Giving the bayonet to the "dictatorship of relativism" since 2002
Judge Robert Bork’s latest book, Coercing Virtue: The Worldwide Rule of Judges, is by far his slimmest volume (139 pages plus endnotes), and it is a variation on his long-running criticisms of judicial activism. This latest variation is nevertheless important and not well understood. In an introduction and four short chapters, Bork explains and dissects the problem of international judicial overreach.
Bork begins with the observation, “Judicial activism results from the enlistment of judges on one side of the culture war in every Western nation.” He explains that liberal elites from the news media, academia, arts and entertainment industry, mainline churches, and environmental lobby have formed what Bork calls a “New Class" to wage a cultural revolution. Bork charges that the New Class has enlisted successfully the judiciary in promoting an agenda of socialism and hostility to religion and traditional morality.
Bork observes this agenda first in the context of international law, which he argues “is not law but politics.” Bork lays out his case that the international law of human rights is a tool of the cultural left and the international law of the use of armed force is a dangerous instrument of anti-Americanism. Bork concludes, “international law poses a real threat to every nation’s ability to make its domestic laws and to act abroad as its national interests dictate.”
Bork then turns to case studies of judicial activism in three Western countries: the United States, Canada, and Israel. He compares and contrasts this phenomenon in controversies about freedom of speech, religion, homosexuality,and feminism, among others. Bork’s discussion of judicial activism in the United States is a wellworn subject, but its contrast with the judicial chicanery in Canada and Israel is startling. Although the United States gave birth to judicial activism, its abuses are, Bork argues, surpassed in other countries, especially in Israel,under the leadership of Aharon Barak, President of the Supreme Court of Israel. The judicial involvement in matters of national security in Israel is especially surprising.
If you desire to shun a rosy scenario, Bork, as usual,does not disappoint. He revisits the subject of censorship,with which he still sympathizes, and legislative review of judicial decisions, which he now views as impractical. Bork also discusses other remedies for judicial activism,but discounts the likelihood of success. Recent events underscore the course for Bork’s pessimism.
Coercing Virtue was written before the decision of the Supreme Court of the United States in Lawrence v. Texas, which recognized a constitutional right to engage in consensual homosexual sodomy. In the light of Bork’s critique of Romer v. Evans, one can imagine Bork’s lament of Lawrence and especially the reliance by the Court on the laws of other nations. It is ironic that, in Coercing Virtue, Bork singles out for praise the author of the majority opinion in Lawrence, Justice Anthony Kennedy, who at the annual meeting of the American Bar Association in London in 2000 rejected the critique of a London barrister regarding the need for American courts to cite the decisions of Europeans courts. Bork writes,“Kennedy, to his credit, did not succumb to this combination of insolent foreign browbeating and pusillanimous
American response.”
Bork’s description of Justice Kennedy’s defense of the American judiciary is worth repeating. Bork recounts,“If American courts cede authority to remote courts unknown to the public, [Kennedy] said, there is a risk of losing the allegiance of the people.” Bork’s gloomy retort probably would be “Don’t bet on it.”
For those concerned about both American sovereignty and judicial activism, an afternoon reading of Judge Bork’s latest work is both enlightening and sobering. This book also serves well as an introduction for students to international law and the role of the judiciary, from a conservative perspective. Judge Bork provides a solid foundation for even more work, which will surely follow.
*The Honorable William H. Pryor Jr. served as the Attorney General of the State of Alabama from 1997-2004. In February of 2004, he was appointed as Judge on the United States Court of Appeals for the Eleventh Circuit. He is Chairman of the Federalist Society’s Federalism and Separation of Powers Practice Group.
