To my mother, Elizabeth K. Bork,
and to the memory of
my father, Harry P. Bork
ACKNOWLEDGMENTS
As is usually the case, the efforts of a number of people go into the making of a book. Laura Hardy, my secretary, not only types, retypes, and proofreads drafts but handles the outside world in a way that makes writing possible. Not much would get done without her assistance.
Sarah Davies, executive editor at Random House Canada, has been a model of patience and accommodated my view that deadlines are infinitely flexible – almost. Rosemary Shipton proved to be an excellent and meticulous editor. Both of them were a pleasure to work with.
Evelyn Gordon rendered so much extremely valuable assistance on the chapter concerning Israel that she really should be listed as a co-author. She should not, however, be burdened with any mistakes and omissions that remain. Azure magazine, for which she frequently writes, contains a great deal of information about judicial activism in Israel in articles by Daniel Polisar, Evan Gahr, Hillel Neuer, and Mordechai Haller. Very useful commentary also appears in Jonathan Rosenbloom’s articles in the Jerusalem Post.
John C. Yoo and Jack Goldsmith read and improved the chapter on international law. Christopher Manfredi and F. L. Morton provided assistance concerning Canadian judicial activism, and Manfredi vetted that chapter. The help of all four scholars was essential and much appreciated.
Daniel Troy once more read much of the manuscript and made very useful suggestions. A number of interns provided research and commentary. Christian Bonat undertook his assignments intelligently and assiduously, producing reams of material that contributed greatly to the final product. He has worked full time, researching and writing. Summer interns, whose tenures were necessarily brief, included Jared Hansen, Richard Barrett, and Adam Storch.
I am grateful once more to the American Enterprise Institute, which supported me in this endeavor. The views expressed here are my own and are not necessarily shared by AEI or by any of the people I have thanked.
INTRODUCTION
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
The death of democracy is not likely to be an assassination from ambush. It will be a slow extinction from apathy, indifference, and undernourishment.
Robert Maynard Hutchins
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 the 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, the 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 the mass media, the explosion in size 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 the 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 the citizenry 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 meager or no practical experience of the subjects on which they expound. Intellectuals are, as Friedrick Hayek put it, “secondhand dealers in ideas.” 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. … [T]he 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.
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 the 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 is one offered a long time ago by Max Weber. 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 no longer being 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.” 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.
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.
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 changes 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.” 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. On graduation, the 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, still, 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).” “There is,” he said, “one feature of [normative conflicts] that reappears cross-nationally – a highly secularized cultural elite with a general population that continues to be deeply religious.” 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 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, at bottom, 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.”
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 culture has been eroded and 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 e
quality. 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 phrased 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 self-understanding; it has degraded the media, the entertainment industry, and popular culture; it has helped to subvert museums and other institutions 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.
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.
Coercing Virtue Page 1