexual groups must be proportionally represented in each field of endeavor. The vote was by the narrowest majority, and at least one member of that majority indicated the possibility of voting the other way in the future. Seven members of the Court, moreover, said that discrimination against white males was acceptable to “remedy past discrimination.” That is an unprincipled compromise: it is impossible to remedy past discrimination against Jones by preferring Smith today and discriminating against Brown in the process. The most likely result of this judicial desire not to appear insensitive is that the industry already devoted to proving past discrimination statistically will now experience new growth and prosperity.

  The Court continues to use equal protection to take basic cultural decisions out of the hands of the people. Culture is made by the fiat of a majority of nine lawyers and forced upon the nation. No more egregious example can be found than the decision in United States v. Virginia33 that the Virginia Military Institute, the state’s only single-sex school, must now admit women. VMI was, and now has been for 157 years, an all-male military college whose mission was to produce “citizen soldiers.” The majority held that it was the denial of equal protection for Virginia to offer this education only to men. As George Will wrote, “The Supreme Court gave [women] the right to enroll in an educational institution which, the moment they enter it, will essentially cease to exist.”34 Women will have gained little as a proud tradition and a valuable asset are destroyed by the sterile abstractions of a uni-sex Court.

  Justice Scalia was the sole dissenter (Justice Thomas took himself out of the case because his son attended another all-male military college, The Citadel, which is now also destroyed). Of the majority opinion’s denigration of prior generations of Americans for having insufficiently enlightened views about the role of women, Scalia observed: “The virtue of the democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Courts criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our basic law.”35

  The judicial adoption of the tenets of modern liberalism has produced a crisis of legitimacy. Contrary to the plan of the American government, the Supreme Court has usurped the powers of the people and their elected representatives. We are no longer free to make our own fundamental moral and cultural decisions because the Court oversees all such matters, when and as it chooses. The crisis of legitimacy occurs because the political nation has no way of responding. The Founders built into our government a system of checks and balances, carefully giving to the national legislature and the executive powers to check each other so as to avoid either executive or legislative tyranny. The Founders had no idea that a Court armed with a written Constitution and the power of judicial review could become not only the supreme legislature of the land but a legislature beyond the reach of the ballot box. Thinking of the Court as a minor institution, they provided no safeguards against its assumption of powers not legitimately its own and its consistent abuse of those powers. Congress and the President check and balance one another, but neither of them can stop the Courts adventures in making and enforcing left-wing policy.

  The effects on law and democracy have been horrendous. It is impossible for a Court that views itself as a political and cultural institution as much as a legal institution to make reasoned decisions whose principles it will adhere to in the future. The Court will change the Constitution as politics and culture change. The reasons given in one opinion are often little indication of what will happen in the next case. Since a cultural Court acts without guidance from the historic Constitution, the Justices could produce a coherent jurisprudence of individual rights only if they could construct and agree upon a systematic moral philosophy. Moral philosophers have been unable to agree on such a philosophy; it is preposterous to suppose that a committee of lawyers could. One result is that the Court’s opinions, when it is engaged in the enterprise of creating rights, defy logical parsing. The decisions are diktats embedded in lofty but irrelevant rhetoric.

  Those diktats, moreover, are almost entirely governed by the agenda of liberalism at the moment. Within the last three or four decades that agenda has shifted considerably and the Court has followed suit. The Court headed by Earl Warren was left-wing in every area of the law. Not only were constitutional rulings uniformly left-liberal but so were decisions across the board. Antitrust defendants never won before the Warren Court, no matter what the facts, the law, or the rulings of the courts below. The government always prevailed over taxpayers, patents were routinely declared invalid, government regulations were upheld regardless of their rationality.

  But liberalism has changed. With the exception of certain new fields that have become trendy, such as environmentalism, the Left is no longer terribly interested in economic matters. Today, therefore, the Supreme Court affords a fair hearing to the antitrust defendant, the taxpayer, and the patent holder. In such fields, the Justices comport themselves as good lawyers, paying attention to the law and the facts. But modern liberals have shifted their focus to the war in the culture, and the Court has shifted with them. Today the Court has lined up with the cultural elite and against the majority of the electorate. The same thing is true in many of the lower courts, federal and state.

  Quite recently, two federal courts, a state court, and the Supreme Court demonstrated their powers, their contempt for the electorate, the direction in which they intend to drive the country, and why the abuse of judicial power has become intolerable.

  The Ninth Circuit Court of Appeals found a right to assisted suicide in the federal Constitution. The fascination with death as a right began elsewhere in the culture but swiftly found allies in a mod
ern liberal judiciary. The decision in Compassion in Dying v. State of Washington36 is instructive not only about our intellectually corrupted judiciary but about what is happening to the broader culture. The state enacted a statute making it criminal knowingly to aid another person in attempting suicide. The statute was challenged in court as a violation of the liberty and of the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution.

  The district court ruled for the plaintiffs on both grounds. The Court of Appeals for the Ninth Circuit reversed, sensibly finding that the right to assisted suicide, whose presence in the Constitution had never been suspected in over two hundred years, did not exist. The Court of Appeals, however, decided to rehear the case en banc, eleven judges sitting to decide the law of the circuit. The majority opinion is a model of judicial lawlessness partially hidden by obfuscation. The court began by noting “the compelling similarities between right-to-die cases and abortion cases.”37 It need hardly have gone on, wasting dozens and dozens of pages. When a liberal says something is like abortion, we know that something, whatever it is, is protected by the Constitution. In fact, this opinion, in its intellectual dishonesty, its pretense that what it is saying relates to law, bears an uncanny resemblance to Roe v. Wade. Like Roe, it undertakes a survey of historical attitudes, in this case towards suicide. We learn about the Greeks, the Romans, the early Christians, English common law, the American states…none of it of the slightest relevance to the case. We are then informed about polling data and current social attitudes, again of no relevance to the meaning of the Constitution.

  Eventually, we get to the interest in liberty under Casey. Here the Ninth Circuit repeats and relies upon the fatuities of the joint opinion there:“[T]he most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” If that seems fog-filled, vapid rhetoric intended to put the readers mind to sleep, the court at once brought its notion of intellectual rigor to bear: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Oh, that explains it. One would think that grown men and women, purporting to practice an intellectual profession, would themselves choose to die with dignity, right in the courtroom, before writing sentences like those. They mean nothing and were intended to mean nothing. They were intended, through grandiose rhetoric, to appeal to a free-floating spirit of radical autonomy. Those words illustrate the anti-intellectualism that suffuses constitutional law as a consequence of modern liberalism. Being a mood rather than a philosophy, modern liberalism cannot be other than anti-intellectual.