A Country I Do Not Recognize: The Legal Assault on American Values

233 Pages·2005·2.626 MB·English

by  Robert Bork

“A Country I Do
Not Recognize”
THE LEGAL ASSAULT
ON AMERICAN VALUES
This book is a publication
of the Hoover Institution’s
Initiative
on
American Individualism
and Societal Values
The Hoover Institution
gratefully acknowledges
earhart foundation
tad and dianne taube
taube family foundation
for their generous support
of this book project.
“A Country I Do
Not Recognize”
THE LEGAL ASSAULT
ON AMERICAN VALUES
edited by
Robert H. Bork
HOOVER INSTITUTION PRESS
Stanford University Stanford,California
The HooverInstitution on War,Revolution and Peace,founded
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Hoover Institution Press PublicationNo. 535
Copyright (cid:2) 2005 by the Board of Trusteesof the
Leland StanfordJunior University
All rights reserved.No part of this publication may be
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Libraryof Congress Cataloging-in-PublicationData
“A country I do not recognize”: legal challengesto Americanvalues /
edited by Robert H. Bork.
p. cm. — (HooverInstitution Press publication series; 535)
Includes bibliographicalreferencesand index.
ISBN 0-8179-4601-2 casebound(alk. paper)
ISBN 0-8179-4602-0 paperback(alk. paper)
1. Constitutional law—UnitedStates. 2. Politicalquestions and judicial
power—UnitedStates. 3. Socialvalues—UnitedStates. 4. Sociological
jurisprudence. 5. UnitedStates. SupremeCourt. I. Bork,Robert H.
II. Series:HooverInstitution Press publication ; 535.
KF4549.C68 2005
340(cid:2).115—dc22 2005003169
Contents
Contributors vii
Introduction ix
Robert H. Bork
1. Constitutional Law without the Constitution:
The Supreme Court’s Remaking of America 1
Lino A. Graglia
2. The Perverse Paradox of Privacy 57
Gary L. McDowell
3. A Court Tilting against Religious Liberty 85
Terry Eastland
4. The New Diplomacy Threatens American
Sovereignty and Values 113
David Davenport
5. The Dangerous Myth of Universal Jurisdiction 135
Lee A. Casey and David B. Rivkin Jr.
Index 185

Contributors
robert h. bork has served as solicitor general, acting attorney
general of the United States, and United States Court of Appeals
judge. He is also a distinguished fellow at the Hudson Instituteand
the Tad and Dianne Taube Distinguished Visiting Fellow at the
Hoover Institution. He has been a partner in a major law firm and
taught constitutional law at Yale Law School. Bork is author of the
best-selling The Tempting of America: The Political Seduction of
theLawandSlouchingtowardsGomorrah:ModernLiberalismand
American Decline.
lee a. casey has served in various capacities in the federal gov-
ernment including in the Office of Legal Counsel and Office of
Legal Policy at the U.S. Department of Justice. He is a partner of
the law firm of Baker & Hostetler in Washington, D.C., focusing
on federal, environmental, constitutional, electoral, and regulatory
law.
david davenport is a research fellow at the Hoover Institution
and is Distinguished Professor of Public Policy at Pepperdine Uni-
viii contributors
versity. He served as president of Pepperdine Universityfrom1985
through 2000.
terry eastland is publisher of The Weekly Standard. His books
include Energy in the Executive: The Case for the Strong Presi-
dency and Religious Liberty in the Supreme Court: The Cases That
Define the Debate over Church and State.
lino a. graglia has written widely in constitutional law—espe-
cially on judicial review, constitutional interpretation,racediscrim-
ination, and affirmative action—and also teaches and writes in the
area of antitrust. He is the author of Disaster by Decree: The
Supreme Court Decisions on Race and the Schools and many arti-
cles, including “Church of the Lukumi Babalu Aye: Of Animal
Sacrifice and Religious Persecution” (Georgetown Law Journal,
1996).HehasbeenavisitingprofessorattheUniversityofVirginia
School of Law and is A. Dalton Cross Professor of Law at the
University of Texas.
gary l. mcdowell is the Tyler Haynes Interdisciplinary Profes-
sor of Leadership Studies, Political Science, and Law at the Jepson
School of Leadership Studies in the University of Richmond.
Among his books is Curbing the Courts: The Constitution and the
Limits of Judicial Power.
david b. rivkin jr. has served in various policy and legal posi-
tions in the U.S. government, including stints in the White House
Counsel’s office, Office of the Vice President, and the Departments
of Justice and Energy. He is a partner at the law firm of Baker &
Hostetler in Washington, D.C., focusing on litigation of interna-
tional, constitutional, and environmental issues. Mr. Rivkin is also
a visiting fellow at the Nixon Center and a contributing editor at
the National Review and The National Interest magazines. He has
written widely on constitutional and international law matters, as
well as on foreign and defense policy issues.
Introduction
Robert H. Bork
W
hat 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 continuetolive.Thatdisjunction
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 culturalleft.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 rad-
icalism of the Warren Court, its wholesale subordination of law to