Robert H. Bork
Washington, D.C.
I entirely agree with those contributors to the November symposium ("The End of Democracy? The Judicial Usurpation of Politics," November 1996) who maintain that the judiciary has vastly exceeded its proper powers and that this is a very serious problem for our polity. But I do not at all agree that this raises the specter of the illegitimacy of our government.
Slavery did not illegitimize the Founding, as some radical historians suggest. Nor did the Vietnam War (an "unjust war," many claimed) illegitimize the government of that time. By the same token, the appalling errors of the present judiciary (in respect to abortion particularly) do not illegitimize the government today. If abortion is the litmus test of a moral law that cannot be violated by positive law, then all of the Western democracies that legalize abortion-and do so by the legislative rather than judicial process-are illegitimate. (Indeed, the only legitimate governments would be Iraq, Iran, and the like.)
The Editors' Introduction cites the American Revolution as if we are now in a similarly revolutionary situation-an analogy that, in my opinion (and that, I believe, of the overwhelming majority of Americans), is absurd and irresponsible. It also cites a papal encyclical affirming the supremacy of the moral law. But the pope did not declare Nazi Germany or the Soviet Union illegitimate, despite the genocide and mass murders, which were surely as much violations of the moral law as abortion.
The use of the word "regime" compounds the problem, for it suggests that it is not the legitimacy of a particular institution or branch of government that is at stake but the very nature of our government.
This is not, it seems to me, a proper mode of political discourse, still less of conservative political discourse. Indeed, it discredits, or at the very least makes suspect, any attempt by conservatives to introduce moral and religious considerations into "the public square"-as if morality and religion necessarily lead to such apocalyptic political conclusions. It can only confirm many Americans in their suspicion that cultural conservatism is outside the "mainstream" of American politics, that it is "extremist," even subversive.
I am not reassured by the promise that this is only the opening round of the discussion, that this magazine (and other journals as well) will continue to explore this theme and present different points of view. On the contrary, in my opinion this aggravates the problem, for it focuses attention even more on a subject that is not and should not be a subject of contention. It makes it sound as if the legitimacy of the government is a major concern of conservatives, and this is precisely the idea that I find unacceptable.
It is with great regret that I am resigning from the Editorial Board of FIRST THINGS, a journal with which I have been proud to be associated. But you have raised so grave and, in my opinion, irresponsible an issue, and given it such prominence, that I cannot, in good conscience, continue to serve on the board.
Gertrude Himmelfarb,
Washington, D.C.
You do not speak for me (a member of the Editorial Advisory Board since the inception of the journal) when you say that the government of the United States is morally illegitimate and come close to advocating not only civil disobedience but armed revolution. I don't care to engage in an argument with you; I want simply to announce my resignation from the advisory board. Please remove my name from the masthead.
Walter Berns
American Enterprise Institute
Washington, D.C.
The symposium presses beyond the conventional neoconservative critique of the substance of recent decisions and the legal reasoning by which they have been reached and raises the far more important questions of the transcendent truths upon which our republic is founded. In so doing, your journal will undoubtedly upset both those committed to the new turns of the courts and those who find these developments alarming, but refuse to ground their opposition in philosophical and theological claims. As several of your contributors demonstrate, because the new positions are themselves based on claims about the ends and goals of individual and communal life, an agnostic traditionalism cannot suffice to counteract them.
The calls for civil disobedience that some of your contributors issued should be alarming to anyone and most of all to members of a vulnerable minority like the Jews. But the image of a judiciary highhanded in its disregard for the moral convictions of the populace and the political traditions of the nation is at least as alarming. Let us hope that reason and constitutional principles prevail.
Jon D. Levenson
Harvard Divinity School
Cambridge, MA
What a splendid issue is November 1996, what a remarkable team of contributors cogently making a common point. Robert Bork, Russell Hittinger, Hadley Arkes, Charles Colson, and Robert George have given us all cause to pause. Congratulations for the wisdom and courage of this symposium- and for the brilliant lead-in to it.
Ralph Mclnerny
University of Notre Dame
Notre Dame, IN
Bravo! The FIRST THINGS symposium is a splendid analysis of the plight in which America now finds itself. The presentation of how desperate our situation is has already distressed those "conservatives" who want nothing more than to be the regime's "loyal opposition," forever offering half-hearted dissent to whatever decadence the dominant culture foists upon us. So be it. Your ship's course will be much steadier for their having jumped.
Of course, the culture of decadence extends far beyond the courts. Its tentacles envelope the real sources of social control-education and the media. To break this hold will require a passionate commitment which understands the nature of power and a willingness to confront the Beast with whatever (moral) means are necessary to defeat it. The task at this late hour may prove futile, but it is the only one which takes "first things" seriously....
(Rabbi) Mayer Schiller
Monsey, NY
. . . Our moral order and political system which the judiciary is busily undermining are the fruit of "the laws of nature and of nature's God," the principles of the Declaration of Independence. Even today few doubt that both reason and revelation, nature and God, support the traditional family, protect children at every stage of life, and proscribe unnatural carnality. In the Declaration of Independence, those laws are invoked to establish criteria for the legitimacy of government, spelled out with some precision. Finally they provide the raison d'etre of the Constitution itself (on which the judiciary depends for its own powers). "The laws of nature and of nature's God" ultimately are our constitutional order: to be a citizen of America is to adhere without qualification to the regime based on those principles.
On October 8, 1995, in Baltimore Pope John Paul II said:
If an attitude of skepticism were to succeed in calling into question even the fundamental principles of the moral law, the democratic system itself would be shaken in its foundations.... The United States possesses a safeguard, a great bulwark, against this happening. I speak of your founding documents: the Declaration of Independence, the Constitution, the Bill of Rights. These documents are grounded in and embody unchanging principles of the natural law whose permanent truth and validity can be known by reason, for it is the law written by God in human hearts.Do the editors of FIRST THINGS lack John Paul's measured confidence in the power of our principles? Where the Pope insists that we must embrace the highest truths of our own regime, FT wonders whether we would not be better off deserting it as illegitimate. However unintentionally, this weakens the constitutional allegiance of Catholic and other citizens outraged at judicial insolence and abandons our great "founding documents" to unchallenged control by the liberal elites.
Only two years before a constitutional majority elected Abraham Lincoln and his party to sweep slavery down "the course of ultimate extinction," all three federal branches were dominated by proslavery interests. The Supreme Court had just held that according to the Constitution black men can neither be citizens nor possess rights which white men must respect. By 1858 the struggle against slavery appeared lost, yet Lincoln neither despaired nor publicly speculated about whether the Constitution was "legitimate." Instead, somewhat like Pope John Paul, Lincoln demanded that the principles of equality and liberty, the moral truths of human dignity which form the Constitution's foundations, become the "civil religion" of every citizen.
The citizens of America need to be instructed that, as sovereign, they possess powerful instruments with which they can take back their Constitution whenever they choose, including the electoral process, impeachment of judges, constitutional amendment, declaratory and prohibitory laws nullifying abusive court holdings, legislative denial of jurisdiction, and others. The real question is the political and moral health of our people. If we are not healthy enough to return to the principles of self-government, the alternatives are less palatable, less democratic, not to say despotic. Machiavelli might approve but the Pope and, I have no doubt, FT's editors would prefer to witness to the self-evident truths of "the laws of nature and of nature's God" until our citizens restore the constitutional order to "first things."
Dennis Teti
Washington , D.C.
It would have been helpful had Robert Bork laid out the evidence he merely mentions in claiming that the moral and political havoc wreaked by the Supreme Court "is the inevitable result of our written Constitution and the power of judicial review." This claim seems to legitimize the Court's present hegemony. If Judge Bork's claim is admitted, then all the Court's "departures from the Constitution" (his phrase), all the cultural upheavals worked by the Court and deplored by him and by the other contributors to your November symposium, are an abuse of lawful authority, not an exercise of arrogated authority....
Our archonocracy has arisen . . . not from the intent of the Framers but from the claim of the Court, first enunciated and implemented in Dred Scott, that it has the duty (hence power) to void Federal law it deems unconstitutional. The clincher came when the Court expressly pronounced such law inapplicable not only to parties to the case before the Court but to anyone....
If the branches of the federal government are truly coequal, if the President and Congress are not subordinated to the Court by the Constitution (except insofar as the Court might declare them to be), then the theme of "judicial restraint" that runs wistfully through your symposium is less an appeal for the impossible than a misconstrual of the problem.
Yet this phrase can be redeemed. Rather than take "judicial restraint" in the unrealistic sense of an all-powerful and unaccountable judiciary restraining itself, we should take it in the constitutional sense of a judiciary restrained by the other two branches.
Our plight is fully as atrocious as your symposium presents it, but not so desperate. There is no need to speak of extreme measures when proven remedies are within our grasp. We can take heart from history, for, whatever the Burkes and the Actons may say, it is a preceptor of principles and not merely of prudence.