1. AtlantaThat's 7 out of 10 in states of the former Confederacy.
2. Washington, DC
3. Dallas
4. Nashville
5. Houston
6. Charlotte
7. Birmingham
8. Memphis
9. Columbus, Ohio
10. Baltimore
Born 13 June 1968 in Cobb County, Georgia. Graduated from Arapahoe High School in Littleton, Co in 1987. Enlisted in the Marine Corps as an artillery cannon crewman and attended boot camp at MCRD San Diego. Graduated from Metropolitan State College of Denver in 1993. Attained the rank of sergeant, and was honorably discharged from the Marine Corps Reserve in 1996. Graduated from Cumberland School of Law in 1997. Attended the Marine Corps Officer Candidate Course in 1998, and was commissioned a Second Lt. in March of that same year. Graduated from "The Basic School" (a mandatory six month officer training program for all recently commissioned Marine Corps officers)
in December 1998. Graduated from Naval Justice School in March 1999. Served two separate tours as a defense counsel, one as a trial counsel(prosecutor), and one as a legal assistance attorney. Returned two months ago from a tour in Iraq as a member of the War Crimes Investigation Team and is currently assigned as the Civil Law officer for MCRD Parris Island, SC.
The question here is not . . . whether the Framers believed that juries are more accurate factfinders than judges (perhaps so, they certainly thought juries were more independent . . . . Nor is the question whether juries actually are more accurate factfinders than judges (again, perhaps so). Rather, the question is whether judicial factfinding so "seriously diminishe[s] accuracy that there is an "impermissibly large risk" of punishing conduct the law does not reach . . . . The evidence is simply too equivocal to support that conclusion.
First, for every argument why juries are more accurate factfinders, there is another why they are less accurate. The Ninth Circuit dissent noted several, including juries "tendency to become confused over legal standards and to be influenced by emotion or philosophical predisposition . . . . Members of this Court have opined that judicial sentencing may yield more consistent results because of judges greater experience . . . . Finally, the mixed reception that the right to jury trial has been given in other countries, see Vidmar, The Jury Elsewhere in the World, in World Jury Systems 421?447 (N. Vidmar ed. 2000), though irrelevant to the meaning and continued existence of that right under our Constitution, surely makes it implausible that judicial factfinding so "seriously diminishe[s] accuracy as to produce an impermissibly large risk of injustice." When so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot confidently say that judicial factfinding seriously diminishes accuracy.
[I]n DeStefano v. Woods, 392 U.S. 631 (1968) . . . [the Court] refused to give retroactive effect to [its holding in] Duncan v. Louisiana, 391 U.S. 145 (1968), which applied the Sixth Amendment?s jury-trial guarantee to the States . . . ., not[ing] that, although "the right to jury trial generally tends to prevent arbitrariness and repression[,] [w]e would not assert that every criminal trial or any particular trial held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury." . . . . [and] that "[t]he values implemented by the right to jury trial would not measurably be served by requiring retrial of all persons convicted in the past by procedures not consistent with the Sixth Amendment right to jury trial." 392 U.S., at 634. If under DeStefano a trial held entirely without a jury was not impermissibly inaccurate, it is hard to see how a trial in which a judge finds only aggravating factors could be..
In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U.S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct").
The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, §1.
Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.
Sassower tried to turn her misdemeanor case into a forum for how the country chooses federal judges. She contended that the public has too little input in the selection. Her arrest came after she demanded to be heard at a Senate Judiciary hearing on the nomination of Richard Wesley, a judge on New York's highest court, to the 2nd Circuit of the U.S. Court of Appeals.We do have input into the way judges are nominated and confirmed: we elect the senators who in turn initiate the nomination process. I'm glad to see that this woman is going to have some time to think about her obstinance.
If It's Not Close, They Can't Cheat by blogger/radio talk show host/law professor Hugh Hewitt. Subtitle: "Crushing the Democrats in Every Election and Why Your Life Depends On It." (Title of chapter 1: "'I don't like you because you're going to get me killed.'" Quick: Which movie is this line from? (Give up? Click here.) And to whom do you think Hewitt is referring? (Only three chances, and the last two don't count.)) Nelson Books, 2004.
Liberwocky by veteran political writer Vic Gold. Subtitle: "What Liberals Say and What They Really Mean." WND Books, 2004.
