The higher law
Carlin, David R. Jr.
OF SEVERAL HINDS David R. Carlin, Jr. THE HIGHER LAW BORK, BURKE, & MORAL RELATIVISM ime will tell, but my guess is that when the Democrats in the U.S. Senate beat Robert Bork, they...
...Still, Biden deserves credit for having been almost the only person to raise the higher law issue...
...Despite his temperamental conservatism, Robert Bork is the logical outcome of the liberal revolution in moral thinking that has swept America during the last third of the twentiethcentury...
...If conservatives, many of whom hold a religious worldview, tend to be moral absolutists, liberals, many of whom hold a secularist worldview, tend to be moral relativists...
...He is the illegitimate child of contemporary American liberalism...
...But, with one very notable exception, they did nothing of the kind...
...It is ironical that Bork's positivism follows logically from the moral relativism promoted by the culture of liberalism for the past twenty years or so...
...Senate beat Robert Bork, they achieved at best a Pyrrhic victory...
...his respect for prescription may have compelled him to accept abortion now that it is deeply rooted in America's law, custom, and prejudice...
...The U.S...
...What is especially disturbing was the anti-intellectual character of the Bork rejection...
...You would think, then, that Bork's liberal opponents, who hit him with everything but the kitchen sink, would have seized the philosophical high ground and attacked him as an enemy of the higher law...
...the party won't be able to stand many more triumphs won at such cost...
...But for Burke, prescription is ultimately justified by being grounded in the higher law...
...But this is not quite correct...
...for I do not...
...but that's a shortcoming Biden shares with Jefferson...
...despite the similarity in names, Bork is no Burke...
...There were, of course, honest persons of intelligence and good, will who opposed Bork's elevation to the Supreme Court...
...The fundamental fact about Bork the philosopher is that he is a legal positivist...
...But one of the odd aspects of the nomination debate was that liberals and conservatives were so preoccupied with the decisions they believed him likely to make had he parachuted safely onto the Court — liberals dreading those decisions, conservatives hungering and thirsting for them — that neither side gave any real attention to the deeper meaning of Bork's legal philosophy...
...Few have noted the ironic fact that many of Bork's most ardent supporters hold a philosophy totally at odds with their hero's legal positivism...
...Biden repeatedly made the point that, according to Bork, positive law precedes the rights of the citizen, not vice versa...
...Constitution declares and protects pre-existing rights...
...None of this is to say that I approve of the results of Bork's philosophizing...
...It does not create them...
...In the last analysis, he was punished because he had been faithful to the intellectual calling — a calling that often requires its votaries to play dangerous games with risky ideas...
...but it was not such who persuaded the Senate Democrats to defeat Bork...
...Had Bork been less intellectual in his approach to the law, or had he disguised his intellectualism by abstaining from publication of his more venturesome speculations, he might have passed muster...
...In other words, anti-abortionists did not notice that Bork, while he might eventually have sided with them on abortion questions, would at the same time have undermined their higher law philosophy...
...Granted, this is a thin and one-sided theory of natural law, stressing rights and ignoring duties...
...Consider, for instance, Bork and the anti-abortion movement...
...As such, they are skeptical about the existence of a higher law...
...The nominee was done in by what President Reagan (who is so rarely correct nowadays) correctly called a lynch mob — an ideological lynch mob that did not recoil from gross misrepresentation of their victim's thought and record...
...By contrast, Biden argued, the view that is both more correct and more traditionally American is that rights are "not "man-made...
...Granted, too, Biden's intuitive grasp of higher law reveals to him a generalized right of privacy (including above all the right to an abortion), something those of us with weaker intuitive powers have not been privileged to discern...
...Pro-lifers, by contrast, consider Roe v. Wade wrong because abortion violates the higher law...
...Constitution...
...The nominee denounced Roe v. Wade because he thinks the decision was based on a faulty reading of the U.S...
...If there is no higher law, if right and wrong are largely matters of personal preference, then there is no philosophically respectable alternative to some form of legal positivism...
...Further, he might not even have taken their side on abortion...
...Not so for Bork, for whom prescription itself is the highest law...
...If they grant its existence, they reduce it to a very slight content, too slight to be of much use in beating Bork about the head and shoulders...
...At a moment when many Americans are at long last waking up to the proposition that the national culture is suffering from too much sentimentality and too little intelligence, it was distressing to find liberals, who were once clearly the more enlightened end of the political spectrum, complaining that Bork had an excess of rationality and a deficiency of "heart...
...The notable exception just mentioned was Senator Joseph Biden (who, if the 18 December 1987: 729 Dukakis campaign had not had the foresight to shoot him down on the eve of the Bork hearings, would by now have become one of the leading contenders for the Democratic nomination for president, so effectively did he conduct the hearings, and with so much charm...
...Bork tells us he is a disciple of Edmund Burke...
...For Burke, as for Bork, prescription — that is to say, the established laws, customs, even prejudices of a society — has great authority...
...That is to say, he rejects the notion that the laws of the land derive from some "higher law" — what Jefferson in the Declaration spoke of as "the laws of Nature and of Nature's God.'' Instead, Bork holds that the ultimate authority for law comes from the will of the lawmaker, i.e., the people, acting across the years and centuries through their elected representatives...
...yet when he came unto his own, his own received him not...
...The reason they did not is that they are no great believers in higher law themselves...
...for them the question of whether or not the decision happens to be good constitutional law is a decidedly secondary issue...
Vol. 114 • December 1987 • No. 22
