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Bork’s Law

It’s American -- not a confection of liberal rulings based on anti-democratic world opinion.

By 1.19.04

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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.

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About the Author

Tracy Robinson is a 2004 graduate of the George Mason University School of Law.