The battle to come

Did the Founders of the Constitution know what they were doing when they organized self-government for individuals, based on certain immutable principles, or were they merely creating an outline, the rest of which could be filled in as it pleased the courts?

The answer to that question will determine the future of our country.

Since he was denied a seat on the court for which he was uniquely qualified, Robert Bork has produced a body of work that makes the case for returning to the "original intent" and understanding of the Constitution. In a compelling essay, Mr. Bork again has taken on the argument for a "living Constitution" advanced by liberals who have used the courts, instead of the legislatures, to enact an agenda that would never have been embraced by elected officials for fear of voter backlash.

Writing in the publication The New Criterion, Mr. Bork reviewed New York attorney Martin Garbus's book, Courting Disaster. Mr. Garbus sets up the ideological preview of coming liberal attractions that will demand that President Bush be stopped from putting "extremist" judges on the court. None of Mr. Garbus's assertions is true, but this is the "reality" liberals will create, and much of the media will follow.

The real issue, as Mr. Bork writes, is not naming "ultra-right ideologues" (Mr. Garbus's phrase), but whether the president "will try to appoint justices and judges who interpret laws according to the understanding of the principles of those laws when they were enacted." This is an important point, because if laws are to be made by the courts, what is the purpose of Congress?

The opposite (and currently prevailing) view of the Constitution is the judicial philosophy of Justice Felix Frankfurter. Speaking of Supreme Court justices, Frankfurter said, "It is they who speak and not the Constitution."

When the Constitution is not the supreme law, the Supreme Court will inevitably come to see itself as the supreme law. President Bush needs to give the public a brief history lesson as he nominates federal judges, and especially Supreme Court justices, if he is to counter the disinformation campaign now being prepared by those who would discard the Constitution and make up the law as it suits them.

© 2003 Tribune Media Services, Inc.