To Reclaim Our Democratic Heritage

The Editors

Copyright (c) 1997 First Things 69 (January 1997): 25-28.

The symposium on the judicial usurpation of politics has generated an intense debate about many things, as is evident in the above responses, in the letters section of this issue, and in the many commentaries appearing in other publications. Obviously, this is a debate that will continue. William Bennett is right: the stakes are indeed high. They are too high to indulge any desire to score debating points. Our hope is to move toward a conversation that is calm, deliberate, and keenly aware of the implications of conclusions reached.

We deeply regret the resignations of valued friends who believe this entire discussion is out of order. Their distress no doubt reflects honest disagreement, but also, we believe, misunderstanding. Neither the editorial introduction nor the essays in the symposium asserted that the government of the United States is illegitimate. We thought that was made clear, but apparently not. The editorial distinguished between the judicial usurpation of politics, which we called the current regime, and the polity defined by the Constitution. The editorial said: "What is happening now is the displacement of a constitutional order by a regime that does not have, will not obtain, and cannot command the consent of the people."

What we called the regime is an aberration. We do not agree that the judicial usurpation of politics is inevitable or irreversible, that it is, in fact, to be equated with the government of the United States. It is this regime of the judicial usurpation of politics that is illegitimate. We are sorry that this crucial distinction was not clear to some of our readers. It seems part of the difficulty is in the use of the term "regime," which in some political theory has a very definite and comprehensive connotation. In order to avoid confusion, we suggest the term should be used with caution, if at all, as the discussion continues.

Of course, the question inevitably arises as to whether the aberration is somehow inherent in the constitutional order itself, in which case some may argue that it is not, properly speaking, an aberration. In the symposium, Judge Bork writes: "On the evidence, we must conclude, I think, that this tendency of courts, including the Supreme Court, is the inevitable result of our written Constitution and the power of judicial review." An aberration that is, in retrospect, seen as an inevitable result is still an aberration.

The Founders may be accused of a lack of prescience, but it is certain that they did not intend a government by what Bork calls judicial oligarchy. All the participants in the symposium, with the editors, believe that the aberration of a nation governed by judges is not irreversible. Different remedies are suggested and varying degrees of hopefulness are expressed about the likelihood of their being adopted or, if adopted, whether they will be effective. But there should be no doubt that the symposium is an urgent call for the American people to reassert the theory and practice of democratic self-government and thus revive the republic bequeathed us by the Founders.

It is said that the question of illegitimate government is not and should not be a subject of contention. That, some contend, is a question that was agitated in the radicalisms of the sixties, and should now be consigned to the past and declared undiscussable. While the editors are not of one mind as to how the discussion should proceed, the question was a subject of contention, also in our pages, before the November symposium, and will continue to be a subject of contention, whether or not we want it to be. The question of legitimate and illegitimate government, and what it means for the governance of this country, should be a subject of contention. It has been that since the founding of this republic, and will be so long as it endures. To give the experience of the sixties veto power over the democratic discourse of today is to grant the madnesses of that time a victory that they do not deserve.

Respondents in this issue remind us that the problem is more with the culture than with the courts. We wholeheartedly agree. The operating premise of this journal is that politics and law are, most importantly, aspects of culture. At the heart of culture is morality, and at the heart of morality is religion. No one can fairly accuse this journal of neglecting our cultural crisis. Professor Glendon and others render an important service by placing this discussion in the context of what she calls the several "pathologies in the body politic." The question of the judicial usurpation of politics is not the most critical question facing our country. The most critical question is that of spiritual and moral reawakening. The judicial usurpation of politics was, however, the question posed for discussion in the November issue. And, as that symposium amply demonstrates, it is a question closely related to the spiritual and moral, as well as political, health of the body politic.

We did not choose this controversy. It was started by a judiciary, and most particularly by a Supreme Court, that has increasingly arrogated to itself the legislative and executive functions of government. In more recent years, the judiciary has disregarded and nullified the democratic deliberations and decisions of the American people on how we ought to order our life together, which is the subject matter of politics. That is what is meant by the judicial usurpation of politics. The Supreme Court itself, notably in the Casey decision of 1992, has raised the question of the legitimacy of its rulings, and called upon the people to ratify that legitimacy by following its lead. We believe the governed have not given their consent to being governed by the courts, unless ignorance and indifference are construed as consent.

At question here is not merely a series of errors, even appalling errors, in particular court decisions. If the judiciary continues on its present course, if it does not restrain itself, and if there is no way to restrain it, we are witnessing the end of democracy. And when we speak of the end of democracy it is not inappropriate to allude to the authoritarian and totalitarian alternatives to democracy, no matter how uncomfortable such allusions may be. In no way do the editors assume that such restraint of the judiciary is impossible. We wrote in our introduction, "We hope that more people know and more people care than is commonly supposed, and that it is not too late for effective recourse to whatever remedies may be available. It is in the service of that hope that we publish this symposium." That was and is our earnest intention. We probably cannot do much about critics who choose to think that we do not intend what we say we intend.

