On October 2, 2000, the European Convention on Human Rights will be incorporated into English law through the Human Rights Act. Britain ratified the international convention some 50 years ago, but did not codify it domestically and give English courts and English judges the power to enforce it. Litigants have had to travel to Strasbourg, France, to the European Court of Human Rights, in order to have claims under the convention vindicated.
The European convention, adopted shortly after World War II, is hardly an unequivocal declaration of rights: A few rights are absolute, notably the rights not to be tortured or enslaved, and the convention is fairly forthright in its guarantee of fair-trial and due-process rights; but expressive rights--freedom of thought, religion, speech, and assembly--are greatly qualified. Speech rights, for example, are expressly limited by whatever restrictions are "prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Virtually any restriction on speech can be justified by these provisions; censors always claim that they're acting to protect the public health or safety, not to mention morals. Still, American civil libertarians are apt to view Britain's new Human Rights Act as a welcome and perhaps even essential step toward securing rights and liberties. It's hard to imagine how our own freedoms would have been secured without the Bill of Rights and the willingness of courts to enforce it. So, on a recent visit to London, I was surprised to hear some of our English counterparts express dismay that judges would soon be empowered to second-guess the legislature and define individual rights.
The judicial determination of rights is undemocratic; judges are unelected and unaccountable, several civil rights activists and civil libertarians asserted. These arguments against judicial power are quite familiar, but in America they're usually raised by people on the right, outraged by what they consider the ravages of judicial activism: abortion rights, the abolition of official school prayer, or the Miranda warnings and other rulings protecting the rights of the accused. Of course, courts sometimes deny citizens their fundamental rights. The arbitrariness of the death penalty is partly a consequence of the judiciary's failure to provide fair trials in capital cases. Still, on balance, civil libertarians have grown used to viewing the judicial system as an ally: Courts were essential to the American rights revolution of the twentieth century.
Some English liberals (at least the ones I encountered) are skeptical that their judges will join in any similar revolution, partly because they are creatures of their class (I guess that's why they're called "law lords") who have backgrounds in commercial law. "Criminal lawyers who concern themselves with what most assume is the stuff of human rights are at the grubby end of the trade," a recent article in The Guardian explained. The class system may well account for some English resistance to judge-made rights; maybe a democratically determined majority tyranny seems preferable to the tyranny of the minority ruling class. Some wariness of the Human Rights Act from the left may also reflect the fact that it was a New Labor initiative. Under Tony Blair's leadership, the government has been no great friend to civil liberty. It has, for example, proposed empowering police to impose instant fines on people charged with "drunken, noisy, loutish and anti-social behavior," without bothering to try them first. It has championed a new law prohibiting people labeled "potential hooligans" from leaving the country to attend football games. It has supported the development of a computer that will supposedly identify potential muggers or burglars.
But left-wing queasiness about the expansion of judicial authority under the Human Rights Act seems matched by a bit of queasiness on the right. The act will be a boondoggle for lawyers, right-wingers and tabloid papers warn; police will be leashed and criminals unleashed; gay people and teenagers will run wild.
Well, judges can be unpredictable, as several American presidents, surprised by their own Supreme Court appointees, have discovered. Should American civil libertarians continue to put their faith in the judiciary? Maybe we're deluding ourselves. Maybe the rights revolution was merely a blip. Maybe we'll change our minds about the courts if Bush wins the presidency and fills the federal bench with conservative activists or if Gore wins and appoints a slew of cautious centrists. Some liberal activists already question the focus on litigation by organizations like the ACLU, arguing that social change requires grass-roots support, not directives from on high. Some assert that abortion rights would be more secure today if pro-choice activists had pursued legislative victories in the states instead of turning to the federal courts for recognition of their rights.
Women residing in anti-abortion states who obtained abortions after 1973 because of Roe v. Wade may disagree. It's true that the Court's decision in Roe helped coalesce anti-abortion sentiment, but there is little reason to think that a pro-choice legislative strategy would have weakened it. People are genuinely divided over the morality of abortion and abortion rights; the current stalemate may have been inevitable.
I'm not diminishing the importance of political organizing or suggesting that courts should decide all controversial questions involving political rights. Movements for social change, like feminism, rely alternately on grass-roots activism, legislation, and judicial fiats, which should be issued sparingly. I sympathize with the Supreme Court's disinclination, in deference to the political process, to establish a federal constitutional "right to die." (In a 1997 case, the Court reversed two federal appeals courts' decisions that struck down state laws against assisted suicide.) Still, I believe that the state grossly abuses its power when it prohibits terminally ill people from choosing quick and painless deaths. I wish the Court had recognized a right to die; it seems quite fundamental.
Complaints about judicial activism are not entirely without merit: When judges use their constitutional authority to overrule the will of the majority, they are, in one sense, acting antidemocratically. But when judges overrule the majority in order to protect the dissenting individual, they are advancing fundamental democratic values. The drive of a terminally ill person to end his unwished-for life should trump the desire of his neighbors to keep him alive. How can an individual caught in a hostile community prevail if not through the courts? Judicial decisions prohibiting public schools from sponsoring sectarian religious activities may offend the majority in any given community, but they are essential to protecting religious freedom.
Repressive laws are sometimes demanded by majorities. Consider recent efforts to criminalize flag desecration or ban "indecent" speech on the Internet. So the need to protect against the tyranny of the majority remains an article of faith among American civil libertarians. Judges are often unelected and generally unaccountable (although they are hardly apolitical). Like academics, some abuse their tenure; some find in it the freedom to implement ideals. We risk a great deal by empowering the judiciary to define our rights, but we risk more by relegating fundamental freedoms to the vagaries of majority rule. Rights are the last resort of the unpopular. ¤