CONSERVATISM is doomed. True, in the Eastern bloc, in its conclusive demolition of the Berlin Wall, it won the battle of ideas. But in its own Western bloc, it's lost the battle of process, and that's likely to prove decisive. In the United States, George W. Bush is opposed to same-sex marriage. So is John McCain. But whichever one of them becomes president will have little say over whether or not, in Vermont and elsewhere, justices of the peace (and, indeed, clergy) find themselves uttering the words, 'I now pronounce you man and husband.' On almost any issue you care to name - from partial-birth abortion to education reform to racial quotas to human cloning to drug legalisation - the real action's in the courts, not the legislatures. Aside from tinkering with the tax code and coming up with an entitlement here and there, America's 'lawmakers', as newspapers still quaintly refer to elected representatives, no longer, in any meaningful sense, make laws - not the ones which govern our lives.
Instead, what they mainly do is protest their impotence to do anything very much at all, other than try to come up with something that brings them into compliance with the whims of the judiciary. You can find new examples every week across the Western world, but, to pluck one close to home, here in New Hampshire my own legislature is struggling to come up with a new education-funding system and a new tax structure for the state. Not because there's anything wrong with the tax structure or the education system, or any public clamour to change either - both are a huge success, if only by the pitiful standards prevailing elsewhere in the Union but because the New Hampshire Supreme Court took it upon itself to declare our practice of town-level education-funding ,unconstitutional'. It's been pretty much the same for 200 years, but suddenly it's ,unconstitutional' and has to go. And all our elected 'lawmakers' can say is: don't blame us, there's nothing we can do.
Judicial activism is, of course, a famously American perversion. In other countries within the English Common Law tradition, judges have tended to be fusty types disinclined to creative interpretation of statutes whose meaning seemed plain to one and all. It would never have occurred to these men (and they were all men) that it was their job to usurp the role of Parliament in, say, achieving social justice for the transgendered. But not any more. When was the last time you heard a bewigged magistrate go into his 'What are these "Beatles" to which the witness refers?' routine and flaunt his ignorance of the fancies of the day? The judges have got with the beat.
In London at least, as we learnt during the Pinochet case, a judge can still be rapped on the knuckles if he fails to spot any potential conflict of interest between the case he's presiding over and his various extra-curricular enthusiasms. But most other British-derived countries have moved closer to the American model of an interventionist Supreme Court and have discarded, with astonishing rapidity, such tiresome concepts as the time-honoured principle of judicial impartiality. My current favourite is Canadian Supreme Court Justice Claire L'Heureux-Dube. Some 20 years ago, the Judicial Council was still willing to reprimand judges for speaking out on 'a matter of serious political concern and division when that controversy was at its height'. But now Mme L'Heureux-Dube gaily cartwheels across the political issues of the day with apparent impunity. After her ruling striking down Ontario's definition of a spouse as a member of the opposite sex, Her Ladyship flew on to London and told an international gay rights conference that she would continue to fight against 'a general failure in the political process to recognise the rights of lesbians and gays'. Not for Mme L'Heureux-Dube a tetchy 'What are these "Pet Shop Boys" to which the witness refers?' Instead, she told her London audience, 'There is much work to be done.'
Undoubtedly. But hitherto in democratic societies, if you wanted to make law on subjects about which you felt passionately, you offered yourself to the people for election to the legislature. Mme L'Heureux-Dube clearly understands that that's a waste of time. 'We have lots of discretion,' she told her London audience. J am not afraid to strike down laws.' Sitting next to her was Justice Michael Kirby of the Australian High Court, a recently uncloseted gay who's become the Peter Tatchell of the international legal set. Having listed his partner, former newsagent Johan van Vloten, in Who's Who, the judge is now campaigning for same-sex couple benefits and giving speeches to Aussie school students on gay rights. An employer resisting the idea that he was obliged to offer partner benefits to gays might wonder if he'd get a fair hearing before such judges. 'You can call it partiality,' Mme L'HeureuxDube said. 'I call it human.' The gay crowd broke into what was described as 'thunderous applause'.
That's why we conservative types oppose ,affirmative action'. Her Ladyship is on the Supreme Court of a G7 nation because Western governments noted (reasonably enough) that there were insufficient women on the bench but thought the problem could be solved simply by accelerating through the ranks any ambitious jurist who happened to be of a non-male persuasion. The result is that Canada's senior courts and human rights commissions (an innovation the European Union will soon import) are staffed by judges of a left-wing orthodoxy that most electable liberal parties would balk at. In Alberta, for example, private religious schools which regard homosexuality as an abomination cannot refuse to hire screamingly camp gays. Confronted with this ruling, the Conservative government of the Province did what all legislators do these days: they shrugged. Needless to say, the 'tolerance' required of religious employers is not required of all groups; if, for example, a devout Catholic were to get a job at a gay bathhouse and wander round the cubicles saying Hail Marys, he'd get short shrift from the courts.