Patrick G. D. Riley
Wauwatosa, WI
And it came to pass that, as the Federal judiciary sat in the courts of law interpreting the Constitution, the anti-usurpationists and the cultural warriors and the original intentionites came and said, Tell us, by what authority make ye these activist rulings? Or who gave you this authority?
And the judges and justices answered and said unto them. We also will ask you one thing, which if ye tell us, we in like wise will tell you by what authority we do these things. The decision in Brown v. Board of Education, whence was it? From a licit interpretation of the Constitution or from judicial usurpation of politics? Answer us.
And they reasoned with themselves, saying, If we shall say, From a licit interpretation, they will say, Then the usurpation of politics is not the real issue, is it? But if we shall say, From judicial overreaching we will lose our credibility, because all know that Jim Crow was unjust no matter what the majority wanted.
And they answered the judiciary and said, We will not mention your decisions against racial segregation or discrimination in our diatribes in FIRST THINGS.
So their arguments lost their force because the "Impeach Earl Warren" movement was not ignited by any 1947 ruling on the establishment clause.
. . . Without Brown the nation would surely have faced
generations of struggle against legal segregation. As it v. as,
Brown assisted mightily the nascent popular movement and
galvanized the enforcement mechanisms of the Executive Branch. A decade
later the Congress began to act. The least democratic branch of
government took the initiative, while the most democratic took years to
act. Apparently your symposiasts would have opposed such a sequence of
actions. It's too bad that it somehow slipped all their minds to apply
their analyses to Brown.
Staten Island, NY
. . . The whole usurpation of power by the courts over intimate aspects of our lives began with the discovery in Roe v. Wade of a "right of privacy." Justice Blackmun opined that "this right of privacy, whether it is founded in the Fourteenth Amendment's concept of personal liberty as we feel it is, or, as the District Court determines, in the Ninth Amendment, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" (emphasis added).
Courts are not supposed to feel; they are supposed to know exactly where and what in the Constitution permits or gives such a right. The majority could not find it then and cannot now. The Court keeps on going back to Roe as foundational to justify all the other rights that the Court found emanating from that decision. If, therefore, Roe is illegitimate the whole structure (abortion, contraception, homosexuality, right to die) comes crashing down. That is why every few years the Court must reiterate this abortion right as foundational to its legitimacy and to all the cases about privacy decided since Roe....
But how do millions of people give assent to decisions that they think are inherently immoral and an abomination? Is this not a replication of the demand of the Third Reich that its policies be accepted by the Volk under pain of undermining the established order? Patriotism demanded that the Germans submit, just as we are reminded that unless we submit to the ukase of the Court on the abortion decision, the Court's very legitimacy will come into doubt. Such a demand places the committed Christian in an impossible dilemma, a choice between the legal system and his conscience.
When I became a lawyer I swore to uphold the Constitution of the United
States, which now, as interpreted by the Court, contains newly
discovered rights that, if accepted, would destroy my moral and
religious beliefs and therefore my conscience. This oath was always
conditional. Long before that in a commitment to God, Christ and his
Church, I committed myself to God's law and precepts, which
unconditionally take preference over all human laws: "We must obey God
rather than men" (Acts 4:19). I must follow conscience and God rather
than Roe, Romer, and Casey.
Houston, TX
Judicial usurpation of politics, while it is a danger to and a flaw in our democracy, is not the end of democracy. As soon as a solid majority of the country is ready to act against the courts, the President and the Congress can get together to appoint enough new Justices to put the courts back in their proper place. If sufficient public feeling against the judges' usurpation is aroused, the Court may offer "timely compliance" to the demand for judicial restraint, as it did in the 1930s....
The reason to insist that even with judicial usurpation the U.S. is still a democracy is that internationally we are in a time when the critical division among nations is between democracies and non-democracies. While improving democracies is important, we should not let the ardor of our rhetoric in fixing our democracy lead us to blur the international line between democracies and authoritarian systems. ...
Max Singer
Chevy Chase, MD
I think the contention that "it is not unreasonable to conclude the [United States Catholic Conference] statement provides a religious gloss on policy directives advanced by secular Democrats" is, in fact, unreasonable. Although it is true that some of the USCC statements do support specific programs advocated by the Democrats, like the Earned Income Tax Credit, this is the exception in the statements that Fr. Sirico presents. Most every statement made by the bishops can be found in papal encyclicals that have been issued over the last hundred years.
