Wall Street Journal Online ROBERT H. BORK

What do the nomination of a replacement for Sandra Day O’Connor, constitutional law, and moral chaos have to do with one another? A good deal more than you may think.

In Federalist No. 2, John Jay wrote of America that “providence has been pleased to give this one connected country to one united people–a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs.” Such a people enjoy the same moral assumptions, the cement that forms a society rather than a cluster of groups. Though Jay’s conditions have long been obsolete, until recently Americans did possess a large body of common moral assumptions rooted in our original Anglo-Protestant culture, and expressed in law. Now, however, a variety of disintegrating influences are undermining that unanimity, not least among them is the capture of constitutional law by an extreme liberationist philosophy. America is becoming a cacophony of voices proclaiming different, or no, truths.

Alexis de Tocqueville observed that “if each undertook himself to form all his opinions and to pursue the truth in isolation down paths cleared by him alone, it is not probable that a great number of men would ever unite in any common belief. . . . Without common ideas there is no common action, and without common action men still exist, but a social body does not.”

Contrast Tocqueville with Justices Harry Blackmun and Anthony Kennedy. Justice Blackmun wanted to create a constitutional right to homosexual sodomy because of the asserted ” ‘moral fact’ that a person belongs to himself and not others nor to society as a whole.” Justice Kennedy, writing for six justices, did invent that right, declaring that “at the heart of [constitutional] liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” 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.

TownHall.com George Will June 28, 2005

WASHINGTON — The Supreme Court on Monday rendered two more hairsplitting, migraine-inducing decisions about when religious displays on public property do and do not violate the First Amendment protection against “establishment” of religion. In a case from Texas, where a Ten Commandments monument stands outside the state Capitol, the court, splintered six ways from Sunday, said: We find no constitutional violation. The second case came from Kentucky, where the Commandments displayed in several courthouses are surrounded by historical symbols and documents — e.g., copies of the Mayflower Compact, the Declaration of Independence, the Star Spangled Banner — to comply with the “reindeer rule,” more about which anon. On Monday the court recoiled from Kentucky’s displays, saying, they are unconstitutionally motivated by a “predominately religious purpose.” Not enough reindeer?

Never mind the court’s minute reasoning about the finely tuned criteria it has spun over the years. Instead, consider — as the court should have done years ago, when it began policing religious displays — a few facts about the era in which the Establishment Clause was written.

TownHall.com Charles Krauthammer (archive) June 24, 2005

WASHINGTON — What has happened to the Democrats over the past few decades is best captured by the phrase (coined by Kevin Phillips) “reactionary liberalism.” Spent of new ideas, their only remaining idea is to hang on to the status quo at all costs.

This is true across the board. On Social Security, which is facing an impending demographic and fiscal crisis, they have put absolutely nothing on the table. On presidential appointments — first, judges; and now ambassador to the United Nations — they resort to the classic weapon of Southern obstructionism: the filibuster. And on foreign policy, they have nothing to say on the war on terror, the war in Iraq or the burgeoning Arab Spring (except the refrain: “Guantanamo”).

A quarter-century ago, Daniel Patrick Moynihan noted how it was the Republicans who had become a party of ideas, while the Democrats’ philosophical foundation was “deeply eroded.” But even Moynihan would be surprised by the bankruptcy in the Democrats’ current intellectual account.