This book grew out of a lecture at the University of Toronto in memory of Barbara Frum, which I had the honor to give at the invitation of her son, David Frum. Barbara Frum was Canada’s most popular television journalist. The book is called Coercing Virtue for the odd reason that that is what it is about.

When the Canadians came to write their constitution in 1982--the Charter of Rights and Freedom (the name alone tells you there was going to be trouble)--they said they wanted to avoid what they called the "American disease"--the notorious proclivity of American judges to seize powers not legitimately theirs in order to achieve results unjustified by the Constitution.

Canada learned too late that judicial imperialism is not an American disease; it is a judicial disease. The malady appears everywhere judges have the power of judicial review, the power to override the decisions of legislatures and executives.

We usually call this judicial activism--a term that is bandied about so indiscriminately that it requires definition. Judges engage in activism when their decisions cannot plausibly be related to the constitution they claim to be enforcing. That imperialism is now characteristic of just about all Western nations. That fact suggests that the problem is not due simply to some unfortunate appointments to the Court. It is inherent in men and women given power without democratic accountability.

I will suggest four things about this phenomenon. First, it is one battleground, and perhaps the decisive one, in a transnational culture war involving a war which displays the same alignment of forces in all Western nations and in which judges everywhere play the same role.

Second, and most obvious, activism is a usurpation by judges of powers rightly belonging, in a democracy, to the political branches.

Third, everywhere judges are forcing their nations’ cultures to the left, breaking down traditional moral codes and the efforts of electorates to preserve those codes.

And, fourth, the internationalization of law, often improper in any event, may be a major force in the movement toward international government, which, as we are beginning to see in the European Union, is likely to be authoritarian, if not, ultimately, tyrannical.

There are a variety of names for the so-called elites that are pressing these developments upon us. I have called them modern liberals. Irving Kristol uses the term "the New Class." But this evening I will call them "the Olympians," because that has a nastier ring to it.

It is a state of mind and spirit that has been described by Kenneth Minogue, who said, "Olympianism is the project of an intellectual elite that believes that it enjoys superior enlightenment and that its business is to spread this benefit to those living on the lower slopes of human achievement. . . . Olympianism burrowed like a parasite into the most powerful institution of the emerging knowledge economy--the universities."

Olympians are verbalists, distinguished less by their intellectual prowess, which is often slim, than by the uniformity of their anti-bourgeois attitudes, utopian musings, and authoritarian temper. When what they regard as virtue is placed on the political agenda, they lose elections. That is why they resort to the courts. If those of us on the lower slopes of human achievement do not recognize the superiority of the Olympian project, we must, by coercion, legal and moral, be brought to accept the Olympians’ version of virtue.

As Lino Graglia put it, "The nightmare of the American intellectual is that the control of public policy should fall into the hands of the American people. . . . [P]olicymaking by the justices of the Supreme Court, intellectuals all, in the name of the Constitution, is the only way in which this can be prevented." The same statement can be made about the intellectuals or Olympians and the courts of every Western nation.

Commentators on the abuse of power by imperialistic courts are faced with a target-rich environment. Because it is senior in activism, the United States Supreme Court had to be discussed. In a poor return for the hospitality of my Canadian hosts I discussed the sins of their Supreme Court.

I chose Israel as the third nation to be discussed because its Court is very likely the worst in the Western world. It has created the world’s most pervasive and intrusive constitutional law without even having a constitution--a feat not easy to accomplish.

Rather than attempt the examination of every nation’s constitutional jurisprudence--a task beyond my patience (you can only say "They did it again" so many times without putting yourself and your audience into a comatose state--I chose to cover the rest of the West by discussing the internationalization of law, especially constitutional law. This, I think, is perhaps at once the most interesting and alarming aspect of my topic.

Among the common themes of the Olympian project forwarded by the courts are a right to abortion, the normalization of homosexuality, an intense hostility to religion, limitation or abolition of the death penalty, and anti-Americanism even in America. Olympianism displays both radical individualism and radical egalitarianism--usually thought to be antagonistic but both contributing to the erosion of traditional hierarchies and values.

This audience is at least generally familiar with the policymaking adventures of the American Court. Despite the fact that there is nothing in the text or history of our Constitution to support them, the American Justices have converted the Due Process Clauses of the Fifth and Fourteenth Amendments from a guarantee of procedural fairness to a guarantee of substantive rights that they, though not the legislatures, favor. Hence we get a fictitious right of privacy that became a right to abortion and then a right to homosexual sodomy. Soon, it will encompass a right to homosexual marriage.

