Bad laws make bad judges.

Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (Washington, DC: AEI Press, 2003), 161 pp., $25.

JUDGES, according to Robert Bork, are increasingly usurping authority that belongs to the people and their elected representatives. This usurpation, Bork fears, is robbing Americans and the citizens of other democratic countries of the power to govern themselves. Certainly, the proper functioning of the rule of law is of immense importance in any democracy. How the law is developed and applied defines our individual liberties, protects or limits our political freedom, influences the moral tenor of our society, and shapes the character of our nation.

Robert Bork is right. In democracies--even the best and well-established ones--the functioning of the law is deteriorating. But the rule of law is a process with several tiers and many moving parts. Different bodies either institute the fundamental legal framework, or spell out specific laws, or write the subordinated rules, or apply this ever-growing artifact to specific cases. That those who apply the law from case to case ought to have considerable independence from those who create and enact laws has been part of democratic thought, thanks to Locke and Montesquieu, long before our body politic accepted the principle of universal suffrage.

However, the gravamen of Coercing Virtue is targeted on the occupants of the third branch of government, in particular Supreme Court judges who wear the label "liberal" on their sleeves. By imposing the agenda of the liberal Left, Judge Bork writes, "activist, ambitious and imperialistic judiciaries" have taken sides in an ongoing "culture war", diluting "the power of the people of Western nations to govern themselves." Other scholars and politicians have voiced similar complaints, but Bork commands our renewed attention with his supreme mastery of jurisprudential reasoning, his deep-felt moral concerns, and his compelling style. Although Bork hints that the executive and the legislative branch ought to be kept in mind as possible co-conspirators, he focuses mainly on the judiciary. Implicitly, he thus exempts the other two branches of government from his indictment.

This narrow focus, in my view, does not give enough attention to the many interactions between the judiciary and the other parts of the Western rule of law. More importantly, it overlooks a variety of remedies that could mitigate the deterioration of the rule of law. For a prosecutor who must wrestle with a complex conspiracy, it might make good sense to start his case by singling out just one of the accused, preferably the least powerful one. This approach wakes up the jury with a dramatic initial salvo. But unless followed up with the rest of the case, it can be dangerous. Children in summer camp sometimes play the game of holding a magnifying glass to the sunlight so that the focused heat will burn a carbonized dot into a white page--and if they keep this game going they will set their tents afire.

Given the many strengths of Coercing Virtue, one is tempted to urge Judge Bork to write a follow-on book that will present the remainder of his important case on the deterioration of the rule of law, at home and abroad. Here is a short sketch by a jurisprudential layman of some items that the whole case might include.

Changes in the law, we are all agreed, are necessary from time to time to take account of changing circumstances. A strong subtext of Coercing Virtue asserts that it is up to the legislature--the truly elected branch--to make such changes.

This point is indisputable, with some important qualifications. First, our judges are not hereditary monarchs. They are either appointed by elected officials and confirmed by a majority of an elected legislative body, or they are elected directly by the people. While they do not have to be re-elected like legislators, they can either be recalled or impeached. To be sure, it is difficult to get rid of "bad" judges, and for a valid reason: to give the Third Branch its independence. (Bork cites the infamous, but happily averted, attempt of Franklin Roosevelt to pack the Supreme Court.) At the same time, it is often just as difficult to get rid of "bad" legislators, largely because of the overwhelming advantage of incumbency.

Second, legislators rarely get rid of bad laws, even laws that have long become obsolete or that include egregious drafting errors. Bork gives a telling example of a badly obsolete law, more than 200 years old, that Congress never found the time--or the courage?--to rescind: the Alien Tort Claims Act of 1789. Briefly put, this law allows foreigners to sue in U.S. courts for tort committed in a foreign country in violation of the "law of nations." Instead of passing a one-sentence law to repeal this inappropriate old Act, Congress compounded the problem. It adopted legislation in 1996 (with the strong support of the Republican-controlled House!) that enables American victims of terrorist attacks abroad to sue the foreign state that allegedly sponsored the terrorist act. Sympathetic juries have awarded these victims (or their heirs) hundreds of millions of dollars, even though in some cases the State Department had warned all Americans not to venture to the places where these victims were attacked. Meanwhile, the families of our brave soldiers who have been killed defending our country receive a tiny fraction of these jury awards as compensation. To make matters worse, since the accused foreign state (for example Iran) would not pay, Congress allocated taxpayer money to pay these millions; one third of which, no doubt, goes to the trial lawyers. Recently, the trial lawyers tried to get paid from Saddam Hussein's cache of dollar bills captured by the military in Iraq--money they intended to use for Iraq's reconstruction, so as to reduce the need for reconstruction grants from the American taxpayer. Did Congress blow the whistle and abrogate their mistake of 1996? No, it was judges who stopped the robbery.

