The EU is only one international body that claims the right to make and enforce laws. The Council of Europe, a pan-European organization that includes Russia, Ukraine, and other former Soviet republics, is home to the European Court of Human Rights in Strasbourg. Although separate from the EU, this organization has become the de facto Supreme Court for the whole of Europe. People with a grievance can pursue cases against their own national courts and national legislatures and obtain rulings from the ECHR made by judges who have nothing to do with their country; who do not have to bear the consequences of their own decisions; and who, in some cases, worked for the judiciary under communism.
The very existence of international courts like the ECHR violates the principle of territorial jurisdiction. According to this ancient doctrine, on which the rule of law is based, the rulings of judges are themselves embedded in the overall institutions of a state. They are governed by carefully drafted laws, and the national legislature and local authorities monitor the effect of these laws on society. So if a law gives rise to a judicial ruling whose effects are deemed unnecessarily expensive to society and its taxpayers, or detrimental in any other way, then the law can be changed. However, once international courts and international conventions become involved, this key link between national policy, the law-making process, and law enforcement is broken.
It was on these doctrines, and on this growing corpus of precedent, that the International Criminal Court was established, with the power to prosecute individuals, including heads of state and government, directly.
While Barack Obama has so far made no move to sign the ICC statute, his administration’s body language is easy enough to read. In March 2009, in a closed meeting of the Security Council, Ambassador Susan Rice declared that the ICC “looks to become an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda, and Darfur.” A week later Ben Chang, spokesman for National Security Advisor General James Jones, took a similar line, telling the Washington Times: “We support the ICC in its pursuit of those who’ve perpetrated war crimes.”
Their comments were prompted by the ICC’s decision to arraign, for the first time, a serving head of state, Sudan’s Omar al-Bashir. Now Bashir is, by any definition, an unutterable swine. Having seized power in a military putsch, he maintained himself in office by displacing and terrorizing millions of his citizens. Some 300,000 Sudanese are estimated to have been killed in his civil wars and, while the government does not bear sole responsibility for each of those deaths, it must be reckoned the worst offender.
None of this, though, detracts from the most important aspect of the case, namely that Sudan is not a signatory to the ICC treaty. By applying an accord to a country that has not ratified it, the court is overturning three hundred years of jurisprudence, trampling over the notion of territorial jurisdiction and introducing the hugely dangerous idea that contracts can be enforced against legal persons who have declined to sign them.
You doubtless will have spotted the implications. The United States has (quite rightly) refused to accept the jurisdiction of the ICC. True to their history, Americans would rather place their trust in elected representatives than in global judges. Their congressmen believe (again, rightly) that signing the convention would open the door to a flood of mischievous claims, not only against U.S. servicemen, but also against their political leaders.
But even if the United States continues to remain outside the ICC, can you be certain that the precedent established in 2009 will not be extended? The technocrats at The Hague now presume to apply their writ where they please. Never mind national sovereignty, never mind representative democracy, never mind natural justice: All that matters to our transnational elites is power.
Here we reach the ICC’s basic design flaw: Dictators will ignore it. Free democracies will no doubt allow themselves to be bullied over whether they are treating asylum seekers fairly, whether barring women from the army constitutes a human rights violation, whether a morning paper round amounts to the exploitation of children. But the real tyrants—and Bashir is a pretty good example of the genre—will react to such rulings not just by refusing to recognize them, but by digging in deeper, knowing that they can no longer expect to stand down and escape incarceration.
The ICC, in short, entrenches autocrats and weakens democrats. Its adoption represents the supreme example of the tendency described in this chapter: policy made in order to show that you’re a nice guy rather than to effect practical improvements on the ground. That this administration should support the ICC is the ultimate proof of its European credentials.
7
WE THE PEOPLE…
To preserve our independence, we must not let our rulers load us with perpetual debt. We must make our election between economy and liberty, or profusion and servitude.
—THOMAS JEFFERSON, 1817
In the early summer of 2009, I was invited to the Army and Navy Club in Washington, D.C., to deliver “A British Response to the Tea Parties.” Being British I of course said “right-oh,” or something to that effect. Then I sat down and started Googling frantically to find out what the devil these Tea Parties were.
I should perhaps explain that, when covering U.S. affairs, British journalists tend to take their cue from the American left. At that stage, most of the big American media outlets were treating the Tea Party Movement as a non-story; so, naturally, British correspondents were ignoring the phenomenon altogether.
When I eventually found some references to the Tea Party Movement, they were almost all slighting. The protestors, I read, were disgruntled rednecks who couldn’t bring themselves to accept that a mixed race president now occupied the White House. Or else they were dupes, who were being manipulated by cynical K Street lobbyists. Or perhaps they were a combination of the two.
