BORK: Turning to Constitution in Times of Stress
This column by Judge Robert H. Bork was published June 14, 2011 on The Washington Times website, and reviews ACRU Senior Legal Analyst Ken Klukowski’s and ACRU Senior Fellow Ken Blackwell’s new book.
RESURGENT: HOW CONSTITUTIONAL CONSERVATISM CAN SAVE AMERICA
By Ken Blackwell and Ken Klukowski
Threshold Editions, $27, 432 pages
The essence of conservativism is fidelity to the reality principle. Not for us, we pride ourselves, the utopian vaporings of the left. In times of stress, however, the temptation for conservatives is to reach for bromides to palliate their sufferings. Ken Blackwell and Ken Klukowski, who display sound political instincts, nevertheless illustrate the dangers of conservative bromides.
One hears much these days from Glenn Beck-style conservatives about returning to the original Constitution as a cure for Obama-inflicted miseries. We also hear pleas for a Balanced Budget Amendment to save us from fiscal disaster, and to enforce the War Powers Act to deprive the president of the ability to use armed force without gaining the consent of Congress. All of these proposals share one characteristic: They would push serious issues of national security and domestic policy into courts and thus relieve Congress of any responsibility for taking necessary but unpopular action.
The Balanced Budget Amendment would, it is hoped, direct public fury at spending cuts away from congressmen to robed bureaucrats who need not stand for election. The War Powers Resolution responds to similar pressures. It is a desperately bad idea. Indeed, there are very good reasons why we may prefer combat without a declaration of war. For one thing, the heated debates in Congress will alert any potential enemy and may trigger alliances or treaty provisions among our opponents unknown to us.
Since the founding of the Republic, the United States has often initiated armed warfare without a declaration of war. Thomas Jefferson’s order to attack the Barbary pirates is an example. In fact, without such power, the Marine Corps hymn – “From the halls of Montezuma to the shores of Tripoli” – would have to be rewritten because it refers to Tripoli and our Marines would not have been there if we had waited for a declaration of war from Congress.
I have long wished that Richard Nixon had asked me how to deal with the War Powers Resolution. I would have advised that he not veto it and thus give it added dignity, but that he return it with a letter to Congress saying “Thank you for your essay on your understanding of my war powers. When I have time, I will send you my essay on my understanding of my war powers.”
The New Deal taught us that no court can save us from a popular movement, no matter how unwise or divorced from constitutional principles. Judges can stand firm temporarily but the great engine of judicial reform, whether good or bad, is a brute fact of judges’ mortality. Bob Dole may have hit the campaign trail brandishing a copy of the 10th Amendment, which attempted to limit congressional powers to those enumerated in Article 1, Section 8 of the Constitution but the public wanted Social Security, Medicare, labor laws, etc., and the new appointments to the court gave them what they wanted.
The authors, Mr. Blackwell and Mr. Klukowski, are sounder on the judiciary’s abuse of its powers. The Supreme Court is steadily eroding America’s moral sense and ability to wage war effectively. The authors correctly identify Roe v. Wade as perhaps the worst decision ever made but, the nation being split on the issue, public pressure is ineffective to end the travesty of classifying abortion as a constitutional right. The nation now faces the prospect of court-ordered homosexual marriage. The outcome of the homosexual marriage litigation is not at all certain, though it is ominous that the court has rather consistently ruled in favor of homosexual claims in recent years.
The court has also routinely overturned prior precedent enabling the nation to wage war effectively. All of the World War II precedents concerning national security have been overturned. The alteration reflects the changed views of the media. In the invasion of Grenada, a reporter complained to a high officer that in World War II, unlike today, the press had been allowed to go to the front lines. The officer replied, “In World War II you were on our side.”
Resurgent may have limits as a scholarly work and it may be suffused with conservative fantasies that limit its value. The work is not without merit, however. Its very nature as an example of conservative fantasizing makes it a manual for activists.