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4 The Judiciary and the Extent of Rights
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The Judiciary and the Extent of Rights Harvard University’s 1978 commencement address was delivered by Alexander Solzhenitsyn, who was then still in the early years of his enforced exile from the Soviet Union. Solzhenitsyn delivered a jeremiad that received headlines around the world for its assessment of a West that had “lost its civil courage” in the struggle against Communist expansionism , a loss “particularly noticeable among the ruling groups and the intellectual elite, causing an impression of loss of courage by the entire society .”1 A significant item in Solzhenitsyn’s indictment was the claim that, in the West, “[t]he defense of individual rights has reached such extremes as to make society as a whole defenseless against certain individuals.”2 He continued: Destructive and irresponsible freedom has been granted boundless space. Society appears to have little defense against the abyss of human decadence , such as, for example, misuse of liberty for moral violence against young people, motion pictures full of pornography, crime, and horror. It is considered to be part of freedom and theoretically counterbalanced by the young people’s right not to look or not to accept. Life organized legalistically has thus shown its inability to defend itself against the corrosion of evil. And what shall we say about the dark realm of criminality as such? Legal frames (especially in the United States) are broad enough to encourage not only individual freedom but also certain individual crimes. The culprit can go unpunished or obtain undeserved leniency with the support of thousands of public defenders. When a government starts an earnest fight against terrorism, public opinion immediately accuses it of violating the terrorists’ civil rights. There are many such cases.3 4 117 How shocking it must have been to hear expansive individual rights denounced by a man who had suffered greatly at the hands of a regime that was in essence a seventy-year conspiracy against the very concept of rights as a restraint upon state power. Still, Solzhenitsyn’s address was embraced immediately and enthusiastically by American conservatives, not least for its criticism of rights. Indeed, criticisms that echo Solzhenitsyn’s are now a staple of our political discourse. The New York corporate attorney Philip K. Howard is well removed from Solzhenitsyn in terms of literary renown, but the same sort of thinking about rights is palpable in this passage from his best-selling 1994 book, The Death of Common Sense: Rights, almost no one needs to be told, are all around us. The language of rights is used everywhere in modern America—not only in public life, but in the workplace, in school, in welfare offices, in health care. There are rights for children and the elderly; the disabled; the mentally disabled; workers under twenty-five and over forty; alcoholics and the addicted; the homeless; spotted owls and snail darters.4 We have already noted that the baleful effects of expansive judicial protection of individual rights are a central element of the Imperial Judiciary thesis. As Max Boot puts it, judges “seem to delight in recognizing ever-expanding ‘rights’ for an ever-expanding array of minority groups.”5 The same charge made its way into the 1996 Republican Party platform, quoting from a speech given by the party’s presidential standard-bearer, Robert Dole: The American people have lost faith in their courts, and for good reason. Some members of the federal judiciary threaten the safety, the values, and the freedom of law-abiding citizens. They make up laws and invent new rights as they go along, arrogating to themselves powers King George III never dared to exercise.6 As we have also seen, the Imperial Judiciary thesis holds that judges do not “invent new rights” at random. They implement a left/liberal strategy to impose through the courts what cannot be won at the polls. That is, judicial “rights creation” is the usurpation of politics. The Justices of the Supreme Court, says Robert Bork, “armed with a written Constitution and the power of judicial review, could become not only the supreme 118 | The Myth of the Imperial Judiciary [18.232.188.122] Project MUSE (2024-03-28 23:48 GMT) legislature of the land but a legislature beyond the reach of the ballot box.”7 And, of course, behind the judges are the cultural elite, especially the like-minded academics and litigators with whom they work in concert . Bork again: “An elite moral or political view may never be able to win an election...