The original Boston patriots were written off in similar terms. They were said to be a mob of “vagabonds, jack-tars, and disorderly Negroes.” Or else they were dupes, who were being manipulated by cynical plotters around Sam Adams. Or perhaps they were a combination of the two.
These days, of course, we know better. The Boston protesters of 1773 are recognized more or less for what they were: the vanguard of a popular movement that embodied the spirit of a nation.
Their twenty-first-century heirs certainly see themselves in a similar light. And, while it is always easy to mock someone else’s pretensions, they might just have a point.
It is already becoming hard to recall how total the defeat of conservative America appeared at the end of 2008. It wasn’t just that the Republican Party had been trounced at every level. It was that a consensus appeared to have formed around a set of policies that, just twelve months earlier, would have been regarded as way to the left of what either party would consider acceptable.
The bailouts and nationalizations had expanded the federal government by nearly a third. Taxation, expenditure, and borrowing were all rising exponentially. Federal officials were presuming to tell private firms how to operate, even what to pay their employees. And, most shockingly of all, the entire nation appeared to be going along with the new dispensation.
Appearances, however, can be deceptive. Not for the first time, the political class had rushed to a consensus without carrying the rest of the country. Pundits and legislators, determined to look as though they were in charge of events, decreed stimulus after stimulus, bailout after bailout. But when the opinion polls started coming in, a very different picture emerged. According to a Rasmussen poll taken at the end of May 2009, only 21 percent of Americans supported the bailing out of General Motors, with 67 percent opposed. And if the car workers got little sympathy, the bankers who were blamed for causing the crisis in the first place got even less.
Not for the first time, what the French call the pays légal (the business, media, and political elites) had become divorced from the pays réel (everyone else). The governors had lost touch with the governed.
It is not a new phenomenon. Edmund Burke, the grandfather of British conservatism (and a friend, as we shall see later, to the cause of the American colonists) described it with matchless eloquence in 1790:
Because half a dozen grasshoppers under a fern make the field ring with their importunate chink, whilst thousands of great cattle, reposed beneath the shade of the British oak, chew the cud and are silent, pray do not imagine that those who make the noise are the only inhabitants of the field; that, of course, they are many in number; or that, after all, they are other than the little, shriveled, meager, hopping, though loud and troublesome, insects of the hour.
Burke, a conservative in every sense, disliked mass protest movements. Sympathetic as he might have been to the oxen, he became nervous at the thought of them stampeding. But America was founded in a popular uprising, and the modern Tea Party patriots were in no doubt that they represented the majority.
Events would largely vindicate their view. During the summer of 2009, the Tea Partiers changed the parameters and assumptions of public discourse in America, dragging politicians back to the concerns of the majority. The Obama administration had begun with broad public sympathy: Many Americans who resented the tax level, fretted about the deficit, and loathed the idea of state-run health care were nonetheless prepared to give their leaders the benefit of the doubt. But this sympathy evaporated as it started to become clear that the political class represented no one but itself.
It was a popular movement, not a political party, that formed the opposition to Big Government. The Republicans were following, rather than leading, public opinion. Having gone along with the expansion of the state under George Bush, they started to recover their nerve. Having, in most cases, supported the Bush stimulus package, they unanimously opposed the Obama follow-up.
During this time, watching closely from abroad, I noticed a change in tone. The Republicans were de-emphasizing many of their core messages. They weren’t talking very much about guns, or abortions, or crime, or gays, or immigration, or foreign policy. In fact, they weren’t really talking about much at all except tax cuts. And you know what? It worked.
On January 20, 2010, the Republican candidate won the Massachusetts Senate seat vacated by the death of Ted Kennedy. There was, of course, a pleasing symbolism in a popular anti-tax movement carrying the day in the state that contains Boston and Bunker Hill, Concord and Lexington. But there was, perhaps, a more immediate symbolism in the Republicans taking a seat that had been owned by the Democrats since John F. Kennedy’s victory more than fifty-seven years earlier. A state with arguably the most left-wing electorate in the United States voted convincingly against the universal health-care scheme that had been Ted Kennedy’s lifetime ambition. You didn’t have to be a swivel-eyed anarcho-capitalist to feel that the federal government was expanding too far and too quickly. The people of Massachusetts took the level-headed view that the money was running out and, as in 1773, they spoke for the nation.
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When I say that the Republicans were following public opinion rather than leading it, I mean it in no slighting spirit. All successful political parties do the same.
There are limits to what a group of politicians can achieve. It is asking too much of a party simultaneously to create public demand for a policy and to position itself as the beneficiary of that demand. I have lost count of how many times despairing British voters have asked, “Why can’t you Tories make the case for tax cuts/immigration controls/less bureaucracy/getting powers back from Brussels?”
The truthful answer, feeble as it sounds, is that politicians are not regarded as disinterested. When a political party makes the case for a policy, it is assumed to be grubbing for votes. When a non-political organization makes exactly the same case, people are disposed to give it a hearing.
