Coercing Virtue (2 page)

Hunter does not adequately describe the dynamism and intolerance of the liberal or socialist side of the struggle. The “further emancipation of the human spirit” is, in fact, code for a cultural revolution that changes our values.

The culture war, as already suggested, is also a class war. Peter Berger wrote that “the ‘carriers’ … of the cultural radicalism of the late 1960s have had a very specific social character in all Western countries – overwhelmingly belonging to an upper middle class with higher education.” Initiated by upper-middle-class students, the turmoil of the 1960s centered in the most prestigious universities, where the allegedly rigid and oppressive Establishment, having the same social characteristics and, in diluted form, many of the same values as the rioting students, immediately went limp. On graduation, the radical students went where they could best influence ideas and undercut traditional values. Thirty years on, they control the left wing of American politics and almost all the nation’s cultural institutions, including, still, the universities. Other Western nations have traveled much the same route.

The values of the New Class differ sharply from traditional values. Berger notes that “attitudes toward religion and the place of religion in society are a key determinant of who stands where in the conflict. Opposing norms span personal morality (sexual behavior
and abortion) and the legitimacy of the state (religious symbols in public places, prayer in public schools).” “There is,” he said, “one feature of [normative conflicts] that reappears cross-nationally – a highly secularized cultural elite with a general population that continues to be deeply religious.” Just how genuinely religious those populations are may be debatable, but it is true that, almost everywhere, the public views religion very favorably, even when regarding it as a form of therapy and being selective about obedience to its doctrines and obligations. There is less ambiguity about the cultural elites: they are so thoroughly secularized that, in varying degrees, they not only reject personal belief but maintain an active hostility to religion and religious institutions.

These issues are far from the only ones around which the culture war rages. There are, for example, such hotly contested topics as abortion, the definition of family, the teaching of values in public schools, the state monopoly of primary and secondary education, the relevance of the European heritage in increasingly multicultural societies, funding for the arts and the purpose of art itself, homosexual rights, patriotism, “social justice,” welfare, gender, and the never-ending subjects of race and ethnicity.

The New Class’s problem in most nations is that its attitudes command only a political minority. It is able to exercise influence in many ways, but, when cultural and social issues become sufficiently clear, the intellectual class loses elections. It is, therefore, essential that the cultural left find a way to avoid the verdict of the ballot box. Constitutional courts provide the necessary means to
outflank majorities and nullify their votes. The judiciary is the liberals’ weapon of choice. Democracy and the rule of law are undermined while the culture is altered in ways the electorate would never choose.

It may be useful to view the culture war from an additional perspective. It is, at bottom, a question of allegiance to or rejection of the socialist ideal. Kenneth Minogue wrote that

These social or cultural issues are the area where constitutional courts regularly attack the institutions and laws of “ordinary people.”

The socialist impulse remains the ruling passion of the New Class. What are the characteristics of an impulse toward socialism that manifest themselves in both the economic and the cultural aspects of life? A partial list would include a passion for a greater, though unspecified, degree of equality; a search for universal principles; radical autonomy for the individual, but only in a hierarchical
and bourgeois culture (when that culture has been eroded and replaced, there will be little tolerance for individualism); radical feminism; and a rationalism that despises tradition and religion and supposes that man and society can be made anew by rational reflection. Rationalism accounts for much of the coercion, moral as well as legal, that modern liberalism employs. If reason seems to lead to certainties about the virtuous life, it follows that those who remain unconvinced or who resist are perverse, or worse, in their refusal to accept the truth and must, therefore, be forced to cease their resistance.

To these qualities might be added a softness of spirit, a desire to ensure that no one, other than intellectual enemies, suffer the least degree of discomfort. The socialist economic vision, after all, stressed the desirability of a world in which no one experiences anything less than a comfortable material life. The same attitude may extend to the cultural and psychic components of life. It is not entirely clear whether this view is an aspect of the socialist impulse or whether it is merely the inevitable attitude prevalent in an affluent, technologically advanced society in which comfort and convenience have become the primary goods. Whatever the explanation, an exaggerated solicitude for the feelings of people is to be found in the jurisprudence of activist courts. It is by no means an undifferentiated solicitude, however, and it contains a strong ideological component. The comfort of some often requires the discomfort of others, and the gavel falls in favor of those the New Class favors.

