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Issues Raised by Robert H. Bork in Coercing Virtue
American Enterprise Institute ^ | August 21, 2003

Posted on 04/04/2006 4:32:39 PM PDT by Conservative Coulter Fan

How liberals are using international law to promote their agenda and create a boomerang effect in the United States: 

  • By creating novel new international laws, the New Class hopes to outflank American legislatures and courts by having liberal views adopted abroad (by foreign governments and organizations such as the United Nations) and then imposed on the United States.
  • This approach is working. These new laws boomerang back to the United States; courts now cite the decisions of foreign courts in “interpreting” our Constitution. 
  • Radical decisions on social issues, values, religion, and speech that are made by foreign legislatures and courts are used to influence court decisions in the United States. 
  • Decisions made in countries (for example, Zimbabwe) that do not share our basic ideology and viewpoint on human rights are also filtering into legal arguments in the United States.
  • The effort to create new rights in each nation is well-orchestrated. For example, an international conference of judges, professors, and social activists was convened in London in 1999 to consider ways of making homosexual conduct a constitutional right in nations such as America.
  • Supreme Court judges have begun citing foreign decisions--and treaties not ratified by this country--to support their “interpretations” of the Constitution: for example, Stevens and Brennan on capital punishment; Breyer on gun control and stays of execution.

How the increased internalization of the law threatens the United States and its citizens:

  • Fueled by international resentment against American power, laws, and resolutions passed by bodies such as the United Nations and International Criminal Court (or World Court) now hamper America’s ability to defend itself and the interests of our citizens.
  • Thanks to a statute created by the ICC (signed by President Bill Clinton but then rejected by President George W. Bush), Americans can be tried by the court for alleged crimes by the countries that have ratified the treaty--even though the United States itself rejected the treaty.
  • Service-members tried by the ICC would be subject to vague standards, unaccountable prosecutors, and would not have the protection of the U.S. Constitution.

How the United Kingdom’s willingness to honor new internationalized laws aids terrorists and impedes the execution of justice:

  • Great Britain has been incapable of deporting foreign terrorists because Article 3 of the European Convention on Human Rights forbids the removal of people to countries if they might suffer “inhumane or degrading treatment.”
  • A British court refused to extradite a German citizen who was facing a double murder charge (and therefore the death penalty) in Virginia. The International Court of Justice (World Court) has tried to intercede on death penalty cases in the United States.

International law is being used in abusive (and often absurd) ways to threaten and punish global leaders: 

  • U.S. courts have agreed to try cases involving acts committed abroad by foreign nationals against foreign nationals. These cases have no connection to the United States or its citizens.
  • Other nations have claimed the authority to apply criminal sanctions to conduct having no relation to their own countries.
  • World leaders are sued and sometimes tried for crimes in nations where they did not occur: former Chinese prime minister Li Peng and Robert Mugabe of Zimbabwe, Sloban Milosovic of Yugoslavia, and Prince Charles and Margaret Thatcher (for human rights violations in Northern Ireland and Libya) in the United States; Ariel Sharon in Belgium; and Augusto Pinochet in Spain (despite the objections of his native Chile, which reached a settlement with him). President Bill Clinton was sentenced to twenty years imprisonment in Yugoslavia for the 1999 air campaign against Serbia. 

The U.S. Supreme Court on free speech:

  • The Supreme Court has inverted the speech clause in the Bill of Rights so that pornography and calls for violence and lawbreaking are better protected than political speech--robbing us of an indispensable element of democratic government.
  • Limiting campaign contributions inhibits political speech. Candidates are forced to devote large amounts of time to raising money in small amounts--time they would otherwise spend campaigning.  Fears of corruption could have been dealt with by public disclosure requirements.

The U.S. Supreme Court and religion:

  • The Supreme Court has moved from tolerance of religion and religious expression to fierce hostility. 
  • The judiciary’s power to marginalize religion in public life has vastly increased through a change in the law regarding what lawyers call “standing.” 
  • Current interpretations of “standing” have allowed taxpayers to sue under the establishment clause to prohibit federal expenditures from aiding religious schools.  Every single provision of the Constitution is immune from taxpayer or citizen enforcement--except the one used to attack manifestations of religion.
  • We are now subjected to a flood of lawsuits by people whose complaint is that they are offended by seeing a religious symbol, such as a creche or a menorah during the holidays--or even by the sight of the Ten Commandments on a plaque in a high school. 
  • Lower courts have forbidden “establishment of religion” in the most innocuous practices: for example, a high school football team praying for an injury free game or a local ordinance, which forbid the sale of non-kosher foods as kosher.

