.

Barak’s Rule

Reviewed by Robert H. Bork

The Judge in a Democracy
by Aharon Barak
Princeton University Press, 2006, 360 pages


The Judge in a Democracy, by Aharon Barak, until recently president of the Supreme Court of Israel, advances a provocative argument about the proper role of the judiciary. The book requires attention less because of its thesis, which adds little to his discussions of the subject, than because of Barak’s impact on Israeli law and his international influence, both of which strike me as regrettable.

Barak celebrates the growth in virtually all Western nations of judicial power at the expense of other governmental and private institutions. He notes approvingly that “since the end of World War II, the importance of the judiciary relative to the other branches of the state has increased. We are witnessing a strong trend toward the ‘constitutionalization of democratic politics.’” The phrase is misleading. To constitutionalize democratic politics is to remove them from control by the people and turn politics over to judges. Once an issue is constitutionalized, democratic politics ends. There is a strong and all-pervasive suspicion of democracy in this book, as indeed there was in Barak’s performance on the bench. He seeks to deny the authoritarian nature of the trend he applauds by re-defining democracy, which consists, according to Barak, of two parts: “Formal democracy” (the rule of the people through elected representatives) and “substantive democracy” (including an independent judiciary, the rule of law, and human rights).

Judicial vetoes of majority decisions may or may not be proper in a given case, but one thing they are not is a form of democracy. They are a check on democracy. Barak’s assertion that both the people’s decisions and the frustration of those decisions are “democracy” obliterates the distinction between rule by elected representatives and rule by judges. This, in turn, serves to justify ever-increasing judicial power. The constitutionalization of democratic politics means that courts will govern when there is no constitutional support for their actions. That is frequently the case in the United States and, as the rulings of Barak’s court show, is even more so the case in Israel.

 

Barak elaborates the functions of a judge in a way that makes explicit the wide-ranging legislative power he claims for the judiciary. He asserts that the judge has two major functions: (i) “Bridging the gap between law and society,” and (ii) “protecting the constitution and democracy.” As for gap-filling, it often turns out to be disingenuous politics: “The judge may give a statute new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing the statute itself,” writes Barak. “The statute remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs.” In other words, judges, not elected representatives, decide what are “new social needs” and then change the meaning of the legislature’s words to implement their insight; the legislature is not consulted.

Now, it is one thing to say that a statute (or a constitution) enacts a principle that must be applied to unforeseen circumstances; it is quite another, however, to say that the judge may leave the legislature’s words intact but change their meaning in order to introduce a principle that legislators never intended. The classic example of the former case is the Fourth Amendment to the United States Constitution, which forbids unreasonable searches and seizures by government. Ratified at a time when a man’s home and office were to be protected from invasion by a constable, the modern Supreme Court had little difficulty in deciding that placing an electronic listening device on personal premises fell within the same rationale. On the other hand, when the court invented a general, undefined right of privacy and made abortion a constitutional right, it wrote an entirely new principle into the Constitution without changing the words of that charter. There is, simply, no excuse for that. If the public thinks that freedom to abort a pregnancy is a “new social need,” it has only to enact a statute. Yet the court—much like its Israeli counterpart—had little patience with what it regarded as the retrograde views of the electorate. Consequently, it “filled gaps,” which is to say it rewrote the Constitution.

Barak deals with another example of changing the law while leaving the words intact. In 1986, the United States Supreme Court held that a state could constitutionally make homosexual intercourse a crime. Seventeen years later, it overruled that decision and instead made homosexual intercourse a fundamental right. “The difference between the two decisions,” Barak writes, “did not reflect a constitutional change…. Rather, the change that occurred was in American society, which learned to recognize the nature of homosexual relationships and was prepared to treat them with tolerance.”

If words have any meaning at all, it is preposterous to say that a constitution remains unchanged when one constitutional decision overrules a prior one such that what had been subject to criminal punishment becomes instead a fundamental right. In the United States, moreover, as Barak surely knows, the federal system places almost all decisions about morality in the hands of the various states. Texas, whose statute was declared unconstitutional, comprised the only constitutionally relevant society. There is no conceivable constitutional reason why Texas’ moral choice should be submerged in, and cancelled by, an abstraction called “American society.” In truth, what changed between the two decisions on homosexuality was simply the membership of the court. The new majority was, and presumably still is, waging a campaign to normalize homosexuality. Call it “constitutionalizing” politics if you like, but there is nothing democratic about it.

 

The duty to protect the constitution and democracy, the second role assigned judges by Barak, in his hands turns out to be something very different: A claim of judicial power to create a constitution the people did not choose, and then to protect the judge-made charter against the legitimate claims of democracy. “The Israeli Supreme Court,” he writes, “held that the two Basic Laws passed in 1992, Basic Law: Human Dignity and Basic Law: Freedom of Occupation, are the supreme law of the land and constitute part of Israel’s constitution. [The case] Mizrahi Bank subjects any new statute to judicial review under these Basic Laws. I called this development a ‘constitutional revolution.’” (Emphasis mine.) Yet as Evelyn Gordon has written, the assertion that the Basic Laws had constitutional status empowering the Israeli court to strike down contradictory legislation is “dubious in itself, given that the Basic Laws underwent no constitutional ratification process and were approved by a mere quarter of the Knesset.” (The small vote is probably accounted for by the fact that it was taken in the middle of the night, and nobody suggested that the revolutionary change of giving the power to override both legislative and executive acts to the courts was in fact taking place.) In addition, Barak’s “constitutional revolution” sits rather uncomfortably next to his statement a few pages later that “The court is authorized to interpret the constitution, but it is not authorized to create a constitution.”

Two other features of the judges’ constitution require notice. First, judges may change the constitution at will, but the people and their elected representatives may not; the judicial creation of the Israeli constitution is an open-ended process. Barak asserts that, even without any change in the Basic Laws and statutes, judges may insert “new fundamental principles.” He quotes approvingly an opinion by another judge that the role of the state is to “fulfill the will of the people and to give effect to norms and standards that the people cherish.” The question goes unanswered: If the people cherish these new fundamental principles so much, why haven’t they enacted them as law? The judge’s answer is unsettling: Not all people qualify as “the people.” New fundamental principles require that “a process of ‘common conviction’ must first take place among the enlightened members of society regarding the truth and justice of those norms and standards before we can say that a general will has been reached that these should become binding with the approval and sanction of the positive law.” (Emphasis mine.) The “general will” consists of the opinions dominant within the intellectual class at any given moment, so that the “people” who do the cherishing are academics, journalists, intellectuals, and, of course, judges. Judges will decide when a general will has ripened sufficiently, and then, without further ado, convert the norms and standards into positive law.



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