Free speech now includes the right to telecast oral sex and computer-simulated child pornography, while the Equal Protection of the Laws means that white applicants may be discriminated against in university admissions because of a school’s mendacious claim that preferring minorities was essential to quality education. The Court resoundingly rejected the more plausible claim by the Virginia Military Institute that an all-male student body was essential to the type of training it offered. Olympians favor minorities over whites and, in keeping with feminism, women over men.

Both an abortion and the homosexual sodomy were said to follow from an judicial manifesto whose logic cannot be discerned. This is the notorious mystery passage that seems to be the pivot of both cases.

These matters [abortion and sodomy and who knows what next], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

As Michael S. Greve wrote, the Court declared government unconstitutional.

A dissent by Justice Scalia in another case captures what is taking place on the Court:
What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional? . . . Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.

This situation has provoked some samizdat writings. My favorite offers a bit of populist wisdom on a bumper sticker that reads: "Save America. Close Yale Law School." Personally, I think it would be better to close Harvard Law School. But Yale is used as a metaphor for the entire Olympian outlook that pervades the legal system.

The situation is much the same in Canada. The substance of their Charter, though differently expressed, is similar to that of the American Bill of Rights.

But Canadians tried to provide democratic control over runaway courts. The Charter states that the legislature may expressly declare that a statute shall operate notwithstanding other provisions of the Charter.

The notwithstanding clause has largely fallen into disuse due largely to the cry that it interferes with judicial independence. That is an odd objection. The clause was built into the Charter precisely to limit to judicial independence. But the cult of the robe, the near worship of courts, is too strong.

Once the Supreme Court creates what it chooses to call a constitutional right, the psychological advantage swings, usually decisively, in favor of a position that had previously lost in the legislature. When the legislature is closely divided, the balance of forces shifts so that gaining a majority to employ the notwithstanding clause becomes difficult to impossible.

A prize example: The draft of the Charter used the phase "due process of law." But those words were objected to on the grounds that the Canadian courts could use them, as the American courts had, to develop a doctrine of substantive due process allowing the courts themselves to judge the substance of the law. The language was changed by the Justice Department responsible for drafting the Charter to the phrase ‘principles of fundamental justice’ which did not have any substantive connotation. A representative of the department, in testimony before the Special Joint Committee on the Constitution in 1981, stated:
The words "fundamental justice" would cover the same thing as what is called procedural due process, that is the meaning of due process in relation to requiring fair procedure. However, it in our view does not cover the concept of what is called substantive due process, which would impose substantive requirements as to the policy of law in question.

The Minister of Justice reported the same understanding to the committee.

The clarity of this history did not deter the Court that struck down a law on substantive grounds, discounting the testimony of the Justice Department and the Minister of Justice because it was given by civil servants and did not indicate the intentions of the legislative bodies that adopted the Charter. The absence of any counterargument in those bodies would normally, of course, indicate that they agreed with the drafters.

It is hardly surprising that the Canadian Court has gone on to create homosexual and abortion rights although the drafters of the Convention had deliberately left them unaddressed, because the public was equally divided about them. One Justice defended that performance, saying: "Changes in the legal realm, however, have been accompanied by a general failure of the political process to recognize the rights of lesbians and gays without the pressure of court decisions behind them."

The Court held that a province had behaved unconstitutionally by not listing homosexuals among the groups that were to be protected from even private discrimination. The Court rejected the argument that courts should defer to the legislature because it rested on "the very problematic distinction it draws between legislative action and inaction." Taken seriously, as one must suppose it was intended to be, that would eliminate any need for a legislature. The Court can add what the legislature chose to leave out and strike down what the legislature chose to put in. Since then, Ontario’s highest court has created a right of homosexual marriage.

The Charter was also deliberately silent on abortion but the Court promptly held that to be a Charter right. One Justice, in language resembling the "mystery passage," wrote that the rights to life and liberty, when correctly viewed, promoted "human dignity and worth," thus guaranteeing "a degree of personal autonomy over important decisions intimately affecting their private lives." Like her American counterparts, that Justice was unconcerned with what the people who adopted the Charter understood themselves to be doing.

The connoisseur of judicial hubris, however, must pronounce the Supreme Court of Israel first in class. The Israeli Court has acted without authority on so many subjects that a summary cannot begin to suggest the full bouquet. And all of this was done without the benefit of a real constitution. The Court used as if it were a constitution the Basic Law: Human Dignity and Liberty, which is extremely abstract. It is not at all clear that the Basic Law was intended to be more than precautionary. It was enacted by the Knesset in the middle of the night without even a majority of the members present. There was no discussion indicating that a constitution was being adopted, and certainly there was no understanding that the Supreme Court was to be the final arbiter of what the Basic Law meant. The law did say there was to be "no violation of rights under this Basic Law except by a law befitting the values of the State of Israel" and those values were declared to be those of Israel as a Jewish and democratic state." A declaration that has proved meaningless.

Imagine, if you can, a Supreme Court that has gained the effective power to choose its own members, that has wrested control of the attorney general from the executive branch so that the government cannot have its position presented to the court if the attorney general disagrees, has assumed the power to set aside legislation and executive action when the court disagrees with the wisdom of the policy, and claims and exercises authority to override national defense measures. The Israeli Supreme Court has done all of these and more. The President of the Court, Aharon Barak, has actually stated that the Court has the authority to judge the deployment of troops in wartime. He says that law governs everything, even the Knesset’s refusal to enact a law, with the result that private action as well as governmental action is subject to the Court. One begins to understand why a Yale law professor has regularly invited Barak to teach his students.

Worse, Barak has written that "Jewish values" should be interpreted at the highest level of abstraction--freedom, equality, justice--so that Jewish values become indistinguishable from democratic values. Thus, the Israeli court does not uphold the particularist Jewish laws and framework established by the Zionist founders. And it has consistently ruling against Orthodox Jews and the laws they inspired.

The spirit of Olympianism is explicit. President Barak wrote that when the values of Israel as a Jewish state cannot be reconciled with its values as a democratic state, the choice between them must be made according to "the views of the enlightened community in Israel." The enlightened community is a metaphor for a particular set of values, which are the same as those enforced by the courts of America and Canada. The "enlightened" are an identifiable set of people recognizable by postal zip code, social affiliation, and party loyalty. When the general public prefers a value specific to Judaism, a liberal worldview is, willy-nilly, forced upon it. It is as though the United States Court enforced the values of the Harvard and Yale law schools, which, come to think of it . . . .

An additional peril may be presented by the Court’s willingness to interfere in defense measures. That this set of notions has invaded the Israeli intelligentsia is a major threat, that it should have captured a breathtakingly imperialistic Supreme Court may turn out to be a calamity.

The sad irony is that the Supreme Court, operating with a Basic Law that specifies that Israel’s values are both Jewish and democratic, is gradually working as if it intended to produce an Israel that is neither Jewish nor democratic.
Internationalization

The experience of nations that have allowed judges ultimate power is, I have suggested, inherent in judicial review. It is, therefore, an ominous sign that the internationalization of law is happening with phenomenal speed and comprehensiveness.

The use of armed force between nations, it is said, must be tamed by the rule of law. The violation of human rights (an undefined category) by nations against their own or other nations’ citizens must be ended by courts. International codes of individual rights and freedoms, far more expansive and vague than the American Bill of Rights, are adopted to protect people from majoritarian rule.

These goals may sound laudable, and so they would be if the realities matched the abstractions. But activism ensures that they do not. That is true not only of international tribunals but courts of Western nations are beginning to cooperate to achieve Olympianism’s goals. As Minogue put it, "We may define Olympianism as a vision of human betterment to be achieved on a global scale by forging the peoples of the world into a single community based on the universal enjoyment of appropriate human rights. . . . Olympians instruct mortals, they do not obey them."

The internationalization of law, particularly constitutional law, is further along than you may think. Perhaps things began to go seriously wrong with the trials of the Nazi leaders at Nuremberg. Those trials, of course, served valuable, indeed indispensable, functions. They created a detailed record of the horrors perpetrated by the Third Reich. They ensured that the accused had actually committed the crimes with which they were charged. And they provided ample moral justification for the execution or imprisonment of the guilty--moral justification but not legal justification. The British found the moral justification sufficient and proposed summary execution of leading Nazis, but the Americans and the Soviets wanted the trappings of a judicial proceedings and brought the British over.

There are difficulties with the pretense that law was being applied. The three powers that sat in judgment had themselves waged aggressive wars, none of them with a warrant in law. It is difficult to find any examples of nations that refrained from the aggressive use of force out of respect for international law. It might have been better if the Nazis had been tried by military tribunals, as indeed thousands of them were, for Nuremberg set in motion, apparently irresistibly, the idea that there is real international law about the use of armed force and the infliction of death and torture upon humans by their own governments.

The danger of pretending that there is, or even can be, law on such matters is illustrated by the new International Criminal Court, the charter of which makes "aggression" a crime although the ratifying nations were unable to agree about what constitutes aggression. We will learn the answer when the ICC makes up the rules and, given the pervasive anti-Americanism displayed in the creation of the court, may well subject our soldiers and officials to its jurisdiction even though we refused to ratify the treaty. Even if they escape physical punishment, we will suffer propaganda defeats that will carry weight in both international and domestic politics.

