Magazine article The Spectator

The Rise of the Fu Movement

Magazine article The Spectator

The Rise of the Fu Movement

Article excerpt

New Hampshire

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. …

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