Judicial imperialism in Israel:

  • The Israeli Supreme Court is making itself the dominant institution in the nation, wielding an authority no other court in the world has achieved. It has (among other things) gained the power to choose its own members, wrested control of the attorney general from the executive branch, and exercised the authority to override national defense measures. 
  • Since 1978, the driving force has been court president Aharon Barak, who many now view as the most influential person in Israeli public life. 
  • The Barak court seized control of the office of the attorney general, giving it exhorbinant powers that have often undermined the ability of the prime minister to govern.

TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Extended News; Foreign Affairs; News/Current Events; Politics/Elections
KEYWORDS: aei; bork; internationallaw; judicialactivism; judicialtyranny; robertbork


I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation. -James Madison(1)

The nations of the West have long been afraid of catching the “American disease”—the seizure by judges of authority properly belonging to the people and their elected representatives. Those nations are learning, perhaps too late, that this imperialism is not an American disease; it is a judicial disease, one that knows no boundaries. The malady appears wherever judges have been given or have been able to appropriate the power to override decisions of other branches of government—the power of judicial review. That is why we see in virtually all Westernized nations dramatic and unplanned changes in governments and in cultures.

It is apparent even to a casual observer that, everywhere, democracy and indigenous moral traditions are in retreat. Even as more nations adopt democratic forms of government, reforms are undermined by other internal developments. This is particularly noticeable in older, advanced democracies. Increasingly, the power of the people of Western nations to govern themselves is diluted, and their ability to choose the moral environment in which they live is steadily diminished. It would be a mistake to attribute all these changes to the courts. There are many forces driving this development—the rise of relatively unaccountable and powerful bureaucracies, the decline of belief in authoritative religions, the acceptance of an ethos of extreme individual autonomy, the influence of mass media, the explosive growth of the academic intellectual class, and more. This book, however, will concentrate on what seems to me the single most powerful influence aiding and abetting all other forces: the recent ascendancy almost everywhere of activist, ambitious, and imperialistic judiciaries.

Oddly enough, the role of courts in displacing self-government and forcing new moralities has not triggered a popular backlash. Courts have been and remain far more esteemed than the democratic institutions of government, even though the courts systematically frustrate the popular will as expressed in laws made by elected representatives. Judicial activism results from the enlistment of judges on one side of the culture war in every Western nation. Despite denials by some that any such conflict exists, the culture war is an obtrusive fact. It is a struggle between the cultural or liberal left and the great mass of citizens who, left to their own devices, tend to be traditionalists. The courts are enacting the agenda of the cultural left. There is a certain embarrassment in choosing a name for this group. We often call its members the “intellectual class,” the “intelligentsia,” the “elite,” the “knowledge class,” or, dismissively, the “chattering class.” Most of these names have the unfortunate connotation of superiority to the general public. That implication is not justified and is certainly not intended here. Individual members of the intellectual class are not necessarily, or even commonly, adept at intellectual work. Rather, their defining characteristic is that they traffic, at wholesale or retail, in ideas, words, or images and have at best meager practical experience of the subjects on which they expound. Intellectuals are, as Friedrich Hayek put it, “secondhand dealers in ideas.”2

Their function is “neither that of the original thinker nor that of the scholar or expert in a particular field of thought. The typical intellectual need be neither: he need not possess special knowledge of anything in particular, nor need he even be particularly intelligent, to perform his role as intermediary in the spreading of ideas.” I will sometimes refer to these faux intellectuals as the “New Class,” a term that suggests a common class outlook and indicates the group’s relatively recent rise to power and influence. The New Class consists of print and electronic journalists; academics at all levels; denizens of Hollywood; mainline clergy and church bureaucracies; personnel of museums, galleries, and philanthropic foundations; radical environmentalists; and activist groups for a multiplicity of single causes. These are clusters of like-minded folk and they have little knowledge or appreciation of people not like themselves.

