A Country I Do Not Recognize

by Robert H. Bork

  That might have been written about the culture war in America and, indeed, in the West generally, a culture war in which the judiciary is deeply involved and for which it must accept a large degree of the responsibility. Almost every value, every virtue, every symbol, and every institution that was once taken as sacred, not to be overthrown in practice, has now been overthrown or is in question. Among these are the Constitution itself (which has become a launching pad for a politically correct agenda), marriage and the family, religion, and the flag. Marriage and the family are mocked by the string of decisions protecting the vilest pornography as free speech guaranteed by the First Amendment and by the judicial drive to normalize homosexuality. Religion is denigrated and marginalized by the deformation of the establishment clause of that same amendment. Desecration of the American flag is now protected speech.25 Some commentators dismiss the flag-burning decisions with the observation that there have since been few or no instances of desecration. The reason is probably that it is hardly worth bothering to desecrate a flag that has been reduced to a piece of cloth like any other, all by the empty rationalism of the Court. Only one institution is still regarded as sacred, and that, ironically, is the Supreme Court.

  Our culture’s abandonment of a sense of the sacred, an abandonment greatly facilitated by the Supreme Court, is a heavy loss. “Culture when it loses its sacred sense loses all sense,” Leszek Kolakowski argues.

  With the disappearance of the sacred, which imposed limits to the perfection that could be attained by the profane, arises one of the most dangerous illusions of our civilization—the illusion that there are no limits to the changes that human life can undergo, that society is “in principle” an endlessly flexible thing, and that to deny this flexibility and perfectability [sic] is to deny man’s total autonomy and thus to deny man himself. . . . Thus the bottom line, as it were, of the ideal of total liberation is the sanctioning of force and violence and thereby, finally, of despotism and the destruction of culture.26

  Mill and Kolakowski make much the same point. Mill’s argument is that the decline of the sense of the sacred inevitably loosens societal bonds such as family, patriotism, and the like, while the resultant rise in individualism leads to conflict, disorder, and, ultimately, to the dissolution of society itself. Kolakowski contends that this extreme individualism, this total liberation, made possible by the abandonment of the idea of the sacred, creates the need for coercion to replace the institutions that had held society together and thus leads to tyranny. The twentieth century saw attempts to achieve the perfectibility of man which, because that required the destruction of institutions once held sacred, led to the vilest despotisms inaugurated and maintained by violence.

  The sense that there are sacred subjects in a culture is, of course, protected by taboos, and Kolakowski argues that “the most dangerous characteristic of modernity” is “the disappearance of taboos.” “Various traditional human bonds which make communal life possible, and without which our existence would be regulated only by greed and fear, are not likely to survive without a taboo system, and it is perhaps better to believe in the validity of even apparently silly taboos than to let them all vanish.”27 He notes that most sexual taboos have been abandoned and that the remaining few, like hostility to incest and pedophilia, are under attack. An empty rationality plays the same role in shrinking taboos that it does in displacing the sense of the sacred. This is especially obvious in the Supreme Court’s destruction of taboos about vile language. In Cohen v. California,28 the Court, in an opinion by Justice John Marshall Harlan, overturned the conviction of a man for disorderly conduct because he refused to remove his jacket, worn in a courthouse, that featured the words “F. . . the Draft” (without the ellipsis). Harlan wrote that it was impossible to distinguish this from any other offensive word and, furthermore, that one man’s vulgarity is another’s lyric. The year after Cohen the Court overturned the convictions of persons for shouting “motherf. . .ing” repeatedly at a school board meeting, at police, and at a meeting in a university chapel. In short, a hitherto taboo word, even when flaunted in public, is just another word just as the American flag has been reduced to just another piece of cloth.

  In a sense, all taboos are irrational just as is regarding some things as sacred. If we experience the profane often enough, it will cease to be profane; we will become accustomed to the F-word and similar words and actions—displaying pictures of the Virgin Mary festooned with dung, for example—that we now (decreasingly) regard as off-limits. Our motion pictures, television shows, popular music, and art museums have already gone far toward accomplishing that. Well, what is wrong with that outcome? A lot is wrong: the brutalization of the culture, for one thing. The words and images reduce everything to the same level; no longer will there be hierarchies of taste, intellect, and discrimination. We will all exist in the monoculture of a barracks. Ideas will be reduced to grunts of approval or disapproval. Beauty will lose its ability to stir us. Authority will be dissipated so that our culture will fly apart or gradually disintegrate.

  The judiciary, having drained authority from other public and private institutions, will prove unable alone to sustain a common culture. The multiplication of rights and group privileges fragments rather than unifies a culture. Since an anarchistic society would be intolerable, the remedy is likely to be comprehensive and detailed coercion by legislatures and bureaucracies, subject to judicial approval, which will be forthcoming. The result may be what Tocqueville foresaw: a society whose surface is covered “with a network of small, complicated, painstaking, uniform rules” that “does not break wills, but it softens them, bends them, and directs them” and “finally reduces each nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd.” Liberationist philosophy will have produced its opposite.

