There is more to judicial tyranny than a federal judge ordering a Ten Commandments monument out of the rotunda of the Alabama courts building. There is a worldwide systematic power-grab going on — and you probably aren't even aware of it.
Liberals, who are unable to win a vast worldwide culture war in a democratic form, are increasingly turning to the courts to wage their battle. Unfortunately, judges steeped in a liberal ideology and heady with power they have arrogated to themselves are responding — with decisions substantiating claims of judicial tyranny.
So writes Judge Robert Bork, a senior fellow at the American Enterprise Institute for Public Policy Research, in his latest book "Coercing Virtue: The Worldwide Rule of Judges."
Bork, one of America's most distinguished constitutional scholars, talked candidly about judicial tyranny this week with CitizenLink Associate Editor Pete Winn.
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Q. What do you think about the recent happenings down in Montgomery, Ala., regarding Justice Roy Moore and his Ten Commandments' monument?
A. If you took the Constitution as it was originally intended, the judge (Moore) would be quite right to put up the Ten Commandments (monument.) But if you take the Supreme Court's version of the Constitution, it goes against him. The Supreme Court has deformed the Establishment Clause out of all recognition.
How so?
The Establishment Clause — which says that the Congress shall make no establishment of religion — meant what it says: (The Founding Fathers) didn't want the federal government establishing a church that was preferred to all others.
Now there are two reasons for that. One is that they didn't like the idea of an established church. But the other one is that there were already established churches in some of the states — Connecticut is one of them — and they didn't want the federal government interfering with (the state) establishments. That indicates that the Establishment Clause was not the fierce anti-religious weapon it has become in the hands of the Supreme Court.
The best writing on this is a book by (University of Chicago Law Professor) Philip Hamburger, called "Separation of Church and State" (Harvard University Press). He goes into the history of the Establishment Clause in some detail. And it is quite apparent that nobody (at the time the Constitution was drawn up) was talking about the fierce hostility towards religion — or toward any manifestation of religion connected with government. What's happened, really, is due in large part to a later Supreme Court justice, Hugo Black, who played a very sinister role in changing constitutional law on that topic.
I know you talk in your new book "Coercing Virtue," about how the Supreme Court opened the door for the judiciary to marginalize religion. Let's talk about some of the issues that you raise in the book. It would seem that the attempt to circumvent legislatures and enforce viewpoints by jurisprudence is now a worldwide phenomenon.
I doubt that it occurs very often in the Muslim world, but it certainly does in the nations of the West — from the United States to Canada to Germany to England — all the way to Israel and Australia. The nations in the West are increasingly governed not by law or elected representatives, but by unelected, unrepresentative, unaccountable committees of lawyers applying the law in accordance with nothing other than their own will.
You see, we have a newly expanded intellectual class in America — expanded within the last 30 to 40 years — much larger than we've ever had before. Now when I say intellectual, I don't mean that they are particularly good at intellectual work, I mean that they're verbalists -- they deal with words and ideas and symbols.
The class we're talking about (includes) print and electronic journalists — take the anchors for the major networks, for example — and liberal university professors and law school professors. We're also taking about (some) church bureaucracies, many Hollywood celebrities and — unfortunately — a large part of the judiciary.
They all have liberal values very different from that of the average American. If their values are put up to an election, they lose. So the only way they can get their (ultraliberal) values enforced is to go to the courts, which are sympathetic to them, and they win.
This intellectual group, or class — I hate to call them an "elite" — are, as a group, very hostile to religion, and you've got that hostility now in the courts. This group is also very permissive about sexuality, so you have that now — from rulings endorsing abortion to the homosexual sodomy ruling (Lawrence v. Texas) to rulings allowing pornography in the name of free speech.
In fact, you even have computer-simulated child pornography, which is indistinguishable from the real thing, and they defend that in the name of free speech.
You can run through a list of areas, and the kinds of values that are held in a university, you will find the courts enforcing. It's part of the culture wars, and the culture war is transnational.
Obviously, Canada has been in the spotlight recently with decisions surrounding homosexual marriage.
Canada is really a kind of a funny case because, when they adopted their Charter of Rights of Freedoms, their constitution, in 1982, they said that they wanted to avoid "the American disease" — which is the disease of judges taking over policy issues which really aren't theirs. But they're wrong. They created a constitution, they chose judges who can enforce it, and they learned that judicial activism is not really an American disease, it's a judicial disease. And now they have an activist Supreme Court — a court which is at least as activist as ours, maybe more.