As G.K. Chesterton wrote:

In all extensive and highly civilized societies groups come into existence founded upon what is called sympathy, and shut out the real world more sharply than the gates of a monastery. . . . The men of a clique live together because they have the same kind of soul, and their narrowness is a narrowness of spiritual coherence and contentment, like that which exists in hell.
3 Without presuming to know the spiritual condition that prevails in hell—which, in Chesterton’s version, sounds more comfortable than the usual descriptions of the place and, in fact, remarkably like a faculty lounge—it is certainly true that members of the New Class are generally smug and content in their liberal outlook. It may not be immediately obvious why the New Class should be overwhelmingly liberal in outlook. Perhaps the best explanation was offered long ago by Max Weber.4 Intellectuals characteristically display a strong desire for meaning in life, and for them meaning requires transcendent principles and universalistic ideals. These qualities were once conferred by religion, but religion is not an option for intellectuals; the only alternative is the utopian outlook of the Left. Once the hard-core varieties of the Left were put out of favor by World War II and the Cold War, the intelligentsia turned to the softer and eclectic socialism of modern liberalism.

The various attitudes expressed in modern liberalism add up to an overarching sentiment that must, for the time being, make do for a more explicit utopian vision. Socialism is, of course, the only available secular utopian vision of our time. As a political and cultural philosophy or impulse, conservatism or traditionalism offers no comparable transcendentalism, no prospect of utopia. Conservatism is infrequently an option for the intelligentsia; the New Class despises the few conservatives to be found in its ranks more than it does those whom it regards as the retrograde “unwashed”—the general public. Conservative pragmatism, especially its concern with particularity—respect for difference, circumstance, tradition, history, and the irreducible complexity of human beings and human societies—does not qualify as a universal principle, but competes with and holds absurd the idea of a utopia achievable in this world.

What these rival philosophies all add up to is, in the familiar phrase, a revolution or a war within the culture. As Roger Kimball wrote: “A cultural revolution, whatever the political ambitions of its architects, results first of all in a metamorphosis in values and the conduct of life.”5 In its overt form, the culture war is fought by “elites,” the large majority of them liberal. The opposing sides in this revolutionary war are described by James Davison Hunter:

One moral vision is predicated upon the assurance that the achievements and traditions of the past should serve as the foundation of communal life and guide us in negotiating today’s and tomorrow’s challenges. Though often tinged with nostalgia, this vision is misunderstood by those who label it as reactionary. In fact, this vision is neither regressive nor static, but rather is both syncretic and dynamic. Nevertheless, the order of life sustained by this vision does seek deliberate continuity with the guiding principles inherited from the past. The goal of this vision is the reinvigoration and realization in our society of what traditionalists consider to be the noblest ideals and achievements of civilization.6
According to Hunter:
Against this traditionalism is a moral vision that is ambivalent about the legacy of the past—it regards the past in part as a curiosity, in part an irrelevance, in part a useful point of reference, and in part a source of oppression. . . . Its aim is the further emancipation of the human spirit.7
Hunter does not adequately describe the dynamism and intolerance of the liberal or socialist side of the struggle. The “further emancipation of the human spirit” is, in fact, code for a cultural revolution that seeks to change our values.

The culture war, as already suggested, is also a class war. Peter Berger wrote that “the ‘carriers’ . . . of the cultural radicalism of the late 1960s have had a very specific social character in all Western countries— overwhelmingly belonging to an upper middle class with higher education.” 8 Initiated by upper-middle-class students, the turmoil of the 1960s centered in the most prestigious universities, where the allegedly rigid and oppressive Establishment, having the same social characteristics and, in diluted form, many of the same values as the rioting students, immediately went limp. Upon graduation, radical students went where they could best influence ideas and undercut traditional values. Thirty years on, they control the left wing of American politics and almost all the nation’s cultural institutions, including the universities. Other Western nations have traveled much the same route.

The values of the New Class differ sharply from traditional values. Berger notes that “attitudes toward religion and the place of religion in society are a key determinant of who stands where in the conflict. Opposing norms span personal morality (sexual behavior and abortion) and the legitimacy of the state (religious symbols in public places, prayer in public schools).”9

“There is,” he said, “one feature of [normative conflicts] that reappears crossnationally— a highly secularized cultural elite with a general population that continues to be deeply religious.”10 Just how genuinely religious those populations are may be debatable, but it is true that, almost everywhere, the public views religion very favorably, even when regarding it as a form of therapy and being selective about obedience to its doctrines and obligations.