The caricature of Western legal systems is usually that they're insufficiently progressive: 'white man's justice', etc. But, in fact, even if either man had the stomach for it, it would be all but impossible for Bush or McCain to find enough judges from the available pool with even a nominally conservative approach to these issues. The judiciary now fulfils the same role as the military in banana republics: you may be able to elect your politicians, but the real, entrenched power in the land will see to it that the legislature will only ever be a figleaf.
Does that sound a bit alarmist? Well, look at it this way: the principles that have worked so well in the USA - of bypassing such tiresome notions as popular will and using the courts to advance causes for which there is no social consensus - are now being applied internationally, where there's even less opportunity for legislative oversight. Different jurisdictions, generally, reflect the will of their people: in Massachusetts, Louise Woodward was convicted of manslaughter; in Texas, they'd have fried her. But 'international law' declines to recognise the right of sovereign jurisdictions: in Chile, some folks are passionately pro-Pinochet, some are passionately anti, and others feel (in the formulation of Clinton defenders) that it's time to move on. But, as far as the House of Lords and other European courts are concerned, Chile's settlement of its own affairs counts for naught.
'International law' is the new colonialism, the imposition on the world's peoples of the moral certainties of a remote, unaccountable Western elite. Indeed, the old imperialists were far more tolerant of local customs and culture than the monolithically leftist body of activist law. In 1998, the British government forced its reluctant Caribbean colonies to abandon their prohibitions on homosexuality to bring their laws into compliance with the European Convention. But what chance do those Muslim and Third World countries who regard abortion as an abomination have of foisting their views on Europe or North America? 'International law' represents not a global consensus, but left-wing orthodoxy on an unlimited budget: pro-gay, pro-abortion, antiPinochet.
If you're a fiscal conservative, you're probably saying, 'So what? Who cares as long as taxes stay low?' But in North America the judiciary's promotion of various interest groups usually comes with certain benefits attached. And, even in other cases, there's usually a price tag. New Hampshire is the only jurisdiction on the American continent with no sales tax, no income tax and a political culture in which no candidate of either party can be elected governor without taking the state's famous 'No Tax' pledge. If a court can nullify a state's entire philosophy at a stroke, don't bet that your tax rate is safe. More to the point, the existence of an activist judiciary is a great advantage for weasel candidates of the Left. It allows Al Gore to stay electable by running to the right of the courts, secure in the knowledge that he can leave it to them to chalk up the great irreversible victories of American progressivism. Meanwhile Al can profess that, although he 'personally' is not in favour of same-sex marriage, he must bow to the will of the court.
If this passivity sounds familiar, it should: the way North America's elected representatives talk about court decisions is the way the British talk about European decisions. Awfully sorry, old boy, but resistance is useless. The European Union is, of course, more than a court, but it's essentially engaged in the same business - advancing a particular agenda while insulating it from such tedious concepts as the will of the people. Thus the EU is currently putting the squeeze on Austria over the participation of J6rg Haider's Freedom party in the new coalition. The members of the government were all popularly elected and have a majority in parliament. By comparison, the European Commission of appointed apparatchiks has no democratic oversight and is simply the result of backroom deals. Nonetheless, they've decided to try to nullify the results of the Austrian election - or at least to negate the 29 per cent of votes they find so disagreeable. Reading the interview with Herr Haider in the Weekly Telegraph (the paper's overseas edition), I was startled by Dominic Lawson's second question: 'What is your view of the action taken by the FU states to cut off all bilateral political talks with Austria?'
The FU states? I assumed at first it must be a printing error but, thinking about it, I'm not so sure Lawson isn't right. The West is in thrall to a great FU movement that's been growing for 30 years. You're one of the 90 per cent of the American people who opposed court-mandated 'busing'? FU! You're a New Hampshire voter and you're happy with your tax structure the way it is? FU! You're a white Canadian who likes to hunt and you don't see why natives alone should have been given (as a court recently decreed) the right to kill as many moose and deer as they want? FU! You're an Austrian and you'd like the right to choose your elected representatives? FU!
In the hysterical reaction to J6rg Haider and in the hijacking of Pinochet, you get a glimpse of the limits that the new global elite is prepared to tolerate: you can vote left or centre-left but anything else is a waste of time. Conservatives won great victories in the late Seventies against the dead hand of statism, socialism, big labour and Keynesian economics. Their opponents in the new century are more vital, more elusive and much better organised. Abortion and statewide education-funding and unlimited fishing rights for natives may have their merits, but they should be argued and settled by the people's representatives. When the Left tried dispensing with democracy in the Soviet Union and the Warsaw Pact, it led eventually to counter-revolution and the regimes' collapse. In the US courts, in Canada's human rights commissions and in Europe's bureaucracy, the Left may finally have found a form of democratic subversion that works.