Behind our left-wing legislators are lefter judges. In a country where every other institution has lost legitimacy, only our robed rulers still command widespread deference. So these days the left advances its causes more effectively through the courts than through elections, for the fairly obvious reason that very few people are dumb enough to vote for this stuff. The judiciary legislates fundamental issues—abortion, gay marriage, illegal immigration, health care—and thereby supplies electoral cover for Democrats. As Nancy Pelosi explained, “It is a decision of the Supreme Court. So this is almost as if God has spoken.”77 So that’s that. Love to help you, says Nancy, take your point, but there’s nothing I can do.
That’s not how Abraham Lincoln saw it: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court… the people will have ceased to be their own rulers.”78
Which they have.
America is unique in this regard. In Europe, if the establishment wants to invent a new “right”—that is, yet another intrusion by government—it goes ahead and does so. If it happens to conflict with this year’s constitution, they rewrite it. But the United States is the only western nation in which the rulers invoke the Constitution for the purpose of overriding it.
What Judge Bolton in the Arizona immigration case and Judge Walker in the California marriage case share with Mayor Bloomberg’s observations on popular opposition to the Ground Zero mosque is a contempt for the people. Popular sovereignty may be fine in theory but not when the citizenry are so obviously in need of “re-education” by their betters. The alliance of political statists and judicial statists is moving us into a land beyond law—a land of apostasy trials. The Conformicrats have made a bet that the populace will willingly submit to subtle but pervasive forms of re-education camp.
Over in England, London’s transportation department has a bureaucrat whose very title sums up our rulers’ general disposition toward us: Head of Behavior Change.
In 2008, when the Canadian Islamic Congress attempted to criminalize my writing north of the border by taking me to the “Human Rights” Commission, a number of outraged American readers wrote to me saying, “You need to start kicking up a fuss about this, Steyn, and then maybe Canadians will get mad and elect a conservative government that will end this nonsense.”
Made perfect sense. Except that Canada already had a Conservative government under a Conservative prime minister, and the very head of the “human rights” commission investigating me was herself the Conservative appointee of a Conservative minister of justice. Makes no difference. Once the state swells to a certain size, the people available to fill the ever expanding number of government jobs will be statists—sometimes hard-core Marxist statists, sometimes social-engineering multiculti statists, sometimes fluffily “compassionate” statists, sometimes patrician
Thus, America in the twenty-first century—a supposedly “center-right” nation governed by a left-of-center political class, a lefter-of-center judiciary, a leftest-of-center bureaucracy, all of whom have been educated by a lefterooniest-of-all academy.
Liberalism, as the political scientist Theodore Lowi put it, “is hostile to law,” and has a preference for “policy without law.”79 The law itself doesn’t really matter so much as the process it sets in motion—or, as Nancy Pelosi famously told the American people regarding health care, “We have to pass the bill so you can find out what’s in it.”80 When Lowi was writing in the Seventies, he noted that both the Occupational Safety and Health Administration (OSHA) and the Consumer Product Safety Commission (CPSC) were set up by a Congress that didn’t identify a single policy goal for these agencies and “provided no standards whatsoever” for their conduct. So they made it up as they went along.
Where do you go to vote out the CPSC or OSHA?