  There are certainly other major centrifugal forces in American society (massive immigration and multiculturalism, for instance) and many other forces attacking the sense that anything other than individual gratification is sacred or that many taboos remain in force (popular entertainment), but the judiciary plays a prominent role in attacking our foundations. It is not difficult to see—it is almost impossible not to see—in the Supreme Court’s anticonstitutional rulings an attempt to remake society and thus to remake man himself. By denigrating the sacred, by abolishing taboos, by announcing the principle of man’s radical autonomy, the Court has embarked on a reconfiguration of our society, on what the Court seems to imagine as a perfectibility project. There is, and will be, reason to regret it.

  The battle about the place of the Court and the proper meaning of the Constitution is but one battleground, albeit a major one, in our larger cultural conflict. It is a struggle for dominance between opposing moral visions of our future. The contending forces in constitutional law have been called originalism and evolutionism. Though the terms sound abstruse, they are actually quite simple. Originalism means that the judge should interpret the Constitution according to the principles originally understood by the men who ratified it and made it law. Those principles must, of course, be applied to unforeseen circumstances. The standard example is the Fourth Amendment’s prohibition of unreasonable searches and seizures. The framers and ratifiers had in mind the intrusion of a constable into a citizen’s home or office. The Supreme Court has recognized that the same principle covers the government’s placement of electronic devices and requires a search warrant issued by a judge. Similarly, the First Amendment’s guarantee of freedom of speech has without difficulty been interpreted to prevent interference with modes of communication unknown to the ratifiers.

  The evolutionist position, held by a majority of the Supreme Court as well as by those who would achieve results no legislature will enact, is that the Constitution is a “living document” that can only be understood in the light of how the Court has interpreted it over time. Though the word “evolution” evokes a favorable response (after all, it resulted in us),
that position is preposterous. “A ‘living’ (constantly changing) constitution is in a sense no constitution at all.”29 When faced with a new question—the right to abortion or to homosexual marriage, for example—how is the Court to interpret something that has never been interpreted before? An evolutionist court invents rather than evolves a new right. Only an originalist judge can be politically neutral. The judge who looks outside the historic Constitution looks inside himself and nowhere else.

  When all else fails, the proponents of an evolutionist, politically liberal Court take to calling judges who would follow the original understanding “outside the mainstream.” The New York Times, Olympianism’s flagship, has called Justice Scalia just that.30 It is the standard liberal epithet for any judge who adheres to the original understanding in applying the Constitution’s principles to current controversies. What the cultural left calls the “mainstream” is a polluted current that has long since overflowed its banks and is wreaking devastation on America’s moral and aesthetic landscape.

  The internationalization of law displays a parallel development. There are few problems when what is involved are treaties concerning such matters as fishing rights and border adjustments in which the parties agree to settle disputes by binding arbitration or by referring them to another designated tribunal. Serious difficulties arise, however, when law attempts to deal, either by treaty or by customary international law, with subjects such as aggression, war crimes, genocide, or human rights violations.31 Given its worldwide ambitions, inspired by a false analogy to the Nuremberg Trials, law of this sort is obviously capable of interfering with American interests and values. It is, often enough, intended to do just that. Since the culture war is transnational and Olympianism is dominant across national borders, the ideological tendencies of constitutional law and international law are alike. Many of those intent on altering and strengthening international law are Americans who find even U.S. courts inadequate to their ambitions. International tribunals are created or proposed, which, in the international sphere as in the domestic arena, devolve power to ambitious judges. Henry Kissinger has tried to alert us to this danger: “In less than a decade, an unprecedented concept has emerged to submit international politics to judicial procedures. It has spread with extraordinary speed and has not been subject to systematic debate because of the intimidating passion of its advocates.”32 He warns against the tyranny of judges: “the dictatorship of the virtuous has often led to inquisitions and even witch hunts.” There is little doubt, in today’s climate, that the primary witches to be hunted are Israel and the United States. Nor is it to be supposed that antipathy to those two nations will subside in the foreseeable future. The causes of these antipathies are too complex to be explored here, but realism suggests that the United States should be very cautious about submitting itself to forms of international governance. The last two chapters of this book address aspects of the dangers inherent in law’s internationalization.

  The need to resist the current passion for international law when it conflicts, as it often does, with legitimate American interests is one lesson to be learned from David Davenport’s chapter on the “new diplomacy.” That term refers to a process in which nongovernmental organizations (NGOs), actuated by ideology, and small- and medium-sized nations (“like-minded states”) attempt to make international law that binds even nations that refuse to agree. Like much in our domestic constitutional law, internationalized law and the agendas of these new and newly assertive players are almost unknown to the American public. Davenport advises that we “watch for expansions of international law in three areas: (1) treaty-based law; (2) universal jurisdiction, as part of customary international law; and (3) international organizations and global governance.”