Judicial activism, as it is called, is nothing new. The problem today is not one of degrees in judicial activism. There has been a qualitative change. It is not a matter of the judiciary stretching its authority in order to act when action is necessary and the other branches of government are paralyzed, as was arguably the case with racial segregation. Robert Bork, among many others, has made the constitutional case that the Brown decision of 1954 was rightly decided, and it has, in any event, been effectively ratified by the consent of the people.

In subsequent years, something very different has been happening. Judges, no doubt emboldened by the moral aura emanating from Brown, routinely assume that it is their prerogative to make the big decisions about how we ought to order our life together. On issue after issue, government by judicial fiat is no longer the exception but the rule. Arbitrary judicial preferences are speciously constitutionalized. Among the virtues of democracy, Justice Antonin Scalia has written, is that it allows the people to argue with one another, persuade one another, and to change their minds. "That system is destroyed," says Scalia, "if the smug assurances of each age are removed from the democratic process and written into the Constitution. Our ancestors left us free to change. The same cannot be said of this most illiberal Court."

This most illiberal Court and the judicial system for which it sets the pace are set on a course that has done serious damage to democracy and will, unless checked, result in the end of democratic government in this country. Again, we believe the courts can be checked and hope they will be checked. But perhaps not. If not, we should be reminded that most people have lived and do live under governments that are not democratic, and we Americans might get used to it as well. Yet the loss of democratic self-government is not just a political loss.

The development of Christian thought over time has led to an understanding that democracy is morally imperative. It was very deliberate that, in the issue immediately preceding the November symposium, we published the declaration "Christianity and Democracy," which sets forth the case for that imperative. Not all Christians share this understanding of the democratic imperative, but it is powerfully supported also by Catholic social teaching, as witness in particular the 1991 encyclical Centesimus Annus (The Hundredth Year), which has received careful attention in these pages. In this view, there is an important connection between democratic government and legitimate government.

Democracy can assume different forms, and governments that do not style themselves as democratic are not necessarily illegitimate. Remember, too, that the Communist totalitarianism of our century spuriously claimed to be democratic. For a discussion of the institutions and practices that mark authentic democracy, we refer the reader to the above-mentioned "Christianity and Democracy." For present purposes, we note only that a government, such as ours, that makes its claim to legitimacy on the basis of democratic theory and practice raises a question about its legitimacy when it violates democratic theory and practice. The judicial usurpation of politics is a grievous violation of democratic theory and practice.

Our position, our hope, is that this violation has not been perpetrated by the government of the United States. It does not have and will not obtain the consent of the executive and legislative branches nor of the sovereign people. The people and their representatives have not, in the words of Lincoln's First Inaugural, addressing the Supreme Court's decision in Dred Scott, "practically resigned their government into the hands of that eminent tribunal." The problem before us is precisely one of judicial usurpation.

Anarchy and despotism are indeed to be greatly feared, but it is not we who are raising that prospect. That prospect is raised by the courts that deny the democratic deliberation of vital questions affecting the whole people. Lincoln in the same address: "A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; the rule of a minority, as a permanent arrangement, is wholly inadmissable; so that, rejecting the majority principle, anarchy, or despotism in some form, is all that is left."

Permanent rule by the small minority that is the judicial elite is wholly inadmissable. It is our hope that the people and their political leaders will come to share that conviction and give it public effect. Some object that there have been many wrongs in the past-for instance, slavery and the Vietnam War-that did not raise the question of legitimacy. Distinctions are in order. The toleration of slavery was an ominous and deliberate compromise in the founding. Many people, with Lincoln, believed that the eventual extinction of slavery was intended by the Founders. The Vietnam War, whatever one may think of its justice, was a failed policy of the executive and legislative branches. The judicial usurpation of politics is qualitatively different. In Roe, Casey, Romer, and other decisions, this most illiberal Court has imposed not only what we believe are wrong policies, but has imposed them in the form of unchallengeable constitutional principles.

The sense of crisis is intensified because these illegitimate impositions, both past and in prospect, are on matters of great public gravity. The legal killing of millions of unborn children, the extension of that license to kill the sick and elderly, the redefinition of marriage and family, the unlimited tolerance of pornography, the exclusion of religion from public life-these and others are what Lincoln called vital questions affecting the whole people. The judicial removal of these public questions from democratic deliberation and decision is the more insidious and difficult to resist because it is frequently done in the name of enhancing privacy and the rights of the autonomous self. Moreover, many politicians who prefer not to address difficult and morally laden questions, or who share the policy preferences of the courts, are actively complicit in the judicial usurpation of politics.