There is less ambiguity about the cultural elites: They are so thoroughly secularized that, in varying degrees, they not only reject personal belief but maintain an active hostility to religion and religious institutions. These issues are far from the only ones around which the culture war rages. There are, for example, such hotly contested topics as abortion, the definition of family, the teaching of values in public schools, the state monopoly of primary and secondary education, the relevance of the European heritage in increasingly multicultural societies, funding for the arts and the purpose of art itself, homosexual rights, patriotism, “social justice,” welfare, gender, and the never-ending subjects of race and ethnicity.

The New Class’s problem in most nations is that its attitudes command only a political minority. It is able to exercise influence in many ways, but when cultural and social issues become sufficiently clear, the intellectual class loses elections. It is, therefore, essential that the cultural left find a way to avoid the verdict of the ballot box. Constitutional courts provide 6 COERCING VIRTUE the necessary means to outflank majorities and nullify their votes. The judiciary is the liberals’ weapon of choice. Democracy and the rule of law are undermined while the culture is altered in ways the electorate would never choose.

It may be useful to view the culture war from an additional perspective. It is fundamentally a question of allegiance to or rejection of the socialist ideal. Kenneth Minogue wrote that even socialists [have been convinced]—for the moment—that the economy must be left alone. What has not changed is the deep passion of reformers and idealists in our civilization to take over governments and use their authority to enforce a single right way of life.

This impulse now focuses on social issues like sex, drugs, education, culture and other areas where a beneficent government aims to help what they patronizingly call “ordinary people.”11 These social or cultural issues are the area where constitutional courts regularly attack the institutions and laws of “ordinary people.” The socialist impulse remains the ruling passion of the New Class. What are the characteristics of an impulse toward socialism that manifest themselves in both the economic and the cultural aspects of life? A partial list would include a passion for a greater, though unspecified, degree of equality; a search for universal principles; radical autonomy for the individual (but only in a hierarchical and bourgeois culture—when that is replaced, there will be little tolerance for individualism); radical feminism; and a rationalism that despises tradition and religion and supposes that man and society can be made anew by rational reflection. Rationalism accounts for much of the coercion, moral as well as legal, that modern liberalism employs. If reason seems to lead to certainties about the virtuous life, it follows that those who remain unconvinced or who resist are perverse, or worse, in their refusal to accept the truth and must, therefore, be forced to cease their resistance.

To these qualities might be added a softness of spirit, a desire to ensure that no one, other than intellectual enemies, suffer the least degree of discomfort. The socialist economic vision, after all, stressed the desirability of a world in which no one experiences anything less than a comfortable material life. The same attitude may extend to the cultural and psychic components of life. It is not entirely clear whether this view is an aspect of the socialist impulse or whether it is merely the inevitable attitude prevalent in an affluent, technologically advanced society in which comfort and convenience have become the primary goods.

Whatever the explanation, an exaggerated solicitude for the feelings of people is to be found in the jurisprudence of activist courts. It is by no means an undifferentiated solicitude, however, and it contains a strong ideological component. The comfort of some often requires the discomfort of others, and the gavel falls in favor of those the New Class favors. The discredited economic theory of socialism is merely one manifestation of a strong preference for the universal over the particular, and the most universal and least individualistic social principle is equality. Economic inequality being beyond reach, the attack turns to “lifestyle” inequalities, to a demand that we cease judging people and their actions according to the traditional moral scale. Traditionalists denounce this approach as moral relativism, but it is not that at all. Cultural socialists have their own moralities, often enforced with a fierceness unknown to upholders of the old moralities. That fanaticism is manifest in what we call “political correctness.” “Nonjudgmentalism” is the first step toward a harsh judgmentalism in the service of a different morality. The war is religious in the intensity of belief, particularly on the liberal side, and because it is about the definition of virtue, morality, and the proper way of living.