  Treaty-based law is not as beneficent or harmless as it may sound. The problem is not merely the heated, moralistic rhetoric that attempts to shame governments into agreeing to treaties antithetical to their interests; it is also the new style of treaties that pursues ideological ends and, increasingly, attempts to bind even nations that refuse to sign them. The most prominent current example is the Treaty of Rome that established the International Criminal Court (ICC), a court that claims jurisdiction to try and to punish American soldiers and political leaders for actions in contravention of the treaty’s highly ambiguous terms, even though the United States, among other major countries, has repudiated the treaty. Yet even when it refuses to sign, for example, the Treaty of Rome or the Kyoto Accords, the United States, as Davenport points out, is affected by the diplomatic and policy environment created that sets the agenda for what the world will discuss.

  Universal jurisdiction, a form of which is claimed by the ICC, is the idea that some acts are so heinous as to be the concern of all nations, and thus the perpetrators may be tried by an international tribunal or by any nation that can lay hands on them. Such jurisdiction is claimed by its advocates to be supported by customary law (the actual practice of nations). That claim is examined in detail in the final chapter of this book by Lee A. Casey and David B. Rivkin Jr. Here, it need be noted only that customary international law is a marvelously flexible and hence an inherently dangerous concept. Though it is said to rise from the actual practice of nations, often as not what is claimed to be customary is in fact contrary to what nations actually do. Thus, when the United States mined Nicaraguan harbors to aid democratic forces fighting the Sandinista dictatorship, the International Court of Justice condemned the action as a violation of customary law, though there was no possibility of a similar condemnation of the Soviet Union’s invasion and occupation of Afghanistan, or of many other aggressions around the world.

  These and other developments discussed by Davenport are steps, taken one issue at a time (e.g., the ICC, the Kyoto Accords, the treaty outlawing land mines, and the pressure to eliminate the death penalty), toward global governance. “A current emphasis on human security, rather than national security,” Davenport notes, “could lead to international intervention into a host of previously domestic values,” because, as he quotes Ramesh Thakur, “security policy embraces the totality of state responsibilities for the welfare of citizens from the cradle to the grave.” Yet the American sovereign state is better able to protect our values than are international organizations. That, on Davenport’s showing, as well as recent history, seems undeniable. International activists, however, want to control aspects of American domestic policy not only on such matters as the death penalty but on such subjects as the rights of women and children and the possession of firearms by individuals. As Davenport notes, “The basic stance of the globalists is that state sovereignty is an antiquated seventeenth-century concept that will eventually give way to the regional and international institutions that make up the growing web of global governance.”

  Casey and Rivkin examine the claim that customary international law already recognizes the doctrine of universal jurisdiction. They find that claim to be a myth that would be pernicious in operation. Most readers of this chapter will be surprised at how little substance there is to this widely proclaimed doctrine. There is, for example, the generally accepted notion that piracy was punished by nations exercising universal jurisdiction because no single nation had jurisdiction over crimes committed on the high seas. But Casey and Rivkin demonstrate that the body of precedent necessary to support such a claim does not exist. The doctrine was referred to, but “[a]t most, there was a largely nineteenth-century effort, principally by Great Britain but to a lesser extent by the United States, to use universal jurisdiction as a means of justifying claims to police the high seas.” And only three cases exist that did not have a link to traditional bases for jurisdiction. That hardly establishes customary law on the subject.

  Similarly, the attempt to use the Nuremberg Trials as precedent for universal jurisdiction founders on the fact that the International Military Tribunal never claimed to act on principles of universal jurisdiction but relied on the rights of victors to legislate for the defeated
state and on the Charter that established the tribunal. The authors state that Israel’s trial and execution of Adolph Eichmann may be the only instance in which universal jurisdiction was exercised but even that was “by no means a clear case,” since the Israeli court, like the tribunal at Nuremberg, held that it was bound to apply statutory authority whether or not that was consistent with international law. Casey and Rivkin examine other claimed exercises of universal jurisdiction—among them, the Pinochet case, Belgium’s failed attempt to give its courts such authority, and the American Alien Tort Claims Act—and argue persuasively that none of them establish a customary law of universal jurisdiction.

  Should present attempts to establish universal jurisdiction succeed, the outcome would be “international anarchy,” as nations adopted their own interpretations of ambiguous rules. “In fact,” the authors point out, “each and every state [would be] perfectly entitled to interpret the requirements of international law in accordance with its own values, traditions, and national interests, and then to impose that interpretation on any other through the device of a criminal prosecution.” As Americans have had recent occasion to notice, values, traditions, and national interests diverge sharply even among the nations of the European Union. One can only imagine how much worse differences would be if universal jurisdiction, and hence the right to interpret international law, were extended to the nations of Asia, Africa, and the Middle East. The International Criminal Court aspires to just such universality, which is but one example of why universal jurisdiction is a desperately bad idea and poses a genuine threat to American sovereignty, even to our right to interpret our own Constitution.