Bork's excellent chapter on the "internationalization of law" also chastises decisions by judges more strongly than bad legislative or executive branch decisions. Noting that U.S. courts needlessly resuscitated the obsolete Alien Torts Act, Bork then traces this judicial mistake to a whole series of similar harmful "internationalizations." The Alien Torts revival was the primary infection that spread to Spain, where a single judge managed to have the United Kingdom keep Pinochet under house arrest for months, and then infected Belgium, where judges began to convict Africans for murders committed in Africa (and where judges were about to convict Israeli Prime Minister Sharon). Finally, all the infected jurists in Europe rallied around the International Criminal Court. However, it was not primarily the courts that engineered this expansion. The preposterous overreaching in Belgium was made possible by legislation approved by Belgium's elected representatives, and to make the Belgian legislators abrogate this law, it took the threat of U.S. Secretary of Defense Donald Rumsfeld to pull NATO meetings out of Belgium. Likewise, in the case of the International Criminal Court, U.S. lawyers from the executive branch (not Supreme Court Judges) participated in the drafting of the court's misconstrued statute.

Among members of Congress, to be sure, a few heroes have valiantly striven to rescind some of the most perniciously faulty legislation, overcoming the inertia of executive branch bureaucrats and the lack of courage, or conviction, of their colleagues in Congress. Representative Henry Hyde (R-IL) stands out as such a hero. He steadfastly struggled for six years to get rid of thirty year-old legislation that authorized federal and state law enforcement authorities to seize houses, cars, boats and other assets before filing charges, merely on the unproven suspicion that the owner was associated with the narcotics trade. Hyde finally prevailed in June 1999, with 375 to 48 votes. The Clinton Administration tried to dilute this measure, perhaps prompted by law enforcement agencies that had benefited financially from seized assets that were not returned to the owners.

ON FREEDOM of speech, Bork concludes that the Supreme Court majorities too vigorously defend subversive advocacy, pornography and obscenity but have "gone soft" in "protecting political speech"--by which he means the Court's acceptance of the recent laws limiting campaign contributions. Trying to restrict campaign contributions is like pushing down a pillow on one side, only to see it bulge on the other. Almost everything done about campaign contributions--well intentioned or not--turns out to be deeply flawed. The one exception might be disclosure requirements, since speech, to be free, need not be anonymous. Unfortunately, free speech is an issue whose borders are so fuzzy that it becomes a favorite arena for all the litigious folks. Yet, let us not lose sight of the overarching importance of our constitutionally guaranteed freedom of speech, just because some Americans have nothing better to do than to sue each other. As Bork puts it splendidly:

   Perhaps no provisions of the Constitution
   are more central to American democracy
   and culture than the First Amendment's
   guarantees of speech and religious freedom.

But in his next chapter on Canada, Bork suddenly expresses some sympathy for Canadian restrictions on hate speech, which he contrasts favorably with the "free speech dogma in the United States." Happily, on the following page he has second thoughts. He reflects on the virulence of "political correctness", and worries--with good reason--"that criminal law will come to be used to stifle even legitimate discussion of group and cultural differences." Indeed, this has already happened in Europe and Canada. Consider this outrageous example: The European Commission against Racism and Intolerance in Vienna, an organ of the Council of Europe, issued a report in 2001 which sternly reprimanded members of parliament in the United Kingdom for the way in which they discussed with their constituents urgent problems of asylum seekers. Seeking to censure freedom of speech in this essential and most legitimate context, the official commission said in its report:

   Regrettably, many politicians have contributed
   to, or at least not adequately prevented,
   public debate taking on an increasingly intolerant
   line with at times racist and xenophobic
   overtones. Public statements have tended to
   depict asylum seekers and "economic
   migrants", explicitly or by inference, as a threat
   to security, economic stability and social peace.
   [Italics added.]

Note that two years later this same commission became infamous in the American press because it tried to suppress a study it had been asked to carry out on the extent to which Islamic immigrants were responsible for the recent antisemitic violence in Europe.

Even though the Supreme Court may be excessively tolerant of obscenity and pornography, we should be grateful that its hard-line defense of free speech is holding the dike against this tide of "politically correct" censorship that has swept over Canada and Europe. Somewhat begrudgingly Bork seems to agree: "it may turn out in the long run that America's courts were inadvertently wise ... to refuse to judge speech by its content."

