American Papacy

Unsurprisingly, Bork pays significant attention to the Supreme Court becoming as he calls it “the American Papacy”. Liberals have long realized that there are many parts of their agenda; abortion on demand, and homosexual marriage for example that the American electorate would not vote into law. The term “liberal” is an excellent cover since it belies the fact that liberals are perfectly willing to be authoritarian in their methodology when the route of democracy doesn’t allow them to have their way. The use of the Supreme court is one of their favorite levers.

Bork argues persuasively that once the Court has removed itself from the retstraint of the constitution as it clearly did in Roe v Wade, and Planned Parenthood vs Casey. In Casey, they put forth “the mystery passage”. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, and of the universe, and of the mystery of human life”. Essentially, you have a constitutional right to be God … as long as you are living your life by “your concept” of what life, meaning, the universe, etc are, then you should be “free” … to abort, which is murder, so you are free indeed. The “mystery passage” was invoked again in the Texas case where a Constitutional right to sodomy was discovered. As Bork points out, once the authoritarian impulse took over in Roe, the stage was set for unlimited legislation from the court.

Modern liberals like to bray that “the framers could not envision our day, so they left it up to the court to find the law that is needed in the constitution”. The framers DID leave us a mechanism, it is called LEGISLATION. Both the state and Federal Legislatures have the power to make and UN-make laws on a great many subjects, abortion included. What the court has done is to decide that the populace should not be able to vote on a number of issues, so they have taken it on themselves to re-write the constitution to make the laws that THEY desire, rather than allow the people to govern themselves.

Bork has no faith that a majority can be attained to strike down even the most egregious of court legislation, as any potential nominee of enough conservative thought to be willing to take on the issue will nearly certainly be prevented by the conservative principle of precedent and be unwilling to overturn. He makes a case for a Constitutional amendment to allow legislatures to overrule the court. I didn’t find his proposal very likely to have any chance of happening. The unhappy case is that the court has crossed a line where future legislation by 9 is a virtual certainty.