Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.
Truth is the majority vote of the nation that can lick all the others.
Oliver Wendell Holmes
There is one thing a professor can be absolutely certain of: almost every student entering the university believes, or says he believes, that truth is relative.
For the mystery of lawlessness is already at work . . . . The coming of the lawless one is according to the working of Satan . . . with all unrighteous deception among those who perish because they did not receive the love of the truth . . . .
It is almost a year now since the U.S. Senate rejected President Reagan’s nomination of Judge Robert Bork to the Supreme Court. Distracted by the inevitable clamor and chimera of an election year and always suffering from an alarmingly short memory, our nation has largely forgotten the unprecedented and bitter battle that broke out last year over the scholarly jurist’s nomination to the highest Court in our land. The announcement of Bork’s nomination galvanized scores of liberal political organizations which joined forces to wage collectively an unparalleled political assault against a Supreme Court nominee. The A.C.L.U., the National Organization of Women, People for the American Way, Planned Parenthood, and countless others spent millions of dollars nationwide disseminating propaganda scandalously characterizing Judge Bork as a right-wing fascist intent on stripping Americans of their hard-won constitutional civil rights. This historic mobilization of liberals was ironically spearheaded by perhaps the two least likely politicians to challenge anyone’s credentials, Senators Joseph Biden and Ted Kennedy. Although observers expected typical partisan opposition to such a significant assignment, many were bewildered by the passionate antipathy towards Bork displayed by his liberal detractors. Indeed, was there something more than a prestigious appointment at stake?
A War for the Constitution
In a recent speech in Chicago, Bork sounded his own call to arms, declaring that the nation is embroiled in nothing less than “a war for control of the Constitution.” What is at stake, he said, is the “very idea of the rule of law in this country.” He warned that we are confronted by a leftist political movement that is attempting to “gain control” of the Constitution. We are now engaged, he asserted, in an ideological civil war involving the most fundamental issues of democratic freedom.
He accused his liberal foes of having a “hidden agenda” that no legislature would ever adopt; their only hope is that some sympathetic judges will implement it by judicial fiat. Their agenda is “egalitarian and redistributionist,” he charged, and also includes such controversial goals as abortion-on-demand, affirmative action programs, and homosexual rights. But since the Constitution insures no such liberties, the liberals embrace “judicial activism.” This doctrine views the Constitution as a “living document” which can be subjected to new readings by each generation of jurists. Judges, then, should be free-wheeling and expansive in their interpretation of the document, creatively forging new rights and notions which (in their view) address contemporary society’s problems.
It is generally acknowledged that the most infamous product of judicial activism is the 1973 Roe v. Wadedecision wherein a Texas state statute outlawing abortions was struck down by the Supreme Court as violative of a newly discovered constitutional guarantee—a woman’s “right to privacy” over her own body, a right admittedly nowhere mentioned in the Constitution or its supporting historical documents. And, more recently, an attempt to persuade the Supreme Court to strike down Georgia’s sodomy statute as violative of another new constitutional right—the right to engage in homosexual conduct—failed by only one vote.
Judicial Restraint and Original Intent
Bork argues that such unfettered activism by the judiciary is a frightening usurpation of the power of the legislature. The “moral content” of the law, claims Bork, should be given by the legislature; the judge’s only role is to apply that law to unforeseen circumstances. Rather than yielding to the temptation to wield power to accomplish societal goals ignored or even resisted by the legislatures, the judiciary should instead scrupulously exercise deference and restraint.
Coupled with this conservative doctrine of “judicial restraint,” Bork also espouses the belief that judicial Constitutional interpretation must be limited by the “original intent” of its authors. No judge may fashion or finagle new rights or notions that were never incorporated in the Constitution. If, for example, state legislatures outlaw abortion or sodomy, the judiciary may not strike down such laws as violative of some newly found Constitutional guarantees unknown to the Framers, but rather must defer to the “moral content” of the law enacted by the legislature as representative of the majority of the people. To do otherwise would result in an “undemocratic” substitution of the moral preferences of the legislature for that of the judiciary. Such “judicial activism” is not rule by law in a democracy, suggests Bork, but rather rule by oligarchy.
A Moral Catastrophe
Bork’s judicial conservatism is embraced generally by evangelical Christians, but his implicit trust in the ability of the legislature to afford law its “moral content” is perhaps unduly optimistic and naive. For it can be argued that the great legal problem today is not that our jurisprudence is becoming “undemocratic.” The profound crisis rather is that all moral debate—legislative, judicial, or otherwise—has become arbitrary and meaningless. Many religious writers have lamented America’s abandonment of the Christian ethical tradition since the 1940’s. And now even reputable secular scholars today such as Allan Bloom (The Closing of the American Mind) and Alisdair MacIntyre (After Virtue) have announced that a “moral catastrophe” has occurred in this country. “We have—very largely, if not entirely—lost our comprehension, both theoretical and practical, of morality,” writes MacIntyre.
If so, then Bork has ignored the foundational question that lurks beneath the conservative/liberal debate in jurisprudence: How can anyone (including legislators) make moral judgments in a society that is now morally adrift without any charts or navigational aids? And Bork himself offers us little hope. Not a member of any church and describing himself facetiously as a “generic Protestant,” Bork personally refuses to declare that abortion-on-demand and homosexuality are morally wrong. Presumably, then, his only objection to Roe v. Wade is that it is an “undemocratic” decision contrary to the moral preferences of the majority of Texans (at least in 1973). He does not explain, however, why the caprice of a majority of Texans is any less arbitrary than the whims of a Washington, D.C. judiciary. But perhaps Bork is essentially a relativist not unlike Justice Holmes, the father of American legal skepticism, and believes that principles of truth and justice are to be determined solely by the vox populi.
The Reformed jurist, legislator, and citizen rejects such relativism and refuses to look to the collective preferences of citizenry or the judiciary for the fundamental notions of morality and justice needed in making, interpreting, and obeying our laws. Rather, he will appeal to the “natural law” concepts of truth and justice which are implicit in the Creation (Romans 1), written in man’s heart and conscience (Romans 2) and more fully and clearly known in the Holy Scriptures. And, unlike Bork, he will unequivocally declare that abortion-on-demand and homosexuality, for example, are violative of “natural law” and scripture, and therefore should be proscribed by the civil law of the state.
If a legal system that is fundamentally arbitrary is essentially lawlessness, then the “mystery of lawlessness” is already at work in this country. But even in the face of this apostasy being ushered in by the “lawless one,” Paul urges the Christian to “stand fast and hold the traditions” which he was taught (II Thess. 2:15). The Reformed citizen must remain undaunted and fulfill his duties to all three branches of our government. He must pay taxes, show due honor and respect, and obey “in all things not repugnant” to the Word of God.
But the Reformed citizen is called to more than passive obedience. He has a mandate actively to be the salt of the earth by witnessing to the government by speaking to or corresponding with his elected representatives, lawfully demonstrating when necessary, and exercising his right to vote and take office. Finally, the Christian citizen will pray for his legislators and judges that “God may rule and guide them in all their ways, that we may lead a quiet and peaceable life in all godliness and honesty” (Belgic Confession, Art. 36).