Political Numeracy by U. of Baltimore law professor Michael Meyerson. Subtitle: "Mathematical Perspectives on Our Chaotic Constitution." W.W. Norton, 2002.
Now if once we allow people to start spiritualizing and refining, or as they might say "deepening," the sense of the word Christian, it too will speedily become a useless word. In the first place, Christians themselves will never be able to apply it to anyone. It is not for us to say who, in the deepest sense, is or is not close to the spirit of Christ. We do not see into men’s hearts. We cannot judge, and are indeed forbidden to judge. It would be wicked arrogance for us to say that any man is, or is not, a Christian in this refined sense. And obviously a word which we can never apply is not going to be a very useful word. As for the unbelievers, they will no doubt cheerfully use the word in the refined sense. It will become in their mouths simply a term of praise. In calling anyone a Christian they will mean that they thin him a good man. But that way of using the word will be no enrichment of the language, for we already have the word good. Meanwhile, the word Christian will have been spoiled for any really useful purpose it might have served [Emphasis original].
We must therefore stick to the original, obvious meaning [Emphasis added]. The name Christians was first given at Antioch (Acts 11:26) to "the disciples," to those who accepted the teaching of the apostles. There is no question of its being restricted to those who profited by that teaching as much as they should have. There is no question of its being extended to those who in some refined, spiritual, inward fashion were "far closer to the spirit of Christ" than the less satisfactory of the disciples. The point is not a theological or moral one. It is not only a question of using words so that we can all understand what is being said. When a man who accepts the Christian doctrine lives unworthily of it, it is much clearer to say he is a bad Christian than to say he is not a Christian.
[T]he Solicitor General's job includes defending the constitutionality of a lot of legislation; Olson, for example, successfully defended the execrable BCRA. So maybe it would be better for the country to have somebody less competent in the post . . .Classic.
"It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring."
[O]bjections…have been expressed against my use of the word Christian to mean one who accepts the common doctrines of Christianity [Emphasis original]. People ask: “Who are you, to lay down who is, and who is not a Christian?” or “May not many a man who cannot believe these doctrines be far more truly a Christian, far closer to the spirit of Christ, than some who do?” Now this objection is in one sense very right, very charitable, very spiritual, very sensitive. It has every available quality except that of being useful. We simply cannot, without disaster, use language as these objectors want us to use it [Emphasis added]. I will try to make this clear by the history of another, and very much less important, word.
The word gentleman originally meant something recognizable, one who had a coat of arms and some landed property [Emphasis original]. When you called someone “a gentleman” you were not paying him a compliment, but merely stating a fact. If you said he was not “a gentleman” you were not insulting him, but giving information. There was no contradiction in saying that John was a liar and a gentleman; any more than there now is in saying that James is a fool and an M.A. But then there came people who said-so rightly, charitably, spiritually, sensitively, so anything but usefully-“Ah, but surely the important thing about a gentleman is not the coat of arms and the land, but the behaviour? Surely he is the true gentleman who behaves as a gentleman should? Surely in that sense Edward is far more truly a gentleman than John?” They mean well. To be honourable and courteous and brave is of course a far better thing than to have a coat of arms. But it is not the same thing. Worse still, it is not a thing everyone will agree about. To call a man “a gentleman” in this new, refined sense, becomes, in fact, not a way of giving information about him, but a way of praising him: to deny that he is “a gentleman” becomes simply a way of insulting him. When a word ceases to be a term of description and becomes merely a term of praise, it no longer tells you facts about the object: it only tells you about the speaker’s attitude to that object [Emphasis added]. (A “nice” meal only means a meal the speaker likes.) A gentleman, once it has been spirtualised and refined out of its old coarse, objective sense, means hardly more than a man whom the speaker likes [Emphasis original]. As a result, gentleman is now a useless word [Emphasis added]. We had lots of terms of approval already, so it was not needed for that use; on the other hand if anyone (say, in a historical work) wants to use it in its old sense, he cannot do so without explanations. It has been spoiled for that purpose [Emphasis added].
To too many teachers, social workers and others in occupations with pretensions of being "profes
