At The New Criterion, I review Justice Stephen Breyer’s latest, The Court and the World: American Law and the New Global Realities. A sampling:
How to explain the difference between progressive pretensions to “activate” liberty — i.e., to vouchsafe “the right of all persons to enjoy liberty as we learn its meaning,” as Justice Anthony Kennedy vaporously put it in imposing same-sex marriage on the nation — and progressive judging’s actual affect of curtailing our freedom to live as we choose? This inversion of democracy, it turns out, flows naturally from Breyer’s inversion of the judicial role . . . [:]
“[O]ur American judicial system,” he contends, should “see itself as one part of a transnational or multinational judicial enterprise.” Inconveniently (but, alas, not insuperably), the only “judicial enterprise” licensed by the Constitution, from which federal judges derive their authority, is the protection of Americans from overreach by our government and the remediation of other harms inflicted by third parties in violation of laws enacted by our elected representatives . . .
What does Breyer see as the objective of this global judicial enterprise? The advancement of “acceptance of the rule of law itself.” This “rule of law,” you’ll no doubt be shocked to learn, bears an astonishing resemblance to the rule of lawyers — in particular, the judges along with the army of equally unelected transnational progressive lawyers who urge them on.
International law is especially fertile soil for growing this empire. It continuously discovers new legal rights — i.e., new progressive pieties that undermine national security, commerce, and bourgeois sensibilities — by the judicial ascertainment of “the general assent of civilized nations.” And how do judges go about finding this “assent”? As Breyer matter-of-factly explains, they explore “the works of jurists and commentators who by years of labor, research, and experience, have made themselves particularly well acquainted with the subjects of which they treat.”
Who needs Congress when we’ve got law professors?
The whole review is here.