Coercing Virtue

A
s is usually the case, the efforts of a number of people go into the making of a book. Laura Hardy, my secretary, not only types, retypes, and proofreads drafts but handles the outside world in a way that makes writing possible. Not much would get done without her assistance.

Sarah Davies, executive editor at Random House Canada, has been a model of patience and accommodated my view that deadlines are infinitely flexible – almost. Rosemary Shipton proved to be an excellent and meticulous editor. Both of them were a pleasure to work with.

Evelyn Gordon rendered so much extremely valuable assistance on the chapter concerning Israel that she really should be listed as a co-author. She should not, however, be burdened with any mistakes and omissions that remain.
Azure
magazine, for which she frequently writes, contains a great deal of information about judicial activism in Israel in articles by Daniel Polisar, Evan Gahr, Hillel Neuer, and Mordechai Haller. Very useful commentary also appears in Jonathan Rosenbloom’s articles in
the Jerusalem Post
.

John C. Yoo and Jack Goldsmith read and improved the chapter on international law. Christopher Manfredi and F. L. Morton provided assistance concerning Canadian judicial activism, and Manfredi vetted that chapter. The help of all four scholars was essential and much appreciated.

Daniel Troy once more read much of the manuscript and made very useful suggestions. A number of interns provided research and commentary. Christian Bonat undertook his assignments intelligently and assiduously, producing reams of material that contributed greatly to the final product. He has worked full time, researching and writing. Summer interns, whose tenures were necessarily brief, included Jared Hansen, Richard Barrett, and Adam Storch.

I am grateful once more to the American Enterprise Institute, which supported me in this endeavor. The views expressed here are my own and are not necessarily shared by AEI or by any of the people I have thanked.

T
he nations of the West have long been afraid of catching the “American disease” – the seizure by judges of authority properly belonging to the people and their elected representatives. Those nations are learning, perhaps too late, that this imperialism is not an American disease; it is a judicial disease, one that knows no boundaries. The malady appears wherever judges have been given or have been able to appropriate the power to override the decisions of other branches of government – the power of judicial review. That is why we see in virtually all Westernized nations dramatic and unplanned changes in governments and in cultures.

It is apparent even to a casual observer that, everywhere, democracy and indigenous moral traditions are in retreat. Even as more nations adopt democratic forms of government, the reforms are undermined by other internal developments. This is particularly noticeable in older, advanced democracies. Increasingly, the power of the people of Western nations to govern themselves is diluted, and their ability to choose the moral environment in which they live is steadily diminished.

It would be a mistake to attribute all these changes to the courts. There are many forces driving this development – the rise of relatively unaccountable and powerful bureaucracies, the decline of belief in authoritative religions, the acceptance of an ethos of extreme individual autonomy, the influence of the mass media, the explosion in size of the academic intellectual class, and more. This book, however, will concentrate on what seems to me the single most powerful influence aiding and abetting all other forces: the
recent ascendancy almost everywhere of activist, ambitious, and imperialistic judiciaries. Oddly enough, the role of the courts in displacing self-government and forcing new moralities has not triggered a popular backlash. Courts have been and remain far more esteemed than the democratic institutions of government, even though the courts systematically frustrate the popular will as expressed in laws made by elected representatives.

Judicial activism results from the enlistment of judges on one side of the culture war in every Western nation. Despite denials by some that any such conflict exists, the culture war is an obtrusive fact. It is a struggle between the cultural or liberal left and the great mass of the citizenry who, left to their own devices, tend to be traditionalists. The courts are enacting the agenda of the cultural left. There is a certain embarrassment in choosing a name for this group. We often call its members the “intellectual class,” the “intelligentsia,” the “elite,” the “knowledge class,” or, dismissively, the “chattering class.” Most of these names have the unfortunate connotation of superiority to the general public. That implication is not justified and is certainly not intended here. Individual members of the intellectual class are not necessarily, or even commonly, adept at intellectual work. Rather, their defining characteristic is that they traffic, at wholesale or retail, in ideas, words, or images and have meager or no practical experience of the subjects on which they expound. Intellectuals are, as Friedrick Hayek put it, “secondhand dealers in ideas.” Their function is “neither that of the original thinker nor that of the scholar or
expert in a particular field of thought. The typical intellectual need be neither: he need not possess special knowledge of anything in particular, nor need he even be particularly intelligent, to perform his role as intermediary in the spreading of ideas.” I will sometimes refer to these faux intellectuals as the “New Class,” a term that suggests a common class outlook and indicates the group’s relatively recent rise to power and influence.

The New Class consists of print and electronic journalists; academics at all levels; denizens of Hollywood; mainline clergy and church bureaucracies; personnel of museums, galleries, and philanthropic foundations; radical environmentalists; and activist groups for a multiplicity of single causes. These are clusters of like-minded folk and they have little knowledge or appreciation of people not like themselves. As G.K. Chesterton wrote:

Without presuming to know the spiritual condition that prevails in hell – which, in Chesterton’s version, sounds more comfortable than the usual descriptions of the place and, in fact, remarkably like a faculty lounge – it is
certainly true that the members of the New Class are generally smug and content in their liberal outlook.

It may not be immediately obvious why the New Class should be overwhelmingly liberal in outlook. Perhaps the best explanation is one offered a long time ago by Max Weber. Intellectuals characteristically display a strong desire for meaning in life, and, for them, meaning requires transcendent principles and universalistic ideals. These qualities were once conferred by religion, but, religion no longer being an option for intellectuals, the only alternative is the utopian outlook of the left. Once the hard-core varieties of the left were put out of favor by World War II and the Cold War, the intelligentsia turned to the softer and eclectic socialism of modern liberalism. The various attitudes expressed in modern liberalism add up to an overarching sentiment that must, for the time being, make do for a more explicit utopian vision. Socialism is, of course, the only available secular utopian vision of our time.

As a political and cultural philosophy or impulse, conservatism or traditionalism offers no comparable transcendentalism, no prospect of utopia. Conservatism is infrequently an option for the intelligentsia; the New Class despises the few conservatives to be found in its ranks more than it does those whom it regards as the retrograde “unwashed” – the general public. Conservative pragmatism, especially its concern with particularity – respect for difference, circumstance, tradition, history, and the irreducible complexity of human beings and human societies – does not qualify as a universal principle, but
competes with and holds absurd the idea of a utopia achievable in this world.

What these rival philosophies all add up to is, in the familiar phrase, a revolution or a war within the culture. As Roger Kimball wrote: “A cultural revolution, whatever the political ambitions of its architects, results first of all in a metamorphosis in values and the conduct of life.” In its overt form, the culture war is fought by “elites,” the large majority of them liberal. The opposing sides in this revolutionary war are described by James Davison Hunter:

According to Hunter: