Skip to comments.Issues Raised by Robert H. Bork in Coercing Virtue
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:
How the increased internalization of the law threatens the United States and its citizens:
How the United Kingdoms willingness to honor new internationalized laws aids terrorists and impedes the execution of justice:
International law is being used in abusive (and often absurd) ways to threaten and punish global leaders:
The U.S. Supreme Court on free speech:
The U.S. Supreme Court and religion:
Judicial imperialism in Israel:
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 diseasethe 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 governmentthe 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 developmentthe 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 groups 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 hellwhich, in Chestertons version, sounds more comfortable than the usual descriptions of the place and, in fact, remarkably like a faculty loungeit 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 unwashedthe general public. Conservative pragmatism, especially its concern with particularityrespect for difference, circumstance, tradition, history, and the irreducible complexity of human beings and human societiesdoes 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 todays and tomorrows 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.6According to Hunter:
Against this traditionalism is a moral vision that is ambivalent about the legacy of the pastit 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.7Hunter 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 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.14Everywhere 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 combatthe transnational culture war.
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 détat slow-moving and genteel, but a coup détat 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.
"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.
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.
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.
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.
There are a lot of parallels between 60s radicals (modern liberalism) and Hitler's brownshirts (Fascism).
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.
Bork bull placemark.
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.
Wow! This is going at the top of my must read list.
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.
This is the real reason Jerry Kerry lost the election. He would sell America out to the international court in a heartbeat.
lol! Jerry=John :) Some typo, huh?