Contributors
Bruce S. Thornton - Contributor

Bruce Thornton is a professor of Classics at Cal State Fresno and co-author of Bonfire of the Humanities: Rescuing the Classics in an Impoverished Age and author of Greek Ways: How the Greeks Created Western Civilization (Encounter Books). His most recent book is Searching for Joaquin: Myth, Murieta, and History in California (Encounter Books). [go to Thornton index]

THE RIGHT BOOKS: Equipping the California Conservative
Global Judicial Tyranny
A Right Books Review: Coercing Virtue. The Worldwide Rule of Judges by Robert H. Bork
[Bruce S. Thornton] 12/8/03

Of all the reasons for California's reputation for liberal looniness, surely the 9th Circuit Court -"the most insanely liberal of the federal appeals courts," as The Weekly Standard put it recently - is one of the most significant. Its decisions consistently seek to impose the ideological preferences and prejudices of many of its judges on a citizenry that has no intention of voting into law the dubious desiderata of liberal social activism. And to add insult to injury, these impositions are routinely camouflaged as expressions of a Constitution whose framers even now are no doubt spinning in their graves at the news, say, that the anti-establishment clause in their First Amendment has been tortured to justify removing all traces of God from public life - as the 9th did recently when it ruled that the phrase "under God" in the Pledge of Allegiance is unconstitutional.

Yet as Robert H. Bork shows in this important book, judicial activism is an international problem, albeit one inspired by America. Bork, currently a senior fellow at the American Enterprise Institute, has practiced as a lawyer, taught law at Yale, and served as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Most famously, he was nominated to the Supreme Court by Ronald Reagan in 1987; the subsequent vicious confirmation process that led to his rejection on nakedly ideological and partisan grounds has provided us with the verb "to bork," which means to viciously attack a judicial candidate not on the grounds of competence but rather on the basis of presumed retrograde attitudes to issues dear to the liberal elite.

Judicial activism is a pernicious phenomenon that erodes both law and democracy in order to promote the agenda of what Bork calls the "New Class," that congeries of journalists, professors, hectoring Hollywood stars, busybody activists, and others who are fired with a vision of utopian perfectionism attainable once the masses of oafish ignoramuses - that is, the citizens who vote - and their quaint traditionalism, especially religious beliefs, are circumvented and neutralized via "activist, ambitious, and imperialistic judiciaries." A conservatism that respects "difference, circumstance, tradition, history, and the irreducible complexity of human beings and human societies" is necessarily the enemy of such an abstract universalism that believes humans can recreate themselves and reorder their world by rationalist fiat according to some utopian ideal. Since the majority of people - their common sense uncorrupted by exposure to the sorts of ideas that addle mediocre intellectuals - respect traditional values, including religion, the New Class can't win at the ballot box; hence "constitutional courts provide 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."

Bork first surveys judicial activism from an international perspective, then devotes chapters to courts in America, Canada, and Israel. For an American lay reader, the chapters on the "internationalization of law" and on our domestic judicial activism will be the most informative. The creation of institutions such as the International Court of Justice and the European Court of Human Rights represents a very real danger to American democracy: by "creating international law the New Class hopes to outflank American legislatures and courts by having liberal views adopted abroad and then imposed on the United States." We have seen recently this phenomenon in the eagerness of some of our own Supreme Court justices to refer to other nations' judicially sanctioned liberal prejudices when adjudicating culture-war disputes such as the nature of marriage or the legitimacy of homosexuality.

Bork discusses the internationalization of law specifically in terms of human rights and the use of armed force. In regard to the latter, international law must be based on treaties or "custom" deduced from actual behavior. As Bork argues, neither can justify punishing aggressors. "Customary" international law simply doesn't exist, and if it did, it would more likely justify aggression rather than punish it. As for treaties, not all nations are signatories to a treaty, and any party to a treaty can withdraw. Finally, the judgments of such courts are pretty much unenforceable: they will be the proverbial spider webs that catch flies but that birds fly through. This fatal incoherence in the very idea of international law means that its application will necessarily reflect politics rather than principle.

