Robert Bork
(3 posts)Our Fridays are dedicated to the defense and promotion of liberty.
Having completed Friedman’s Capitalism and Freedom, but wanting to continue the theme and retain the clever alliteration, our Friday posts are now titled Freedom Friday. Today’s quote is from one of the authors of our liberty, via Robert Bork.
I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation.
—James Madison, quoted in Robert Bork, Coercing Virtue (American Enterprise Institute, 2003), 1.
Our Fridays are dedicated to the promotion of liberty. I am presently reading Coercing Virtue by Robert Bork.
That United States courts are becoming overrun with judicial activists is a contention I hardly need prove. Politicians and activist groups have discovered that, by appointing the right — and by right, I mean wrong — judges, they can accomplish societal changes that the law would never allow, nor would their constituents countenance. Many judges no longer feel limited by the law they represent, and this is exactly what liberal activists want. Our President has lamented the fact that the courts have not gotten beyond the limits placed on government in the Constitution, and you can bet he will take every opportunity to appoint judges who suffer from no such silly limitations.
One of the most frightening manifestations of judicial activism is the internationalization of law. Three United States Supreme Court justices (mention so far by Bork) have cited European law in their opinions. In one case, Justice Stephen Breyer cited the Privy Council of Jamaica, and the Supreme Courts of India and Zimbabwe! This sort of legal hanky-panky is much admired by the intellectual class (which Bork refers to as the “New Class,” and writes, “Individual members of the intellectual class are not necessarily, or even commonly, adept at intellectual work.”), who have always enthused over international tribunals and the like. It seems that the hope of lovers of centralized government is not national, but global. Of their motives and intentions, and the consequences if they succeed, Bork writes:
The internationalization is happening with phenomenal speed and comprehensiveness. With that development comes law’s seemingly inevitable accompaniment: judicial activism. For some, usually those on the Left, internationalism appears to be an almost unalloyed good. The use of armed forced between nations, it is said, must be tamed by the rule of law. The violation of human rights by nations against citizens of other nations or even their own citizens must be ended by holding the perpetrators responsible in international tribunals or, in some cases, in other national court systems that are willing to take jurisdiction. International codes of individual freedom, similar in intention to America’s Bill of Rights, are enacted to protect persons from majoritarian rule.
To many people these goals seem entirely laudable, and so would they be if the realities lived up to the abstractions but that outcome is impossible. Instead, internationalization will magnify many times over the defects to be identified in subsequent chapters in the constitutional law of the United States, Canada, and Israel: the loss of democratic government, the incursion of politics into law, and the coerced movement of cultures to the left. The New Class is an international class and it displays its socialist impulse everywhere while waging an international culture war. The internationalization of law is one way of transforming parallel struggles in the various nations of the West into a single struggle waged across national boundaries. The explanation for this internationalization of law may contain an even more sinister element. The New Class in the United States has failed to achieve its full liberal agenda in Congress, the state legislatures, and, to some extent, in federal state courts. By creating international law the New Class hopes to outflank American legislatures and courts by having liberal view adopted abroad and then imposed on the United States. History shows that the citizens of individual nations have been unable and unwilling to resist the depredations of their national courts. There is no reason to expect they will be able to resist courts that are sitting in foreign countries, composed of judges of several nationalities, and operating under vague humanistic standards to which their own nations have, however ambiguously, pledged allegiance.—Robert Bork, Coercing Virtue (American Enterprise Institute, 2003), 15–16.
Our Fridays are dedicated to the promotion of liberty.
Accumulated error is what you get when you measure from anything but your original starting point. For example, let’s look at the walls in your house. Beneath the sheetrock (or other wall paneling) is the wood frame of the wall. That frame is made up of vertical studs connected at top and bottom by horizontal plates. The studs are positioned on sixteen inch centers. For a number of reasons, it is important that that spacing be maintained fairly accurately. Therefore, when laying out the wall, the carpenter marks the stud positions on the plates, measuring each from the same point at one end of the wall. What would happen if he didn’t do that? Suppose he marked the first stud position, and then measured sixteen inches from that point to mark the next, and sixteen inches from that point to mark the next, and so on. Suppose then, in his haste, his marks were off just a little (as is often the case). If each mark was off only one sixteenth of an inch, the inaccuracy would accumulate with each new measurement until the studs were completely out of place. If, however, the carpenter measures all from the same point, he can make even larger errors without throwing the whole wall out of whack.
Now consider the reference in law to precedent. When judges refer to precedent in their rulings, they are, as it were, measuring from the previous stud rather that the beginning of the wall. They are piling one possible error on top of another. When the Supreme Court — the guardians of the standard of measurement — does this, the consequences are much more serious than in the lower courts. The Supreme Court, more than any other, should ignore precedent. Hear Should-have-been-Justice Robert Bork on the subject:
