Coercing Virtue Read Free Page B

perform poorly, often simplemindedly. Their training lies in such mundane but essential skills as reading perceptively, thinking logically, and writing clearly about precedents, statutes, and constitutions, not in pondering philosophy and social justice. However inadequate the moral philosophizing of judges may be, in this new role courts still speak self-confidently and with ultimate authority.
    As the culture war has become global, so has judicial activism. Everywhere judicial review has taken root, activist courts align themselves with and enforce New Class values, shifting the culture steadily to the left. As the battle crosses national boundaries, moreover, it becomes less a series of parallel wars and, at the level of legal intellectuals, increasingly a single struggle. This shift is occurring not only because of the creation of supranational courts but because judges on national courts have begun to confer with their foreign counterparts and to cite foreign constitutional decisions as guides to the interpretation oftheir own constitutions. One telling indication of the judicial activism and uniformity of outlook among judges is the fact that the legal interpretation of constitutions with very different texts and histories is giving way to common attitudes expressed in judicial rulings. Judicial imperialism is manifest everywhere, from the United States to Germany to Israel, from Scandinavia to Canada to Australia, and it is now the practice of international tribunals. The problem is not created simply by a few unfortunate judicial appointments, but by a deeper cause and one more difficult to combat – the transnational culture war.
    A remarkable aspect of this development is the degree to which the general public is unaware that judges, as a group, hold and systematically advance values hostile to their own. The public does not realize that individual decisions they deplore are not mistakes, but aspects of an agenda, and that, together, they add up to a claim to legislate the moral environment of the society. Politicians try occasionally to make an issue of lawless judicial behavior, but the response by the electorate is tepid to nonexistent. The trend to transform political and moral questions into legal issues, and thereby transfer power from elected legislatures and executives to unaccountable courts, continues.
    In many Western nations today democracy is regarded as inconceivable without judicial review, even though several of those nations were functioning democracies without such review in the recent past. Perhaps Nazi atrocities across Europe created a desire for additional safeguards, though it is unlikely that the Nazis would have been deterred in the slightest, at any stage, by rulingsfrom constitutional courts. Equally important is the American example of judicial review, which is generally regarded abroad as an unqualified success. But perhaps the most powerful impetus is New Class recognition that an activist judiciary helps to achieve the ends that democratic branches of government would withhold. The universities and the mass media, therefore, glorify the activism of the courts.
    It is a dismal reflection on our times that few people other than activist groups and cultural elites, who want more of the same, seem to be concerned about the gradual replacement of democracy by judicial rule. This takeover is not a minor matter of judicial philosophy, of interest only to the theoretically inclined. At stake are personal freedoms. The fundamental freedom recognized in democracies is the right of the people to govern themselves. Specified constitutional rights are meant to be exceptions, not the rule. When, in the name of a “right,” a court strikes down the desire of the majority, expressed through laws, freedom is transferred from a larger to a smaller group, from a majority to a minority. When judges strike down a law on grounds not to be found in the constitution, we are all more free – free to act in