| 摘要 | Liberalism–the modern, not the classical variety–dominates the strategic heights of our culture: the universities, media, churches, Hollywood, and the foundations. Liberalism’s most powerful position, arguably, is its dominance in the law.
Judges on both national and international tribunals have generally aligned themselves with “elite” classes that despise conservatism and its culture, and are thus well to the left of the general public. The result is not only the steady decline of self-government and national sovereignty but also the pushing of culture to the left. Today’s liberalism celebrates the liberation of the individual, but that liberation is only from the traditional culture of the community, and from the laws that reinforce it. The individual is not often liberated from the demands of authoritarian liberalism, sometimes referred to, though inadequately, as “political correctness.”
The task for legal conservatism is to preserve what we have and to regain as much as possible of what we have lost–to wit, the fundamental design of our government and a society that attains a more wholesome balance between the freedom of the individual and the legitimate demands of community. Put differently, we need to restore, against judicial usurpation, the separation of powers. That the decisions of the Supreme Court and many state supreme courts have less and less to do with the historic Constitution is undeniable. Indeed, that fact is glorified by those who urge the Court on to greater adventures in policy making. Justice Antonin Scalia accurately described the state of play: “Day by day, case by case, [the court] is busy designing a Constitution for a country I do not recognize.”
The Supreme Court has created a more permissive abortion regime than any state had enacted; prohibited any exercise or symbol of religion touching even remotely upon government; made the death penalty extremely difficult to impose and execute; disabled states from suppressing pornography; catered to the feminist agenda, including outlawing state all-male military schools; created a labyrinth of procedures making criminal prosecutions ever more difficult; used racial classifications to exclude children from their neighborhood public schools; perverted the political process by upholding campaign finance limits that shift political power to incumbents, journalists, and labor unions; licensed the advocacy of violence and law violation; and protected as free speech computer-generated child pornography. These decisions are activist, i.e., not plausibly related to the actual Constitution.
As Robert Nisbet put it, liberal seekers of power see the Court as “a force for permanent revolution.” Fidelity to the separation of powers means that there is only one legitimate way for courts to interpret the Constitution: to discern its principles as they were originally understood by the men who made the Constitution law. The judge who looks outside the Constitution looks inside himself and nowhere else. And when he looks, he finds a left-liberal autocrat whose non-originalist law strives for abstract universal principles. That is hubris, fatal to good law. Good law must be content with partial principles, principles in the middle distance. Universalist abstractions cannot cope with concrete realities, including those of human nature. Attempts to make them do so beget reckless changes and authoritarian solutions.
Legal conservatism must now also cope with matters beyond our national boundaries. The new international law threatens our sovereignty and domestic law as well.
We know from experience that international tribunals and forums will not be friendly to the U.S. When the U.S. aided the Nicaraguan insurgency, the International Court of Justice, despite having no jurisdiction, ruled that the U.S. had violated customary international law. When the U.S. removed a violent dictatorship in Grenada to the overwhelming satisfaction of the Grenadians, the U.N. General Assembly denounced our action by a larger majority than that which denounced the Soviet invasion of Afghanistan.
Treaties purport to establish binding law even though ratified only by nations representing less than half the world’s population in collaboration with the newly potent nongovernmental organizations–passionate, single-issue organizations numbering in the thousands, most of them from the U.S. They created the International Criminal Court. The anti-American mood was manifested by cheers and rhythmic stomping when the U.S. lost overwhelmingly on the final vote.
The ICC claims jurisdiction over a crime when either the state where the crime was committed or the state of the alleged perpetrator is a party to the treaty. Americans could be tried for the humanitarian use of force in a country that has ratified the treaty even though the U.S. had not. The court has no rules of procedure, scant protection for the rights of the accused, and no clear separation between prosecutors and judges. The “law” of the treaty is so vague that it will allow prosecutors and judges to define as criminal almost any use of armed force they choose. There is, for example, no definition of the crime of “aggression”; and “war crimes” include “intentionally launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage to be anticipated.” No one can know in advance what that will mean to foreign judges without firsthand knowledge of the situation or any skill in military matters. Taken seriously, the statute would paralyze an army’s capacity to fight. Viewed cynically, as it should be, the statute provides cover for politically motivated judicial reprisals. The Bush administration, to its credit, has rejected the ICC in toto.
Internationalism is taking root in American courts as well. They have imperiously begun to use a 1789 statute, intended for wholly different purposes, to accept tort suits alleging human rights violations in other countries. Some American judges also look to foreign law for guidance in interpreting the Constitution. Four members of an equally divided Supreme Court cited “the views of the international community in determining whether [the death penalty for juvenile murderers] is cruel and unusual” under our Eighth Amendment. One justice in a case involving allowable delays of execution found “useful” decisions of the Supreme Court of Zimbabwe! Foreign courts cite each other’s constitutional rulings and urge U.S. courts to do more of the same. None of the judges involved feel themselves bound entirely by the texts and histories of their own constitutions. The tendency, therefore, is to develop a universal “constitutional” law which, as in America, is a product of the opinions of an international intellectual “elite.” This homogenized law is capable of erasing the actual provisions of our own Constitution.
Legal conservatism requires discriminating judgment about what law can accomplish and what it cannot. Poorly thought out legal innovations do great damage both to law and to the subjects it attempts to regulate. Some evils cannot be eliminated by law. It is a blunt instrument, not a scalpel. Legal conservatism, like conservatism generally, emphasizes the virtues of prudence and practical wisdom, believing that patient scrutiny will often reveal wisdom in existing laws, customs, and institutions. Evolutionary change that gradually eliminates what is bad while preserving what is good is to be preferred to root-and-branch reforms. In the law, proposals for significant change should be examined under a presumption of error. Viscount Falkland’s formulation–“When it is not necessary to change, it is necessary not to change”–though perhaps excessively bold, as aphorisms tend to be, pretty much sums the matter up.
Robert H. Bork is a senior fellow at AEI. |