Government by the judiciary and the waning of democratic politics should not be viewed as an exclusively conservative concern. Writing in Dissent, Michael Walzer, a prominent liberal philosopher, cautions that the nation's rules are increasingly made without regard to what the majority thinks the rules should be. Because of the role of judicial and other elites, Walzer writes, "there is a sense in which the 'left' or some vulgarized version of the left [has] dominated the culture" for the last several decades, although "many Americans experienced this left culture as something alien, frightening, or deeply disturbing." Liberals who care about the American democratic experiment, and many do, should take Walzer's warning to heart, recognizing that, despite the attraction of short-term gains for their policy preferences, the tyranny of the minority is in accord neither with their beliefs nor their long-term interests.

Perhaps the most ominous development is the growing explicitness with which the judiciary rejects any moral law superior to the law of the state, as defined by the courts. The Supreme Court decisions analyzed in detail in the November symposium would seem to declare that the Judeo- Christian moral tradition has no standing in our polity. More than that, the Court suggests in Romer that citizens whose vote is motivated by "an ethic and morality which transcends human invention" are illegitimately imposing their religion upon others. That claim figures prominently also in circuit court decisions on assisted suicide that are now before the Supreme Court.

Almost all Americans claim adherence to an ethic and morality that transcends human invention, and, for all but a relatively small minority, that adherence is expressed in terms of biblical religion. By the strange doctrine promulgated by the courts, Christians, Jews, and others who adhere to a transcendent morality would, to the extent that their actions as citizens are influenced by that morality, be effectively disenfranchised. It is a doctrine that ends up by casting religious Americans, traditionally the most loyal of citizens, into the role of enemies of the public order. We cannot help but believe that the courts do not intend that consequence. They must be given every possible encouragement to abandon the reckless course they are presently pursuing.

In this discussion, a number of legal remedies have been proposed. They should be carefully examined and, where possible, urgently pressed. The symposium also includes a survey of possible responses if or when remedies fail, ranging from noncompliance to civil disobedience to organized resistance to justified revolution. That reflection is part of a very long tradition of moral and political thought about legitimate responses to illegitimate government. As explained above, we do not believe that the government of the United States is illegitimate. Ours is not a revolutionary situation and, please God, will never become that. Like those who signed the Declaration of Independence, we are today confronted by a "long train of abuses and usurpations." We believe that the republic that emerged from their revolution has the means to redress today's abuses and usurpations.

Nor have we issued a call to civil disobedience. Individuals cannot in conscience obey laws that contravene the moral law, but that is very different from an organized program of civil disobedience on the model of, for instance, the civil rights movement led by Martin Luther King, Jr. And both are different from Robert Bork's suggestion in the symposium that an elected official might refuse to obey a decision of the Supreme Court. Bork writes, "To the objection that the rejection of a court's authority would be civil disobedience, the answer is that a court that issues orders without authority engages in an equally dangerous form of civil disobedience." As Lincoln insisted, public officials who are sworn to uphold the Constitution have a duty to interpret the Constitution. To give the judiciary a monopoly on constitutional interpretation is an abdication of public responsibility.

Yes, there is a danger that the very discussion of these matters could be exploited by the violent who do not share our devotion to this constitutional order and the rule of law. As the specter of illegitimacy is raised by justices in black robes who replace the rule of law with their personal predilections, so the specter of violent revolution is raised by angry men in army fatigues playing war games in the woods of Idaho. We believe, however, that the delusions of weekend revolutionaries should not set the boundaries of political discussion. Indeed, acquiescence in judicial usurpation, far from warding off extremism, would likely increase the number of Americans who believe there is no alternative to violent change. We therefore call for the vigorous pursuit of every peaceful and constitutional means to return our country to its democratic heritage, and to encourage its people to take up again what Professor Glendon calls the hard work of being citizens rather than subjects.

Some critics claim that the symposium and its reverberations prove once again that religion in the public square is a subversive force. There is a strong element of truth in that. Certainly authentic religion cannot be captive to any political or ideological movement, whether of the right or of the left. The crisis of the judicial usurpation of politics is not created, however, by religion's problem with the judiciary. It is created by the judiciary's problem with religion. Indeed, it is created by the judiciary's problem with being held accountable, in accord with the will of the people, to any judgment other than its own. In Casey the Court worried about the legitimacy of the law that it is making. It is right to worry. It should be more worried than it apparently is. If, as we hope, we are not on the way to the end of democracy, the judiciary will restrain itself, or it will be restrained.