The discredited economic theory of socialism is
merely one manifestation of a strong preference for the universal over the particular, and the most universal and least individualistic social principle is equality. Economic inequality being beyond reach, the attack turns to “lifestyle” inequalities, to a demand that we cease judging people and their actions according to the traditional moral scale. Traditionalists denounce this approach as moral relativism, but it is not that at all. Cultural socialists have their own moralities, often enforced with a fierceness unknown to upholders of the old moralities. That fanaticism is manifest in what we call “political correctness.” “Nonjudgmentalism” is the first step toward a harsh judgmentalism in the service of a different morality. The war is religious in the intensity of belief, particularly on the liberal side, and because it is about the definition of virtue, morality, and the proper way of living.

The demand for radical autonomy, of which radical feminism is a component, is often phrased as a struggle for human liberation. Kimball sums up the effects of the “spirit of liberation” that exploded in the 1960s. His description is bleak, but not, I think, exaggerated:

This list illustrates the tendency of autonomy and liberation to turn into uniformity and coercion once traditional or bourgeois values have been discredited and displaced. The rigid conformity of thought and speech now enforced in many colleges and universities is but a single example.

The one institution noticeably missing from Kimball’s recital is law. In discussions of cultural warfare, law is usually overlooked. Perhaps that is because law is viewed as a separate discipline, its movements, disputes, and modes of reasoning peculiar to itself. This view is obviously inadequate. Law is a key element of every Western nation’s culture, particularly as we turn more to litigation than to moral consensus as the means of social control. Law is also more crucial today because courts have become more overtly cultural and political as well as legal institutions. Courts have played major roles in most of the pathologies Kimball lists, both by breaking down the traditional legal barriers societies have erected against degeneracy and by offering moral lessons based on the emancipatory spirit. In a word, courts in general have enlisted on the liberal side of the culture war. They are
infected, as is the New Class to which judges belong and to which they respond, with the socialist impulse.

Just as the war is now an international phenomenon, so is judicial activism. The two necessarily go together because the new morality is not to be found in the constitutions judges profess to be interpreting. They must, therefore, invent new meanings in order to carry out the New Class program.

What does it mean to call a judge “activist” and “imperialistic”? The terms are bandied about freely by politicians and members of the media in an unedifying cross fire of slogans that passes for public debate, by politicians and members of the media, so that it will be useful to give those terms more stable meanings. Activist judges are those who decide cases in ways that have no plausible connection to the law they purport to be applying or who stretch or even contradict the meaning of that law. They arrive at results by announcing principles that were never contemplated by those who wrote and voted for the law. The law in question is usually a constitution, perhaps because the language of a constitution tends to be general and, in any event, judicial overreaching is then virtually immune to correction by the legislature or by the public.

Though judges rule in the name of a constitution and their authority is accepted as legitimate only because they are regarded as the keepers of a sacred text in a civic religion, there is no guarantee that the results actually come from that constitution. As Bishop Hoadly said almost three centuries ago, “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is
truly the lawgiver, to all intents and purposes, and not the person who first wrote or spoke them.” Judges who are conscious of that fact can, of course, do their best to interpret the law as the original authors intended. They can be properly active in the enforcement of liberties confided to their care, but not activist in creating new and unwarranted rights and liberties in defiance of democratic authority. Judges are activist if they pursue an agenda that cannot be validated by any reasonable construction of a constitution. Self-denial is unattractive, and judges have manifold opportunities to surrender to the temptation to enact their own beliefs. Such performances do not accord with any known version of the rule of law, but are, instead, nothing more than politics masquerading as law. It is often easier to predict the outcome of a case by knowing the names of the judges than by knowing the applicable legal doctrine. The nations of the West are increasingly governed not by law or elected representatives, but by unelected, unrepresentative, unaccountable committees of lawyers applying no law other than their own will.

The question of why most judges impose New Class attitudes is simply answered. Those attitudes are congenial to them, and the adoption of such attitudes is important to their reputations. Judges passed through colleges and law schools are themselves certified members of the intelligentsia. The ideas and values of the New Class are part of the furniture of most judges’ minds and seem self-evident. Beyond that, the prestige of a judge depends on being thought and spoken well of in universities, law schools, and the media, all bastions of the New Class.
Very liberal judges are routinely spoken of as “moderates,” while judges who attempt to apply a law as it was originally understood are equally routinely called “conservative” or “right wing.” Whether a judge deliberately caters to these organs of the New Class or is unconsciously conditioned by praise and criticism to behave in accordance with the class’s tenets, the effect is to move him to the culture left. A byproduct of this shift is a decline in the quality of judicial opinions, a decline that occasionally results in incoherence. Judicial systems were typically not designed for cultural and political roles. In adopting them, judges not only exceed their authority but 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 of
their 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.