| 摘要 | Judge Robert H. Bork, senior fellow at AEI and author of Coercing Virtue: The Worldwide Rule of Judges (AEI Press, 2003), delivered the first of the 2003-2004 Bradley Lectures on September 8. Edited excerpts follow.
The term judicial activism 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 enforce. Such imperialism is now characteristic of most Western nations. That suggests the problem is not due simply to some unfortunate appointments to the Supreme Court. It is inherent in men and women given power without democratic accountability.
I refer to the so-called elites that are pressing these developments upon us as the “Olympians.” Olympians are verbalists, distinguished less by their intellectual prowess, which is often slim, than by the uniformity of their antibourgeois attitudes, utopian musings, and authoritarian temper. If those of us on the lower slopes of human achievement do not recognize the superiority of the Olympian project, we must by legal and moral coercion be brought to accept the Olympians’ version of virtue.
Moral but not Legal
The internationalization of law, often improper in any event, is an outgrowth of this judicial imperialism. The trials of the Nazi leaders at Nuremberg is an example. Those trials recorded in detail the horrors perpetrated by the Third Reich and 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 execution of leading Nazis, but the Americans and Soviets wanted the pretense of a judicial proceeding and brought the British over.
The three powers that sat in judgment had themselves waged aggressive wars, none with a warrant in law. Finding any examples of nations that refrained from the aggressive use of force out of respect for international law is difficult. The situation 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.
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 intellectual class, which uses alleged international law to attack the morality of its own government and society.
The Alien Tort Claims Act of 1789 allows aliens to sue in our courts for violations of the law of nations. The statute, which lay dormant for 200 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. Scores of such suits have subsequently gone forward, including claims against American corporations for 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. No concept of international human rights existed then. The modern expansion of the act is judicial imperialism at its highest pitch.
A Dangerous Path
It is dismaying to see the U.S. Supreme Court beginning to take guidance from and to cite foreign constitutional decisions. One of the earliest signs was Justice John Paul Stevens’s opinion finding it cruel and unusual punishment to execute a fifteen-year-old (1988). He cited the views of other nations, leading members of the Western European community, nations that had abolished the death penalty altogether through legislation rather than judicial decree, and human rights treaties signed but not ratified by the United States.
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 Ruth Bader Ginsburg and Stephen G. Breyer cited the International Convention on the Elimination of All Forms of Racial Discrimination. One would have thought the meaning of our constitution derived from the understanding of those who wrote, proposed, and ratified it, not some international consensus shown by foreign courts.
We seem headed for a homogenized international common law of the constitution. It is remarkable, however, how few citizens 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 characteristic danger of great nations, like the Romans and the English, which have a long history of creation, is that they may at last fail from not comprehending the great institutions that they have created. |