It is dangerous to give the name "law" to political struggles that are essentially lawless. The problem is not merely anti-Americanism abroad; it is also the American intellectual class, which is largely hostile to American power, and uses alleged international law to attack the morality of its own government and society. International law thus becomes one more weapon in our domestic culture war.

Humanitarian concerns have now fallen into the clutches of the European Convention for Protection of Human Rights and Fundamental Freedoms as interpreted by the European Court of Human Rights at Strasbourg. Some states, such as Great Britain, have incorporated the Strasbourg Court’s interpretation of the Convention into their domestic laws, thereby adopting a written constitution whose content is controlled by judges from foreign nations. Already the United Kingdom’s courts have struck down laws that limited homosexual rights. A court made the same ruling concerning the Royal Navy. That case was filed just months after Parliament voted to uphold the ban. A law that decriminalized most homosexual conduct made an exception for group sex. The police found a videotape of a man engaging in sex with four other men. The court not only overturned the man’s conviction but awarded him damages and expenses.

We tend to ridicule Belgium for adopting universal jurisdiction which means that the courts of that country claim the power to try criminally people involved in actions that have no connection with Belgium. Spain and the U.K. may be following suit. The entire notion is absurd. David Rivkin and Lee Casey remark that the modern notion of universal jurisdiction would "permit the courts of any state to prosecute and punish the leadership of any other state for violations of international humanitarian norms."

The rule's proponents [they note] should keep in mind that any independent state, not just "right thinking" Western ones, would be entitled to prosecute "violations." [T]he courts of Yugoslavia tried (in absentia) and convicted the NATO leaders responsible for the spring 1999 air campaign against Serbia for crimes against humanity. (President Clinton was sentenced to twenty years imprisonment."

Legally, that was just as legitimate as Spain’s attempt to prosecute Pinochet. What is involved is not law but heavily biased and selective politics. Mark Falcoff tells me that both French and Spanish courts have dismissed Pinochet-type proceedings against Fidel Castro.

But United States courts are behaving in a similar fashion without even the statutory authorization that Belgium provided. There is something called the Alien Tort Claims Act of 1789 which allows aliens to sue in our courts for violations of the law of nations. The statute, which lay dormant for two hundred years, was suddenly resurrected and expanded beyond reason in 1980 when a federal appeals court upheld the award of damages for the murder in Paraguay of a Paraguayan by a Paraguayan. There have now been scores of such suits, including claims against American corporations for such things as damage to the environment and refusal to bargain collectively in foreign countries.

The statute was never intended for such use. The law of nations, as understood in 1789, was limited to relations between sovereign states and such matters as piracy. There was then no concept of international human rights. Only an activist judiciary, "cheered on," as Jeremy Rabkin put it, "by a host of international law scholars," could entertain such suits. The modern expansion of the Alien Tort Claims Act is judicial imperialism--indeed, moral presumption--at its highest pitch. Quite recently Judge Randolph delivered a devastating analysis of this development.

It is dismaying to see the United States Supreme Court beginning to take guidance from and to cite foreign constitutional decisions. One of the earliest signs was Justice Steven’s opinion finding it cruel and unusual punishment to execute a 15-year-old (1988). He cited the views of other nations, leading members of the Western European community, and nations that had abolished the death penalty altogether but by legislation rather than judicial decree, and human rights treaties signed but not ratified by the United States. Justice Breyer stated that he found "useful" decisions by the Privy Council of Jamaica, and the Supreme Courts of India and Zimbabwe.

In Lawrence v. Texas, the homosexual sodomy case, the Court cited a decision of the European Court of Human Rights. In Grutter v. Bollinger, the case involving preferences for minority applicants to a law school, Justices Ginsburg and Bryer cited the International Convention on the Elimination of All Forms of Racial Discrimination. One would have thought that the meaning of our Constitution was to be derived from the understanding of those who wrote, proposed, and ratified it, not some international consensus shown by foreign courts, international conventions that we are not party to, acts of foreign legislatures, and the like. The trend is so obvious, and so gratifying to Olympians, that Linda Greenhouse could write in the New York Times with every indication of approval that "it is not surprising that the justices have begun to see themselves as participants in a worldwide constitutional conversation."

We seem headed for a homogenized international common law of the Constitution.

The trends I have been describing are rapidly changing the form of our government and of foreign governments. It is remarkable, however, how few people are aware of the systematic drive of the courts of the Western world. It is similarly remarkable how little people know of what courts are supposed to do. The situation reminds me of Walter Bagehot’s dictum.
The characteristic danger of great nations, like the Romans and the English, which have a long history of continuous creation, is that they may at last fail from not comprehending the great institutions that they have created.

Robert H. Bork is a senior fellow at AEI.