Coercing Virtue (3 page)

A remarkable aspect of this development is the degree to which the general public is unaware that judges, as a group, hold and systematically advance values hostile to their own. The public does not realize that individual decisions they deplore are not mistakes, but aspects of an agenda, and that, together, they add up to a claim to legislate the moral environment of the society. Politicians try occasionally 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 achieve the ends that democratic branches of government would withhold. 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.” 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 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 the 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.” 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.” 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.” 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 judge-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 an essay of this size it is not possible to discuss the constitutional laws of all nations in any great detail. I have chosen as representative examples the judicial trends in constitutional decisions in the United States, Canada, and Israel, as we will see in
chapters 2
,
3
, and
4
. The courts of these three nations run the gamut of judicial imperialism. European nations are discussed in chapter 5 as a group, insofar as they have surrendered their sovereignty in these matters to international tribunals. Those tribunals display the same activism as the national courts.

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 the 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.

J
udicial review as practiced in the United States provides a case study of what other countries may expect, and many are already experiencing, as they take up the same form of constitutionalism. The lesson is not an entirely happy one. Along with the undoubted successes of judicial dominance has come 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 definitions of virtue, all in the name of a Constitution that neither commands nor permits such results. America is moving from the rule of law to the rule of judges. Other countries that adopt judicial review will know similar results.

The United States Supreme Court adopted a form of judicial review more than two centuries ago and formalized it eleven years later, in 1803, long before the courts of any other nation. Exercised sparingly for several decades, the Court’s power to nullify the actions of the political branches of government was then increasingly deployed until, today, the exercise of that power has become routine. One of America’s boasts is that it has the oldest Constitution in the world, while other nations have found it necessary to frame one new version after another. The boast is not entirely justified. The question of amendments aside, the Constitution Americans live under today has, both by force of circumstance and judicial activism, become something radically different in many ways from the document that was drafted in
Philadelphia in 1787. Nevertheless, the United States’s experience with judicial review is now internationally regarded as an almost unqualified success and a model for other democratic nations. The reality is both more complicated and less inspiring.

There is no doubt that judicial review has produced great benefits in the protection of essential freedoms. There is also, unfortunately, little doubt that the practice increasingly denies valuable freedoms that the Constitution was meant to protect. As the epigraph at the head of this chapter suggests, judicial dominance is exerted not only over the democratic branches of government but over the Constitution itself. The fundamental question for practitioners of the law has become not what the Constitution means – interpreted according to its text, history, and structure – but what judges have said and will say about it.

The epigraph accurately states one result of the New Class’s march through the institutions of American culture – the capture of the Supreme Court of the United States by the New Class and its conversion, to a degree hitherto unprecedented, from a legal forum to a political and cultural tribunal enforcing the values of the liberal intelligentsia. Almost no one fails to realize the new and dominant role of the Court – although many New Class apologists insist, disingenuously, that the Court is now simply interpreting the Constitution. Both sides recognize, however, that the Court has far transcended any such modest and mundane role. As a predictable consequence, the Court’s work is judged politically and the
filling of vacancies on the retirement or death of Justices can set off major political battles. At such times, partisans on both sides anxiously anticipate possible departures from the Court, consider the composition of the Senate (which must confirm or reject the president’s nominees), and estimate the financial reserves each side will be able to bring to the campaign.

That much is new, though activism itself is by no means entirely unprecedented. Though isolated, there have always been instances of willful distortions of the law. In fact, the first broad claim of judicial authority to nullify acts of the legislature came in an instance of judicial activism that is impressive even by today’s standards. In
Marbury
v.
Madison
(1803), Marbury, who had been promised a patronage appointment as justice of the peace by the previous administration, challenged the new administration under President Thomas Jefferson when it failed to make the appointment. Marbury filed in the Supreme Court for an order (a mandamus) requiring James Madison, Jefferson’s secretary of state, to deliver signed commissions for the position of justice of the peace. The Court was clearly without jurisdiction in this area and the case. Article III of the Constitution lists the categories of cases within the original jurisdiction of the Court. Marbury’s case was not among them and should have been dismissed at once. Instead, Chief Justice John Marshall produced a lengthy, skillful, and intellectually dishonest opinion declaring, in effect, that Marbury was entitled to the appointment but that the Court could not force the president to make it. There can be no doubt that Marshall and the other members of the Court understood
what they were doing. Marshall, an ardent Federalist, managed in one opinion to issue a ruling in a case without having jurisdiction, charge Thomas Jefferson’s Republican administration with illegal conduct, misrepresent a statute as well as the common law, strike down as unconstitutional the distorted version of the statute he misrepresented for the occasion, and, finally, articulate a basis for a broad power of judicial review. Having accomplished all this, Marshall said he could not order relief, thus saving himself and the Court from the embarrassment of being defied by the defendant, James Madison.