It’s an (American) Constitution we’re expounding


Demanding that Robert Bork write another book is a bit presumptuous. It falls somewhere between telling Moses, Gosh, that first round of books was good, but what have you done for me lately?, and asking Fitzgerald, When can we expect Son of Gatsby to hit the shelves? When you consider that Bork has penned not only The Tempting of America: The Political Seduction of the Law, but also Slouching Towards Gomorrah, such demand is even less appropriate. But Judge Bork does not disappoint. Coercing Virtue: The Worldwide Rule of Judges, while not necessarily of the same degree of import as Tempting, is a desperately timely call for a return to Constitutional principles… American Constitutional principles.

This call is rare, as jurists have grown increasingly adept at running to the microphones to call for a more internationalist jurisprudence. Justices Breyer and O’Connor have both spoken on the subject. Justices Kennedy, Ginsberg, Breyer and Stevens have all cited international “norms” in high-profile opinions at the Court.

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Bork considers first the internationalization of “law” in realms of activity more appropriately governed by armed force legitimized by moral justification, most notably in war crimes tribunals. He argues that these actions, such as the Nuremberg Trials, devalue “law” to the extent that they wrap in the color of law actions that are truly only explicable by moral justification.

Bork then considers the impact of internationalized jurisprudence and “judicial activism” – defined as court usurpation of the power to levy judgments not in accord with an written constitution or legislation -in the United States, Canada and Israel. His discussion of U.S. law briefly summarizes his critiques offered in Tempting, but supplements them nicely with such recent cases as Romer v. Evans and United States v. Virginia. His critique of Canada’s courts focuses on their lack of any semblance of mootness and standing doctrines – which he likens to the Warren Court’s jurisprudence – and the expansion of Canada’s version of Substantive Due Process: “Fundamental Fairness” His critique of Israel’s high court focuses on the court’s dramatic power grab, led by Aharon Barak, which culminated most dramatically in the court’s power to control the deployment of military force.

What is the font of this international power grab by the courts? Bork blames “the New Class:” a community of Liberal elites unable to achieve its policy preferences through democratic means. In his book and in a recent speech, Bork isn’t afraid to point to the source by name. He gleefully points to “a bit of populist wisdom on a bumper sticker that reads: ‘Save America. Close Yale Law School.'” “Personally,” Bork adds, “I think it would be better to close Harvard Law School.”

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If Judge Bork’s book lacks any critical point, it would be that even if we assume arguendo that internationalist jurisprudence is appropriate, internationalists such as Justice Breyer have yet to justify Justices’ sporadic selection of foreign law when it looks abroad for inspiration. When the Court struck down laws allowing the execution of mentally retarded criminals, it cited the support “by other nations that share our Anglo-American heritage, and by the leading members of the Western European community.” In Knight v. Florida, another death penalty case, Justice Breyer’s dissent included the persuasive authority of decisions of Zimbabwe, India and Jamaica. In Grutter v. Bollinger, the concurrence of Justices Ginsberg and Breyer began with citation of “international understanding of the office of affirmative action.” For the right to engage in homosexual sodomy, the Court took guidance from the European Convention on Human Rights. But where are citations to Singapore? Russia? Pakistan? Do the Justices harbor particular biases against these nations, or are they simply willing to sustain the appearance of cultural bias as they select their law from their social circles’ conventional wisdom and reason backward, finding countries that share the party line?

The unjustified selection of nations is only one of the selection biases, however. As the Justices cherry-pick nations to justify their politically-charged jurisprudence, they at no point justify why they turn to those nations for guidance in some areas of social organization but not others. Will the Court look to German search-and-seizure law in the next Miranda challenge? Will the Court cite seek guidance from Zimbabwe the next time it considers a Free Speech case? Come to think of it, why is Zimbabwe an expert in death-penalty law but not regarding the “fundamental right” to engage in homosexual sodomy?

Bork’s joke about Yale and Harvard is particularly prescient in light of recent developments at HLS. At her State of the School Address, Dean Kagan lamented the fact that only 30 percent of students take a course in International Law before graduation. This was hardly an impromptu revelation; she has stressed the importance of international law in interviews with The Record, The Crimson, Massachusetts Lawyers Weekly (where she called it her “first and foremost” goal) and elsewhere. If she merely wants to make students more aware of foreign systems of law, then this may be a laudable goal. But if she is eager to align HLS’ curriculum with the internationalist jurisprudential tendencies of Justices Breyer, Stevens and Ginsburg (among others), then her prescription is equal parts dangerous and laughable.

It is dangerous in that it promises to divert the next generation of lawyers into the course of judicial activism which Judge Bork and others so passionately warn against.

It is laughable in that it’s the “first and foremost” goal of a Dean who presides over a Law School that does not require a course in Constitutional Law or History, that increasingly sacrifices sections of practical courses (Intellectual Property? White Collar Crime?) for an ever-growing list of “Law and …” courses, not to mention the myriad courses specializing in favored Liberal causes.

The victory of Internationalism is surely not inevitable, thanks to the efforts of not only Bork but also other vigorous Intranationalists (David Rivkin, Lee Casey and Jack Goldsmith come to mind). But we’ll need every effort that we can get from them. In this battle for the heart of the Law, the Internationalists have already grabbed prime turf. They’re shooting from the heights of the Ivory Tower, and they’ve got the Constitution dead in their sights.

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CORRECTION: In my last column, Ireferred to Proposition 209 on the California recall ballot. The current measure is actually Proposition 54, “The Racial Privacy Initiative.” Judge Paez was a vocal opponent of Prop 209, which was spearheaded by Prop 54’s Ward Connerly. A delay of the Recall election would have delayed a vote on Prop 54.

Adam White is the Editorial Page Editor of The Record. His column appears weekly.

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