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If I had been Borked, I probably would be bitter. If I were a highly qualified judge who'd lost out on the best job in the world due to a political mud fight, I might spend a few years spewing bile. But Robert Bork has been doing it for so long I think he's abusing the privilege.
The latest exhibit: Bork's piece in the Wall Street Journal, "Their Will Be Done." As usual, the subject of his sermon is America's going to hell. And helping it along is the Supreme Court, which keeps insisting on giving citizens too much damn freedom. Don't they realize we live in a country where believing there's a Constitutional commitment to think for yourself will destroy us?
Bork makes it more than clear if he were a justice, he'd take a jaundiced view of any attempt to expand our liberty.
I'm not saying he's always wrong, legally speaking, but whenever I read his stuff, I always think "whew, that was a close call."
Columbus Guy says: At least he's willing to address what may be the most difficult of all questions in law: What business does morality have in legislation? Perhaps LAGuy's answer is none, which would have the delight of principle and consistency, but I'm doubtful that anyone, including LAGuy, really would answer the problem that way. And as soon as we stop answering "none," it's difficult to know what to answer, or how or why.
LAGuy ripostes: Actually, he's not particularly willing to address this issue. What he does is make sweeping statements and crowd-pleasing, echo-chamber raspberres. His legal analysis is rudimentary (that's giving him the best of it) and he avoids many arguments and questions that anyone writing about this stuff must deal with.
This is a man so bitter when the Berlin Wall fell he wondered if the East Germans were getting a good deal. He doesn't want to be a judge, he wants to be a legislator, since he condemns anyone who gives the people too much freedom. The only serious defense I've seen of his post-Borked writing is that being treated so harshly bent him out of shape, and if he had become a Justice, he would have examined these issues with the seriousness they deserve.
posted by LAGuy @ 12:52 AM
5 Comments:
All right. LAGuy asserts that all Bork does is throw out "sweeping statements and crowd-pleasing, echo-chamber rasberres". What I don't see is LAGuy actually meeting the points that Bork makes.
Take this statement: "Neither of these vaporings has the remotest basis in the actual Constitution, and neither has any definable meaning other than that a common morality may not be sustained by law if a majority of justices prefer that each individual follow his own desires." Here in the echo chamber, I am wondering first of all if you will defend the referenced statements as "constitutional"? and secondly the broader question Bork asks How can a state exist without any common morality (the glue that one would think would hold people together)?
I'm not entirely sure what your claim is, so I'll try to answer what I think you're asking.
First, there are very strong arguments that allowing people freedom of conscience, thus allowing them to live by their own lights, is very well-based in our Constitution, as well as our history. Bork will have none of this, but won't face the actual arguments--he's just talking to people who agree with him already, and are waiting in line to condemn modern morality. (Bork doesn't believe the Ninth Amendment can mean anything, by the way.)
Speaking of which (and this is a subject I've written about before), Bork is even more off when he writes about common morality. I don't really have the space or time to go into a long argument here (maybe some other day I will, but here I'm just trying to suggest where Bork goes off the rails), but: 1) we do have a common morality, and pretty much everyone agrees that murder and stealing and hurting others, etc., is wrong--Bork is vastly exaggerating the immorality and amorality of his opponents. 2) Certain beliefs change through time, and when you're afraid of the change, and would rather curse it than light a candle and investigate it, it just seems that the new morality is no morality. Slavery used to be an open question, but the world changed and now (as part of our common morality) no one accepts it. Women weren't allowed to vote, but now they are. There are many issues today that are controversial, because thought on them is, understandably, evolving, such as gambling, meidcal marijuans, a woman's place, immigration, and hundreds of other things. There are arguments worth hearing (or at least worth refuting) on both sides, but as far as Bork is concerned, those who disagree with him are just wrong and show how American is falling apart. 3) Change can be good. There are always people who fear it. Better to seriously confront it, which Bork seems afraid to do. 4) A common morality can be a glue, but it can also stagnate into mindless dogma. If the common morality is so obviously good, let's have Bork and his ilk make a case for it in particular--otherwise, I reserve the right, in the grand American tradition, to check things out for myself. 5) Part of our common morality is tolerance, which Bork seems sorely lacking.
"Pretty much everyone agrees" is the new standard then? It used to be the words of the Constitution. So, if change happens, the place to do it is in the legislature or by amending the Constitution, not reinterpreting it. And don't Anthony Kennedy's words either become meaningless or mean that we don't have a common morality. Each person decides for his or herself.
But at least now you are trying to tackle the issues Bork raises, not just bitching.
Sorry if I still don't fully understand what you're getting at, but I'll try my best to respond.
As far as everyone agreeing on things, that's in reference to Bork and others claiming we don't have a common morality--we're not talking about law or the Constitution.
As to "interpretation", the Constitution has to constantly be re-interpreted since new situations are constantly arising. Bork can pretend he's got the only answer and everyone else is "reinteprteting," while he's "interpreting," but Kennedy is just as sure he's following the words' meaning properly. Bork should admit this and answer the real argument, rather than just sneer at anyone who dares to disagree.
People thinking for themselves doesn't mean we can't or don't have a common morality. You're free to practice your own religion--does that mean we can't believe anything in common--at the very least we believe in tolerance and freedom of conscience, something that seems pretty grounded in the Constitution to me, and something that Bork as a Justice wouldn't support much.
Finally, I'm allowed to bitch. I don't always have time to give a full argument--often my entries are just there to draw attention to things and to present my conclusions, not my arguments. But if I wrote a series of articles for the WSJ and many other major insitutions, and if I did it for years and years, and often got paid, after a while I think you could demand I make a serious argument.
Let us stipulate at the outset that LAGuy and RBork do not agree on much. That their worldviews are different. Now let us talk about the laws of the USA. Bork makes the claim that the job of the court should be to interpret the Constitution not legislate from the bench. And he gives examples of where this has occurred. And he attempts to give reasons why this has happened. This last part is the part LAGuy is stuck on.
But my focus is on a court in which the judges do what it seems judges are supposed to do. Determine if the laws as passed by the legislature are in conformity with the Constitution. Recognizing that there will be change and that change can be either good or bad. Recognizing that there is a process through the legislature of effecting change. Recognizing that there is plenty of open dialogue in our society, making the idea of mindless dogma laughable. (By the way is "mindless dogma" which is at least a stale cliche, not a sweeping generalization and designed to please certain echo-chamber crowds?)
All of the above having been set forth and agreed to, what is it about the Constitution that has changed since the court changed its mind about sodomy laws, or property rights, or several other issues in which (sometimes the same court members) the court changed its mind about what the Constitution says (or how it should be interpreted?) What will changed in 25 years in the Constitution that will make racial preference laws not okay and now they are okay? Is not this the job of the people (the legislature which represents them)? Yes there are many issues that the people of the US need to deal with.
And the simple proposal is to have the Court to (on the main) get out of the way and let the people decide what they are ready to accept as comon morality, what wonderful positive change they will make, what they are willing to tolerate and what mindless dogma they are willing to subscribe to. or don't you trust the people?
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