THE encroachment on states' rights is a twin brother of the internationalization of law--that creeping process that Coercing Virtue so effectively criticizes. But for both these encroachments that seek to restrict peoples' freedom for self-government, bad judicial decisions are only partly to blame. To a far greater extent, these two campaigns are led by lawmakers and bureaucrats installed in Washington or Brussels. They want to lord over the hoi polloi in the provinces: the states of the United States, the member-states of the European Union, the nations of the world.

Let us admit that the liberal encroachment on constitutional rights for self-government began in our Republic. The thin edge of the knife was the Sixteenth Amendment authorizing the federal income tax. It was passed in 1913 with astonishingly little discussion or dissent. Only decades later did it become clear that the Sixteenth Amendment could be used to wreck the Tenth Amendment (which reserves to the states, or the people, the powers not delegated to Washington, or not prohibited to the states by the Constitution). The high lords in Washington figured out that they could use the federal income tax to suck money out of the states and then return some of it with conditions attached that would have violated the Tenth Amendment if enacted as freestanding law. So the elected members of Congress--not the bad judges--are coercing virtue among the hoi polloi in the provinces, from Oregon to Florida.

Speaking of Oregon, we are reminded that the executive branch also developed new tricks to coerce virtue among the folks in the hinterland. And in a Republican administration to boot. Attorney General John Ashcroft moved against an Oregon law, passed and carefully debated by the elected state government, that authorizes physicians (under narrowly specified conditions) to assist patients dying of an incurable illness to end their lives. Ashcroft is trying to use federal law regulating prescription drugs to prevent doctors in Oregon from following state law. This seems to contradict Bork's finding that "nothing in the Constitution prevents today's citizen from enacting statutes that specify additional liberties."

The European Union does not yet have a "European" income tax. But it thrives and expands on a legal foundation that is the equivalent of our commerce clause: Brussels can rule over any human activity for which the high lords at the center assert the slightest connection with European "free trade" (for example, the length of sausages or the ingredients of beer). American commentators condescendingly make fun of the European "commerce clause", not realizing that Washington's attack on the Tenth Amendment has shown the way. And more importantly, not realizing that given Europe's influence on the internationalization of law (so well documented in Coercing Virtue), the mistakes made by Brussels will be imitated by the UN, which has already tried to levy a UN tax on international business transactions--rebuffed so far (with Senator Jesse Helms's help). How long will this dike hold? The construction of the European Union started with noble intentions. The Maastricht Treaty included the EU's counterpart for the Tenth Amendment-the widely touted subsidiarity principle. Now, subsidiarity has ominously been watered down in the new EU draft constitution. One can see the train has left the station, with World Government as its faraway destination.

Where are the intrepid conservatives who will stop this train? Former Representative Bob Barr understands this problem in its dual implication. On the one hand, the states of the American union (and one assumes the member-states of the EU) have the right to protect themselves against the spill-over of laws from other states. This is precisely what Barr achieved in 1996 when he convinced Congress to pass (and President Clinton to sign) the Defense of Marriage Act. This act allows states to refuse recognition for same-sex "marriages" performed in other states. Recently, Barr published an eloquent and carefully reasoned argument against the attempt to pass a constitutional amendment on the definition of marriage.

As Barr put it:

   Marriage is a quintessential state issue....
   Make no mistake, I do not support same-sex
   marriages. But I also am a firm believer that
   the Constitution is no place for forcing social
   policies on states.

We need more Henry Hydes and Bob Barrs who can explain to their fellow Republicans and to Democrats that America does not need a Talibanesque Ministry for the Promotion of Virtue and the Prevention of Vice. We must preserve--or perhaps restore--the correct reading of our Constitution so that (in Judge Bork's words) "nothing in the Constitution prevents today's citizens from enacting statutes that specify additional liberties." To learn more about how bad legislation compounds the mistakes of bad judges, we look forward to your next book, Judge Bork.

The Next World War

What can we say of this strategic doctrine [the Bush doctrine]? Well, the first thing to be recognized is its breathtaking scope, its huge ambition to do no less than to effect a transformation of the political universe--according to some of its language, to stamp out evil and war between states, to create a benign world. Students of international politics who belong to the realist school--as I do--tend to see such goals as utopian, beyond even the reach of a country with the enormous power of the United States. The English journalist Frank Johnson once wittily remarked, "In politics, Utopia is always an important country, always one of the Great Powers." While America has enough strength to defeat all other adversaries and rivals, it remains to be seen whether she can take on and conquer Utopia.

--Owen Harries, Benign or Imperial (Sydney: ABC Books, 2004), p. 26.

Dr. Fred C. Ikle is with the Center for Strategic and International Studies and was Undersecretary of Defense in the Reagan Administration.