The demand for radical autonomy, of which radical feminism is a component, is often characterized as a struggle for human liberation. Kimball sums up the effects of the “spirit of liberation” that exploded in the 1960s. His description is bleak, but not, I think, exaggerated: That ideology has insinuated itself, disastrously, into the curricula of our schools and colleges; it has significantly altered the texture of sexual relations and family life; it has played havoc with the authority of churches and other repositories of moral wisdom; it has undermined the claims of civic virtue and our national selfunderstanding; it has degraded the media, the entertainment industry, and popular culture; it has helped to subvert museums and other institutions 8 COERCING VIRTUE entrusted with preserving and transmitting high culture. It has even, most poignantly, addled our hearts and innermost assumptions about what counts as the good life: it has perverted our dreams as much as it has prevented us from attaining them.12 This list illustrates the tendency of autonomy and liberation to turn into uniformity and coercion once traditional or bourgeois values have been discredited and displaced. The rigid conformity of thought and speech now enforced in many colleges and universities is but a single example.

The one institution noticeably missing from Kimball’s recital is law. In discussions of cultural warfare, law is usually overlooked. Perhaps that is because the law is viewed as a separate discipline, its movements, disputes, and modes of reasoning peculiar to itself. This view is obviously inadequate. Law is a key element of every Western nation’s culture, particularly as we turn more to litigation than to moral consensus as the means of determining social control. Law is also more crucial today because courts have become more overtly cultural and political as well as legal institutions.

Courts have played major roles in most of the pathologies Kimball lists, both by breaking down the traditional legal barriers societies have erected against degeneracy and by offering moral lessons based on the emancipatory spirit. In a word, courts in general have enlisted on the liberal side of the culture war. They are infected, as is the New Class to which judges belong and to which they respond, with the socialist impulse. Just as the war is now an international phenomenon, so is judicial activism. The two necessarily go together because the new morality is not to be found in the constitutions judges profess to be interpreting. They must, therefore, invent new meanings in order to carry out the New Class program.

What does it mean to call a judge “activist” and “imperialistic”? The terms are bandied about freely by politicians and members of the media in an unedifying crossfire of slogans that passes for public debate, so it will be useful to give those terms more stable meanings. Activist judges are those who decide cases in ways that have no plausible connection to the law they purport to be applying, or who stretch or even contradict the meaning of that law. They arrive at results by announcing principles that were never contemplated by those who wrote and voted for the law. The law in question is usually a constitution, perhaps because the language of a constitution tends to be general and, in any event, judicial overreaching is then virtually immune to correction by the legislature or by the public. Though judges rule in the name of a constitution and their authority is accepted as legitimate only because they are regarded as the keepers of a sacred text in a civic religion, there is no guarantee that the results actually come from that constitution. As Bishop Hoadly said almost three centuries ago, “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke them.”13 Judges who are conscious of that fact can, of course, do their best to interpret the law as the original authors intended. They can be properly active in the enforcement of liberties confided to their care, but not activist in creating new and unwarranted rights and liberties in defiance of democratic authority. Self-denial is unattractive, and judges have manifold opportunities to surrender to the temptation to enact their own beliefs. Such performances do not accord with any known version of the rule of law, but are, instead, nothing more than politics masquerading as law. It is often easier to predict the outcome of a case by knowing the names of the judges than by knowing the applicable legal doctrine. The nations of the West are increasingly governed not by law or elected representatives, but by unelected, unrepresentative, unaccountable committees of lawyers applying no law other than their own will. The question of why most judges impose New Class attitudes is simply answered. Those attitudes are congenial to them, and the adoption of such attitudes is important to their reputations. Judges, having passed through colleges and law schools, are themselves certified members of the intelligentsia.

The ideas and values of the New Class are part of the furniture of most judges’ minds and seem self-evident. Beyond that, the prestige of a judge depends on being thought well of in universities, law schools, and the media, all bastions of the New Class. Very liberal judges are routinely labeled “moderates,” while judges who attempt to apply a law as it was originally understood are equally routinely called “conservative” or “right wing.” Whether a judge deliberately caters to these organs of the New Class or is unconsciously conditioned by praise and criticism to behave in accordance with the class’s tenets, the effect is to move him to the cultural left. A byproduct of this shift is a decline in the quality of judicial opinions, a decline that occasionally results in incoherence. Judicial systems were typically not designed for cultural and political roles. In adopting them, judges not only exceed their authority but perform poorly, often simplemindedly. Their training lies in such mundane but essential skills as reading perceptively, thinking logically, and writing clearly about precedents, statutes, and constitutions, not in pondering philosophy and social justice.

