Le Pen: the will of the people of France is now irrelevant

Liberals and judges everywhere will be rejoicing at the elimination of Marine Le Pen from the presidential race for the Élysée, the former because they will happily find any means of defeating the will of the people, the latter because it is a reaffirmation of the rule and power of judges. That the countries of the EU as well as the USA (and the anglosphere generally) are facing a major constitutional crisis on the role and rule of activist-judges is certain. But long before a resolution of any kind is possible anywhere, how long before ordinary people take what remains of the law into their own hands? At that point it is of course no longer law, but the mob. That said,  is the mob not being perpetually incited and enraged by the ex-cathedra rulings of judges and public officials who are protected by means of their social status from living with the consequences of their many decisions?

The primary example of activist-judges’ law was the Roe vs Wade ruling that made abortion legal in the USA. No law, as such, was passed to make this so. “Roe” was the legalistic pseudonym adopted by Norma McCorvey in her case against the State of Texas for not allowing her to have an abortion. She and her legal team successfully argued that her right to privacy was intruded upon by Texas’s prohibition of abortion, and the case went all the way up to the Supreme Court, which found in her favour. McCorvey was later quoted as saying  that taking the case was the biggest mistake of her life, because she now opposed abortion. A posthumous allegation was made that in her later years she had, against her will, been persuaded to back the anti-abortion cause. Either way, there is sufficient confusion around the rights and the wrongs of this issue to mystify anyone but a judge – a species that is often rendered immune to modesty and self-restraint by both the coarsening of ordinary feelings by years at the bar, followed then by the glorious allure of unrestrained power on the bench 

The most effective arguer of the judge-as-lawmaker was probably Ruth Bader Ginsburg, who essentially encoded the Supreme Court’s ruling on Roe vs Wade into the legal theology of the USA. She also pioneered the elevation of female sensibilities into a protected characteristic after a 14-year-old girl was made to strip to her underwear during a search for drugs by a female staff member. She said of her other judges that none of them had ever been a 14-year-old girl being stripped to her underwear, a useless generalisation that applies equally to most cases before judges – yet her ruling was then acclaimed as an exemplary piece of jurisprudence.   

Indeed, defending a clear and obvious inequality as another and equal form of equality before the law has been a characteristic of “liberal” judges over the pasty fifty years, allowing then an almost indefinite amount of elasticity over many issues, such as bussing of school-students in the US. In Ireland, this was encoded in a law written by politicians that made it a criminal offence punishable by imprisonment for a 16-year-old boy to have sex with a 16-year-old girl, while the same law specified that the girl could not be so punished. The Irish Supreme Court then ruled this did not violate the Irish constitution’s proclamation of equality between the sexes. This made perfect sense to Irish lawyers, and apparently to Irish politicians, but perhaps less so to 16-year-old boys.

Thus the gulf between lawyers and the plain people – exemplified by the recent American practice of calling politicians “lawmakers”. They are of course far more than that; they are primarily and most importantly representatives of their electors, in both rhetoric and parliamentary vote. They are therefore not just mere  mechanics assembling laws for use by lawyers. But by turning them into useful stooges of the courts, their opinions (and those of their electors) are made secondary to their duty to facilitate the decision-making of lawyers, judges and courts. 

All this is relatively secondary to the horrors of the Le Pen decision, but is evidence that what is going on in France is a worldwide movement in democracies almost everywhere. As has been pointed out many times in Brussels Signal (and hardly anywhere else) the scandals of the interventions by the courts in the democratic processes in Romania and Italy have provided startling evidence how the courts really do believe they are superior to the democratic processes that appoint and protect them.  In the former, police have raided the homes of people “suspected” of racist or xenophobic inclinations, which is a shorthand way of describing supporters of the right-wing presidential candidate Călin Georgescu. Italy’s “right-wing” Prime Minister Giorgia Meloni discovered that there was consternation amongst senior judges that no serious judicial enquiries into her career had been launched.   (I use that meaningless term “right-wing” with a heavy heart, simply because it has a sort-of-meaning, rather like “a woman’s right to choose.” In both cases, there’s far more to it than the mere words employed.)

What is obvious in the Le Pen case is that there has been clear determination by her judges to ensure that she cannot run for president. A mere conviction on the charge of misuse of EU funds would not have so disabled her: a specific ban on political activity makes her punishment a specifically political one, and one that is rather reminiscent of the good old days of the Soviet Union before perestroika and glasnost made such political rulings not merely Stalinist but actually illegal. 

An allegation that the EU might, in even the faintest outline, start to resemble the old USSR could well seem slightly preposterous. But it is only preposterous because the EU rather resembles communism moving gradually in reverse. Or, to use a slightly different analogy, rather like a frog being slowly boiled alive, with a small smirk on its face which gradually and imperceptibly becomes a post mortem rictus. The acid test of this sinister process will be the response of Europe’s newspapers over the next few days, most of which will almost certain applaud the destruction of Le Pen’s ambitions. The will of the people of France is now irrelevant: they will be expected to comply with the EU policies on immigration, national integration and the replacement of parliamentary law by judicial edict. 

Readers of Brussels Signal, and we who have the privilege of writing for it, are fully aware of the meaning of the slowly hardening smile on the poor frog’s lips. Freedom is slowly dying in Europe. Dissent is treason. Defence of our ethnicities is xenophobic – only non-Caucasians are allowed the luxury of race. Our national histories are reactionary folk-tales. Foreign aid is now justified retribution for past injustices upon those societies which we freed from slavery and to which we brought laws and schools, roads and sewers, life-prolonging hospitals and modern drugs. Listen to your betters, namely the appointed judges within your various states. Nod obligingly at whatever you are told and never protest, for then you will join the truly accursed, and be called “far-right”, a species beyond any salvation. 

But most of all, obey….

Kevin Myers is an Irish journalist, author and broadcaster. He has reported on the wars in Northern Ireland, where he worked throughout the 1970s, Beirut and Bosnia.