Free Slouching Towards Gomorrah by Robert H. Bork Page A

himself and not others nor to society as a whole.’” 24 There are “moral facts,” but that is certainly not one of them. It would mean that no one has any obligations as a family member or as a citizen, no obligations to anyone or anything outside his own skin. Radical individualism can’t be taken any further. The Justices did not really mean what they said, of course, for their proposition would make society impossible. But the fact that they could say such a thing, however thoughtlessly, shows how strongly they lean toward radical individualism.
    It would unduly prolong this chapter to rehearse in detail what the Court has done in criminal law and in education. The rights of criminals have been steadily expanded and those of the community contracted. The exclusionary rule bars probative evidence that the police are judged, often on the sheerest technicality, to have obtained improperly. Every television viewer is familiar with the
Miranda
warnings (“You have the right to remain silent,” etc.) that the Court imposed, which have made law enforcement more difficult.
    The same thing is true of public schools, where the power to discipline has been severely circumscribed and the power to expel virtually amputated. No more the paddle for students who disruptstudy hall; no more the expulsion or segregation of students who make learning next to impossible for others. It is not a matter for wonder that the home schooling movement and private schools are growing. In their solicitude for aberrant individuals, courts have seriously infringed what once were the rights of other individuals by weakening the powers of the institutions that protected those rights.
    Judicial radical individualism weakens or destroys the authority of what sociologists call “intermediate institutions”…families, schools, business organizations, private associations, mayors, city councils, governors, state legislatures…that stand between the individual and the national government and its bureaucracies. All of this has happened within the lifetimes of many Americans. We are worse off because of it, and none of it was commanded or contemplated by the Constitution.
    The Court’s commitment to radical egalitarianism has been equally strong. Equality, the dominant theme of the Warren Court, made a sensational appearance soon after Earl Warren became Chief Justice in 1953. In 1954,
Brown
v.
Board of Education
25 held that racial segregation in public schools violated the equal protection clause of the Fourteenth Amendment. I have argued elsewhere that, though the decision was correct and could have been supported by an analysis that took into account the original understanding of the amendments meaning by those who wrote and ratified it, the Court’s weak and disingenuous opinion, by the Chief Justice, indicates that the Justices believed they were departing from the Constitution in order to promote a desirable equality. 26 The unfortunate result was that the Justices were encouraged to more adventures in egalitarianism that, unlike
Brown
, really did depart from the Constitution.
    In
Harper
v.
Virginia State Board of Elections
, 27 for example, the Court struck down an annual poll tax of SI.50 under the equal protection clause of the Fourteenth Amendment, thus overruling its own decisions that such taxes were entirely constitutional if not used for purposes of racial discrimination. The reason offered was that “notions” of equality
“do
change.” The notions that changed were the Justices’, not the legislators’, and they certainly had changed as modern liberalism took hold in the judiciary.
    The Warren Court’s obsession with equality was such that in
Reynolds
v.
Sims 28
it ordered state legislatures restructured to produce absolute equality of voters. Most states, like the federal government, elected senators from geographic districts, which meant that the senators often represented constituencies of very different sizes, as is also