However inadequate the moral philosophizing of judges may be, in this new role courts still speak self-confidently and with ultimate authority. As the culture war has become global, so has judicial activism. Judges of international courts—the International Court of Justice (World Court), the European Court of Human Rights, and, predictably, the new International Criminal Court (ICC), among other forums—are continuing to undermine democratic institutions and to enact the agenda of the liberal Left or New Class. Internationally, that agenda contains a toxic measure of anti-Americanism. Robert Nisbet’s observation of American courts is now increasingly true of European national courts and the new international tribunals:
The crusading and coercing roles of the Supreme Court and the federal judiciary, which have been increasing in size almost exponentially in this century, have created a new and important model for all those whose primary aim is the wholesale reconstruction of American society. . . . There are more and more judges, more and more lawyers, and more and more law students and professors who have entered easily into a state of mind that sees in the Supreme Court precisely what Rousseau saw in his archetypical legislators and Bentham in his omnipotent magistrate: sovereign forces for permanent revolution.14
Everywhere judicial review has taken root, activist courts enforce New Class values, shifting the culture steadily to the left. As the battle crosses national boundaries, moreover, it becomes less a series of separate or even merely parallel wars and, at the level of legal intellectuals, is increasingly a single struggle. This shift is occurring not only because of the creation of supranational courts but because judges on national courts have begun to confer with their foreign counterparts and to cite foreign constitutional decisions as guides to the interpretation of their own constitutions. One telling indication of the judicial activism and uniformity of outlook among judges is the way that legal interpretations of constitutions with very different texts and histories are now giving way to common attitudes expressed in judicial rulings. Judicial imperialism is manifest everywhere, from the United States to Germany to Israel, from Scandinavia to Canada to Australia, and it is now the practice of international tribunals. The problem is not created simply by a few unfortunate judicial appointments, but by a deeper cause and one more difficult to combat—the transnational culture war.

A remarkable aspect of this development is the degree to which the general public is unaware that judges, as a group, systematically advance values hostile to their own. And they do not realize that individual decisions they deplore are not mistakes, but aspects of an agenda that collectively adds up to a claim to legislate the moral environment of the society. Politicians occasionally try to make an issue of lawless judicial behavior, but the response by the electorate is tepid to nonexistent. The trend to transform political and moral questions into legal issues, and thereby transfer power from elected legislatures and executives to unaccountable courts, continues.

In many Western nations today democracy is regarded as inconceivable without judicial review, even though several of those nations were functioning democracies without such review in the recent past. Perhaps Nazi atrocities across Europe created a desire for additional safeguards, though it is unlikely that the Nazis would have been deterred in the slightest, at any stage, by rulings from constitutional courts. Equally important is the American example of judicial review, which is generally regarded abroad as an unqualified success. But perhaps the most powerful impetus is New Class recognition that an activist judiciary helps to advance the ends that democratic branches of government would never sanction. The universities and the mass media, therefore, glorify the activism of the courts.

It is a dismal reflection on our times that few people other than activist groups and cultural elites, who want more of the same, seem to be concerned about the gradual replacement of democracy by judicial rule. This takeover is not a minor matter of judicial philosophy, of interest only to the theoretically inclined. At stake are personal freedoms. The fundamental freedom recognized in democracies is the right of the people to govern themselves. Specified constitutional rights are meant to be exceptions, not the rule. When, in the name of a “right,” a court strikes down the desire of the majority, expressed through laws, freedom is transferred from a larger to a smaller group, from a majority to a minority. When judges strike down a law on grounds not to be found in the constitution, we are all more free— free to act in ways that most of us had decided were unacceptable. Activist courts accomplish their ends by a combination of coercion and moral persuasion. Courts inevitably assume the role of moral teachers. Normative values pronounced, even falsely, in the name of a constitution often come to be accepted by the public and are then reflected and intensified in legislatures, schools, and other institutions. “An idea, adopted by a court,” Edward H. Levi observed, “is in a superior position to influence conduct and opinion in the community; judges, after all, are rulers. And the adoption of an idea by a court reflects the power structure in a community.”

