Over the last few years, the U.S. Supreme Court increasingly has
looked to foreign court rulings for guidance on American
constitutional questions. Two years ago in Atkins v. Virginia, the Court referred to the
opinion of the “world community” to help demonstrate that a “social
and professional consensus” had developed against death sentences
for convicted murderers who are mildly mentally retarded. Last
year, in striking down a state’s anti-sodomy statute in
Lawrence v. Texas, the Court cited a
decision of the European Court of Human Rights as evidence that
American precedent on gay rights was wrong. In October, Justice
Sandra Day O’Connor praised this trend, stating in a speech: “No institution of government can afford any
longer to ignore the rest of the world.” In her humble opinion,
consideration of foreign precedent by U.S. courts “may not only
enrich our own country’s decisions; it will create that all
important good impression.”
Robert H. Bork will have none of this. In his new book
Coercing Virtue: The Worldwide Rule of Judges (American
Enterprise Institute, 161 pages, $25), former D.C. Circuit Court of
Appeals Judge Bork argues against the internationalization of law
through citation of foreign precedent and the creation of
supranational legal bodies like the International Criminal Court.
Bork views this trend as an outbreak of a “transnational culture
war” through which the “New Class,” unable to enact its liberal
policy preferences democratically, imposes those preferences on an
ambivalent public. “What judges have wrought is a coup
d’état,” he writes, “slow-moving and genteel, but a coup
d’état nonetheless.”
In Bork’s view, when deciding questions of American law, judges
should look to the meaning of those laws at the time they were
adopted by the legislature; looking outside the text and historical
sources undermines democracy by imposing the views of an unelected
elite on the American populace. For example, before Roe v.
Wade was handed down, citizens who didn’t like their state’s
laws governing abortion could vote to elect representatives to
change them. However, after the Court “discovered” a right to
abortion in the Constitution, the only options left for abortion
opponents were public protest and organizing for a constitutional
amendment on the issue — neither of which have been particularly
effective. Rather than settling the issue once and for all, after
thirty years “the bitter dispute Roe began has not
subsided.”
By grounding decisions in cases like Roe on
illegitimate, extra-constitutional bases, the Supreme Court has
assumed a position of prime influence in American public life.
Instead of allowing Americans to debate complicated issues like
abortion, affirmative action, gay rights, and assisted suicide on
the state or even congressional level, these issues are fully
nationalized — they are debated in presidential elections and,
most bitterly, in the Senate Judiciary Committee during Supreme
Court confirmation hearings. As Bork writes, “The evolving morality
rationale, which the Supreme Court has used a number of times, is
actually no more than a statement that the Court believes the
morality it prefers should be enforced. The society is not
evolving, only the Court is.” Other than getting more conservative
judges appointed to federal courts — a difficult task in itself —
Bork sees virtually no way out of this mess.
If the current state of constitutional adjudication in this
country wasn’t depressing enough, Bork goes on to detail similar
antidemocratic judicial trends in the highest courts in Canada and
Israel. More important, however, is his discussion of the
increasing use of international treaties and tribunals to humiliate
America abroad. Much as dictatorships and third-world countries
band together in the United Nations to vote against U.S.-favored
foreign policy goals such as the liberation of Iraq, left-wing
judges on international human rights courts use the power of their
offices to find American political leaders guilty of nebulous “war
crimes” in military actions in places like Grenada and Kosovo.
Bork asserts that what is commonly known as “international law”
is merely politics; it should be decided by political leaders and
diplomats, not courts lacking written guidelines and legal
precedent upon which to base decisions. As with the U.N., in these
international bodies the U.S. is always outnumbered and will be
made to look foolish by those wishing to score political points in
their home countries. By participating in such farces, the U.S.
grants legitimacy to petty dictators who can use such anti-American
decisions to shore up their own regimes. Bork writes, “There can be
no authentic rule of law among nations until they have a common
political morality or are under a common sovereignty. A glance at
the real world suggests we have a while to wait.”
Bork deserves credit for timely addressing the movement toward
internationalization of law and its harmful effects on American
democracy and foreign policy. Unfortunately, Coercing
Virtue reads more like a collection of essays than a complete
treatment of the subject. Given the importance of this topic, one
hopes Bork will have reason to revisit it soon to draw a more
complete picture. American judges and diplomats could surely profit
from his guidance.