The International Criminal Court, which President Bush properly rejected in 1998 to the howls of New Class tribunes, is the latest example of such politically driven institutions. The court's charter makes "aggression" a crime, even though as Bork notes the ratifying nations "were unable to agree on a definition of what constitutes aggression. We will find out the answer then the ICC makes up the rules and, given the pervasive anti-Americanism in much of the world, our soldiers and officials are likely to be subject to it." It's not hard to imagine a definition of "aggression" that excludes, say, leftist "revolutionaries" using violence to "liberate" the "oppressed" - at the same time that it includes those countries that support militarily the legitimate governments under such assaults. In fact, this is exactly what happened in the eighties when the International Court of Justice decided that the U.S. had violated international law by supporting the contras against the Sandinistas, but rejected El Salvador's request for intervention to stave off attacks by rebels supported by Nicaragua. As Bork succinctly put it, "International law is not law but politics."

The chapter on American judicial activism, however, is Bork's most valuable-- and depressing, for judicial dominance has been accompanied by a "virulent judicial activism that increasingly calls into question the authority of representative government and the vitality of traditional values as they evolve through nonjudicial institutions, public and private. Instead Americans are force-fed a new culture and new definition of virtue, all in the name of a Constitution that neither commands nor permits such results." After a brief history of judicial activism starting with Marbury v. Madison in 1803, Bork surveys the how the First Amendment and the due process and equal protection requirements of the Constitution have been distorted to advance the agenda of the New Class.

The discussion of the First Amendment is particularly interesting and sobering. As Bork reminds us, the speech the framers intended to protect is political speech, not pornography or advocacy of violent revolution. Yet today political speech has been constricted by various laws limiting contributions to political candidates even as every other kind of speech, no matter how vile or incendiary, is protected. The rapidity of this development is truly mind-boggling: in 1942 the Supreme Court unanimously ruled that "the lewd and obscene, the profane, the libelous" are Constitutionally unproblematic because they "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Today, of course, social goods such as "order" and "morality" have been discredited by the relentless moral relativism and radical individualism that hold any communal or traditional restriction of appetite and desire as oppressive. We all know the result of the Court's endorsement of this pernicious idea - "the suffocating vulgarity of popular culture," a consequence of the distortion of the First Amendment's guarantee of political speech into outlawing "the legitimate efforts of communities to slow the erosion of moral standards, to safeguard the aesthetic environment, and to set minimal standards for the decency of public discourse."

So too with the religion clauses of the First Amendment. A provision designed to protect religious freedom from the federal government has over the years evolved into the instrument of suppressing religion in public life despite the sentiments and beliefs of the majority of the citizens. The hostility to religion is, of course, a cherished tenet of the New Class, which thinks the human race's spiritual experiences and values are all dangerous illusions to be dispelled by reason and science. Unable to enshrine this bigotry in law, the New Class has instead used the courts to restrict the religious freedom of the majority while catering to the sensibilities of a minority of cranks. The greater danger, however, is the erosion of law's most fundamental support: the moral assumptions and beliefs most powerfully reinforced not by contract or reason but by religion. Take away that support, and law will begin to lose its power and with it all standards of public behavior.

Judicial activism is an insidious assault on our freedom, not as spectacular as terrorism but arguably as destructive in the long run. Our political values are predicated on the belief that the people are competent to order and run their lives, and do so through their political choices expressed by the ballot box. The New Class, on the other hand, like all elitists distrusts the people and prefers to put society in the hands of various "experts" who presumably know better how to run things and achieve the perfect world of justice and equality. Bork is pessimistic about the possibility of wresting power back from an imperial judiciary that serves the New Class, but we should still try, and his book provides a valuable tool for those making the attempt.

copyright 2003 Bruce S. Thornton

Searching for Joaquin by Bruce S. Thornton

Greek Ways by Bruce S. Thornton

Bonfire of the Humanities by Victor Davis Hanson, John Heath, Bruce S. Thornton

Plagues of the Mind by Bruce S. Thornton

Eros: The Myth of Ancient Greek Sexuality by Bruce S. Thornton

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