15 The power structure today is in the hands of the New Class. People who are repeatedly told by the constitutional clerisy that the fundamental document on which their nation rests requires tolerance of obscenity, sexual deviance, abortion on demand, or the banishment of religion in public places, all in the name of “rights” and the emancipation of the human spirit, are likely to absorb the lesson as the only outlook proper for a decent person. The vocabulary of “rights” is, everywhere, the rhetoric by which judicial power advances. Rights are not only universal but dynamic, while the pragmatic considerations that oppose their expansion are not. “Rights talk” (as Mary Ann Glendon calls it16) is inspiring; prudence talk is not. Particularities are usually more difficult to defend than universals, so rights talk continues to expand in common discourse, political platitudes, and rulings of the judiciary. The tendency of many countries to turn to courts is accelerated by the rapid diversification of the racial and ethnic compositions of their populations. New self-proclaimed victim groups clamor for relief from majority rule. No binding moral or social consensus remains. Gertrude Himmelfarb finds it “ironic” that the idea of a single community “persists in spite of the fragmentation that has taken place in recent years as a result of multiculturalism, affirmative action, radical feminism, and the conflicting imperatives of the race/class/gender schema. There is, in fact, little coherence or commonality left in the ‘community’ that is at the heart of communitarianism.” 17 Yet, as Lord Devlin put it, “What makes a society is a community of ideas, not political ideas alone but also ideas about the way its members should behave and govern their lives.”18 When other forces lose their cohesive powers, it is inevitable that people will look to law as the last remaining universal bearer of values and the source of justice. This outcome may put more weight on law than it can bear, for, as Lord Devlin also said, “If the whole dead weight of sin were ever to be allowed to fall upon the law, it could not take the strain.”19 So, too, if the whole dead weight of social incoherence is to fall upon the law, as it appears to be doing, the law may well collapse under the pressure. As law begins to fail, the response is to demand more law, and the preferred form, by intellectuals and victim groups alike, is a judicially invented and fragmenting constitutional law.

Law thus perversely intensifies the strain it already bears. Courts possess very potent powers, both coercive and moral. Although that power is asserted over an entire culture, it is not always dramatic because it proceeds incrementally, but since the increments accumulate, it is all the more potent for that. What judges have wrought is a coup d’état— slow-moving and genteel, but a coup d’état nonetheless. In a book of this size it is not possible to discuss the constitutional laws of all nations. I have chosen to discuss judicial trends in international tribunals in chapter 1 as a way of demonstrating the rise of judicial activism in European nations and in international courts and forums generally. Chapter 2 is given over to the constitutional adventures of the U.S. Supreme Court, while chapter 3 discusses Canadian constitutional decisions, both because Canada had hoped, vainly as it turned out, to avoid the judicial activism they called the “American disease,” and because this book began as the 2002 Barbara Frum Lecture at the University of Toronto. (I hope that what I have to say will not cause my hosts to regret their generous hospitality.) The fourth and final chapter takes up the case of the Supreme Court of Israel because it is simply the most activist, antidemocratic court in the world and thus may, unless a merciful Providence intervenes, foreshadow the future of all constitutional courts in the Western world.

It is not to be expected that all courts will reach identical results. Given conflicting outcomes on particular issues, however, the courts of different nations display a tendency that is the same everywhere: the continuing usurpation by courts of the authority lodged in democratic government, along with the movement of societies to the cultural left. These trends may in time be halted, but at present there is little evidence of any reversal.

1 posted on 04/04/2006 4:32:40 PM PDT by Conservative Coulter Fan
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To: Conservative Coulter Fan

2 posted on 04/04/2006 4:33:13 PM PDT by Conservative Coulter Fan (I am defiantly proud of being part of the Religious Right in America.)
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To: Conservative Coulter Fan
Before the French Revolution, the justices were known as the "Nobility of the Robe." They acted in summary and dictatorial fashion, sometimes even refusing to "enroll" the king's laws in their courts.

Eventually, many of them became shorter by a head. Although that will not happen here, it is clear that civil disobedience to the courts (such as occurred in South Dakota) is beginning to build up.

3 posted on 04/04/2006 4:40:35 PM PDT by mcvey (,)
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To: mcvey

"Eventually, many of them became shorter by a head. Although that will not happen here, it is clear that civil disobedience to the courts (such as occurred in South Dakota) is beginning to build up."

You'd be shocked at how fast a society goes from being stable to mass murder. Thats why we need to fight to make sure it never gets to that point, and arm ourselves so if it does we got the biggest guns.

4 posted on 04/04/2006 4:43:32 PM PDT by RHINO369
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To: Conservative Coulter Fan
President Bill Clinton was sentenced to twenty years imprisonment in Yugoslavia for the 1999 air campaign against Serbia.

This one statement basically debunks all the rest of the points raised here regarding the growing power of international institutions. Bill Clinton hasn't lost a moment's worth of sleep over this, and has spent most of his time trotting all over the world making stupid speeches without any fear that he would be arrested and incarcerated over this.

5 posted on 04/04/2006 4:46:02 PM PDT by Alberta's Child
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To: RHINO369

I can't argue your point. Too many liberals simply do not see where their utopianism will take them. I won't live to see it, but my students may.

God help them.


6 posted on 04/04/2006 4:49:02 PM PDT by mcvey (,)
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To: Alberta's Child

I remember hearing about a similiar incident in Germany whereby a lower court, I believe, and if I'm not mistaken under "universal jurisdiction," was attempting that sort of legal action against Donald Rumsfeld and temporarily backed off because Rumsfeld threatened to cancel his visit to Germany.

7 posted on 04/04/2006 4:50:19 PM PDT by Conservative Coulter Fan (I am defiantly proud of being part of the Religious Right in America.)
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To: mcvey

There are a lot of parallels between 60s radicals (modern liberalism) and Hitler's brownshirts (Fascism).

8 posted on 04/04/2006 4:51:35 PM PDT by Conservative Coulter Fan (I am defiantly proud of being part of the Religious Right in America.)
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To: Conservative Coulter Fan
These tactics by the intolerant one-worlder left sound remarkably similar to the ACLU and those who agree with their viewpoints and goals.

Kick out the biblical God and then replace our great Judeo/Christian foundation with a new foundation.

This new foundation is based upon their radically humanist concept of reality and is rabidly hostile to our inherited and accepted Judeo/Christian foundation that had kept their vile paradigm at bay for so many years.

These people never loved our country and don't mind destroying our real Constitution since they never liked it in the first place, all the while proclaiming a great love for it.

Good job Bork.

9 posted on 04/04/2006 4:51:36 PM PDT by Old Landmarks (No fear of man, none!)
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Bork bull placemark.

10 posted on 04/04/2006 4:58:31 PM PDT by tpaine
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To: Conservative Coulter Fan
The judiciary is the liberals’ weapon of choice. Democracy and the rule of law are undermined while the culture is altered in ways the electorate would never choose.

This is the chosen tactic of all ACLU and other left wing zealots, first to destroy and then to artificially recreate our law and our culture. They care nothing for truth, intent, law or meaning.

They only care about ramming their destructive world view down throats, especially those of children.

This is why Clarence Darrow and the ACLU in 1925 stuck their nose into tiny Dayton Tennessee all the way from New York and Chicago.

Their nose should have been smacked back to New York and Chicago.

11 posted on 04/04/2006 5:01:50 PM PDT by Old Landmarks (No fear of man, none!)
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To: Conservative Coulter Fan

Wow! This is going at the top of my must read list.

12 posted on 04/04/2006 5:05:31 PM PDT by sageb1 (This is the Final Crusade. There are only 2 sides. Pick one.)
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To: Conservative Coulter Fan

Bork is excellent, how unbelievably lucid.

Why oh why did Reagan pick O'Connor instead of him? in 1981, Republicans had control of the Senate!!!

This is why I say FReepers: the Court is far more important than the Iraq war! Still, I will concede W has done well with his 2 picks, could have been better, but still ok. But if Stevens goes, will W have the political capital for someone like Janice Rogers Brown? Of course we don;t know if he'll have that chance.I'd give out loads of pork if I could get my guys on the Court. Pick the right guys for the court and liberals get virtually nothing these last 40 years.

13 posted on 04/04/2006 5:05:34 PM PDT by Piers-the-Ploughman
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To: Old Landmarks

This is the real reason Jerry Kerry lost the election. He would sell America out to the international court in a heartbeat.

14 posted on 04/04/2006 5:15:25 PM PDT by sageb1 (This is the Final Crusade. There are only 2 sides. Pick one.)
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To: sageb1

lol! Jerry=John :) Some typo, huh?

15 posted on 04/04/2006 5:16:07 PM PDT by sageb1 (This is the Final Crusade. There are only 2 sides. Pick one.)
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To: Conservative Coulter Fan


16 posted on 04/04/2006 7:20:31 PM PDT by ThreeYearLurker
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