American Republicans have enjoyed one great advantage over British Conservatives (and, for that matter, European Christian Democrats): They are part of a wider conservative movement. A party that is just one element—and not always the most important element—of a broader family will always be in a stronger position than one that is expected simultaneously to perform the role of pressure group, newspaper, think tank, and election-winner.
Viewed from abroad, the existence of a vibrant conservative alliance is one of the most distinctive features of the American political scene. The rise of such a movement, beginning in the middle years of the twentieth century, accompanied and facilitated the rise of the Republican Party.
The first element in this conservative coalition was the think tank. Free-market institutes are now so ingrained into the conservative coalition that it is hard to imagine life without them. But, not so long ago, the left, entrenched as it was in universities, dominated the intellectual sphere.
Until the 1950s, conservatives lacked a philosophy. They had instincts, beliefs, policies, but nothing that could properly be called an ideology. This changed as think tanks began to play the role on the right that universities were playing on the left. Think-tankers didn’t just write the script, or at least parts of the script; many of their script-writers become producers and directors when the Republicans took office and looked to fill their administrations.
It is hard to overstate the impact that small-government institutes have had on American politics. I am not just talking of the great foundations in D.C.: Heritage, Cato, the American Enterprise Institute, and the like. Every state in the Union now has at least one significant conservative think tank, many of them—the NCPA in Texas, Hoover in California—with as much national influence as the Washington titans. Wherever there is a legislature, there is a free-market think tank applying the doctrines of Hayek and Rothbard to local conditions.
Such organizations have given the right a philosophy every bit as internally consistent and comprehensive as the other side’s. During the first half of the twentieth century, there was a widespread belief that intellect and progressive politics went hand-in-hand. Conservatism was not an ideology, but an amalgam of instincts: patriotism, religious faith, distrust of officialdom, and so on. This made it, in the most literal sense, a reactionary movement: a response to someone else’s doctrine, not a doctrine in its own right.
Of course, many on the left still think this way, and see conservative intellectuals as class traitors. But this view no longer strikes a chord with the wider electorate, and serves only to make its advocates seem remote and self-righteous.
While think tanks played an important part in the air war, there was a ground war to be fought, too. And it is here that the conservative movement has most impressively come into its own. The Republican Party could never have succeeded had it not been surrounded and supported by organizations that were ideologically committed to kindred causes: gun clubs, home-school associations, local radio stations, evangelical churches. These bodies didn’t simply provide foot soldiers: They were able to advance the agenda in a way that a politician couldn’t easily do without coming across as self-interested.
What’s more, these organizations recognized their shared interests. The last time I was in D.C., I spoke at the Wednesday Meeting run by Grover Norquist’s Americans for Tax Reform. Here, gathered under one roof, was Hillary Clinton’s “vast right-wing conspiracy”: vaster, indeed, than I had ever imagined. Think-tankers rubbed shoulders with congressional aides, contrarian columnists with right-wing academics, Ayn Rand devotees with anti-health-reform campaigners, Republican candidates with sympathetic businessmen. Although there were many ideological and stylistic differences among those present, they were all there to advance a common cause. I kept thinking of Bismarck’s remark about the German socialists: “We march separately, but we fight together.”
The Tea Party Movement is the latest manifestation of this tradition: a popular fronde that is unaffiliated but conservative, political but skeptical toward political parties, angry but focused. You occasionally read that the Tea Parties were synthetic, that the crowds had somehow been artificially
put together, that the rage was fabricated. In fact, the Tea Party phenomenon is an example of that rare beast, a genuinely spontaneous popular movement. One of its founders told me that it had started life as a twenty-two-person conference call, and had grown within weeks to an army of thousands.
There are limits, of course, to what such a movement can achieve. It has no legislators and can pass no laws. It has scant financial resources. Indeed, it has so far failed in its two main aims: to defeat the Obama health-care bill, and to reduce the levels of taxation and debt. But legislation takes place against a background of national debate and consensus, and this is what the Tea Partiers have helped to shift.
Just as there are limits to what a popular movement can achieve, so there are limits to what a political party can achieve. The Tea Party Movement is nourished by a very American creed, namely that governments don’t have the answers, that reform comes from below, that people are wiser than their leaders. By taking their message directly to the streets, the Tea Partiers changed minds in a way that politicians couldn’t. They have, in short, created an atmosphere in which candidates opposed to Big Government can win. Whether such candidates succeed, and whether they are able to effect a substantive change in public policy, will depend at least in part on what kind of relationship they retain with the wider movement.
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During the middle years of the twentieth century, the left seemed to have won a permanent victory. The Democrats enjoyed what looked like a structural majority in the House of Representatives and, although Republicans could occasionally win the White House, they usually did so when they fielded deliberately non-partisan candidates, such as Dwight Eisenhower.
The New Road to Serfdom Page 12