Canada pales, however, alongside Israel. Israel has probably the most activist court in the world.
What form does it take in Israel?
It's curious. They have managed to get an intrusive and comprehensive version of constitutional law without really having a constitution — which is not easy to do. But they pulled it off. And such is the respect for courts there that people who strongly criticize the courts, at least in the way some of us do here in the United States, have been threatened with criminal prosecution; newspapers have been threatened with closure. The "cult of the judge" is much stronger there than here.
The Israeli court has the power to choose its own members. It also took control of the attorney general away from the executive branch of the Israeli government, giving it really exorbitant powers.
Is this spread of judicial activism a case of the United States exporting liberal culture to the world? The "cultural imperialism" we're often accused of?
I don't think so. I think it is the same culture war occurring in all these nations, and when it occurs, the side that the judiciary naturally lines up with is the liberal left. Everywhere, they are pushing culture to the left.
For instance, on the homosexual "marriage" issue, I think our (U.S. Supreme Court) is a half step away from declaring homosexual "marriage" to be a right. Some of the state courts have already done that. But Canadian courts got there before we did.
I think there is an international feeling of cooperation among judges on these issues. United States judges didn't attend, but there was, for example, a meeting in Europe in which judges from various countries got together and discussed how they could push homosexual "rights" forward. Since they have common aims, and share a common intellectual class culture, it's not too surprising that they would be inciting each other.
Obviously, in the recent (U.S. Supreme Court) decision overturning homosexual sodomy laws, Justice (Anthony) Kennedy cited foreign court rulings as a basis (in part) for his decision. Is that the first time a U.S. court has done so?
No, they've done it before to support their interpretation of the Constitution. Awhile back, Justice (Stephen) Breyer, in a case involving the delay of an execution, said it would be "useful in construing our Constitution" -- he didn't say we were bound, just that it would be "useful" — to consider the rulings of the Privy Council of Jamaica, the Supreme Court of India and the Supreme Court of Zimbabwe.
Now that's about as wild as I can imagine. The Supreme Court of Zimbabwe is certainly not a model for us.
Linda Greenhouse, in The New York Times — and she seemed to approve of it — said that judges now are involved in a "worldwide constitutional conversation."
What that means is that our Constitution, with its particular text, history and meaning, will get submerged into a general liberal law constructed by liberal judges.
What about free speech? That would seem to be the first thing to go.
Well, the (U.S. Supreme) Court has already said that anything expressive is protected by the Speech Clause of the First Amendment, which is crazy.
They said, for example, that nude dancing was entitled to considerable protection because it expresses things. Well, I guess it does express things — but I wouldn't have thought it was what the First Amendment was trying to protect.
But when they come to campaign finance and issues like that, (justices) seem to lose all interest in the First Amendment. The fact is, without money, you can't run a political campaign. They have this habit of saying that "money is not speech, it's property" — well, a television studio is property, not speech. But without them both, you can't communicate to the public.
They've got the First Amendment upside down. The core of the First Amendment is political speech. They are allowing the regulation of political speech, but they won't allow the regulation of pornography. That strikes me as exactly the opposite of what it should be.
Obviously, there are stories about judicial activism all the time in the news — an appeals court, for instance, just ruled a kindergartner couldn't pass out pencils with "Jesus Loves the Little Children" printed on them. Do you think, however, that most people realize the courts are truly out of control?
I don't think they do. Of individual decisions they may say, "That's terrible," or "That's crazy." But they don't realize that there is a systematic movement towards the cultural left taking place through the courts. And the movement is always in one direction. You haven't seen any conservative cultural victories in the courts. The only one was the Boy Scouts case, in which they said an active homosexual could be barred from being a Scout leader. But I think that was because the public would have been enraged at a contrary result.
How do we address this activism, this — it's approaching tyranny, isn't it?
Yes, more and more is being taken out of the hands of democracy and transferred into the hands of five out of nine lawyers on the Supreme Court.
I don't know of any way to address it, except through the election of people who will make sure that the right kind of judges are nominated and confirmed. I don't know of any other way to do it.
FOR MORE INFORMATION
To learn more about "Coercing Virtue," visit the American Enterprise Institute's Web site.
(NOTE: Referral to Web sites not produced by Focus on the Family is for informational purposes only and does not necessarily constitute an endorsement of the sites' content.)