For example, on jobs. Since Rerum Novarum in 1891, Catholic social teaching has supported the concept of a living (or family) wage for workers and the right of workers to organize and bargain collectively. Since Rerum Novarum, the Catholic Church has recognized that the government has a role to play in securing these rights. As for taxation, the language the Bishops use can be found in Mater et Magistra, which was issued by John XXIII in 1961.
Fr. Sirico also states that the Republican platform stresses "the family, free markets, and civil society," while the bishops and the Democrats stress "egalitarianism, government action, and redistribution of resources." The generalizations regarding the bishops are simply not supported by the text. Repeatedly, the bishops stress human dignity and the importance of family in meeting human needs. The family is central to Catholic social teaching, and that is clear from the bishops' statements on taxes, welfare, children, crime, and jobs.
Moreover, what Fr. Sirico describes as the "notable exception of abortion" should give him some sense that the bishops are engaged as bishops in genuinely offering pastoral advice based upon the Church's magisterium, rather than acting as Democratic pundits with miters. Finally, and I could go on, to suggest that the bishops are stressing "egalitarianism" is to treat their emphasis on our shared humanity and the dignity of the human person as if it were some veiled promotion of social leveling.
The bottom line here is that the Republicans' fascination with an unfettered free market and their lack of faith in the government's ability to provide any benefits to our common life (except to assist business in making money) is no more consistent with Catholic teaching than the Democrats' emphasis on individual freedom in social questions and their faith in human perfectibility through government action. Perhaps these days the bishops seem to be more in sync with the Democrats, but that could just as easily be attributed to the narrowness of the Republican message as to any attempt by the bishops to "support" the Democrats. Much of what the bishops are saying can be traced back to the mid-nineteenth century and the work of Wilhelm von Ketteler, Bishop of Mainz, Germany. The Church is not new to these issues, the Democrats and Republicans are.
Catholics who believe that one or the other party is more in line with Catholic teaching are kidding themselves. Both parties leave much to be desired in this regard. But to imply that the USCC is simply mouthing the Democratic party line in religious language, which has become increasingly fashionable in some circles these days, is irresponsible and factually inaccurate.
Vincent D. Rougeau
Assistant Professor of Law
Loyola University Chicago
Permit me to get out my red pencil: Does Professor Rougeau assume that the Democrats have appropriated Catholic social teaching? He asks us to believe that the U.S. bishops issued a statement called "Political Responsibility" during a U.S. election year that merely rediscovers nineteenth-century German social thought, which by chance offers a political platform that, by sheer coincidence, parallels the U.S. Democratic platform program by program, yet these very bishops are completely immune from influence by the current political constellation in their headquarters' host city of Washington, D.C. Further, this very professor tells us that the problem with Republicans-the party of Ford, Bush, and Dole-is that they are excessively committed to the "unfettered free market" and lack "faith in the government's ability to provide" social benefits, a position he claims is completely contrary to the Catholic faith.
If the Political Responsibility statement is in fact merely a recapitulation of Catholic social thought, then where is the emphasis on subsidiarity, that "fundamental principle of social philosophy" (Quadraesimo Anno), which expresses the Church's (not the Republicans') own sense of the inadequacy of state interventions? I look forward to seeing the documentation.
Ted Young
Santa Fe, NM
In his otherwise interesting review of my Poetic Justice, Alan Jacobs writes, "Nussbaum's lack of discernible interest in religion has not prevented the University of Chicago Divinity School from assigning her a course in Theological Ethics."
This statement contains two errors. I do not teach Theological Ethics. In the Divinity School I serve in the division of Philosophical Ethics, where I teach courses on my usual topics-ancient Greek philosophy, modern moral and political philosophy, theories of the emotions. Nor is it true that I have no discernible interest in religion. Anyone who knows me will know that my religion, Judaism, is important to me and that I am active in the affairs of my congregation. I don't write about Judaism because I don't know enough Hebrew. But I do address more general religious issues in some recent work.
Martha C. Nussbaum
University of Chicago
Chicago, IL
I am sorry that I mischaracterized Martha C. Nussbaum's position in the Divinity School of the University of Chicago. I took my information from one of the university's web pages, but I should have known better than to trust cyberspatial evidence. The phrase "lack of a discernible interest in religion" was singularly ill-chosen, and I apologize for it without attempting to blame someone else. It would be more accurate, perhaps, to say that Nussbaum's published work does not demonstrate the kind or degree of interest in theological and religious matters that one would normally associate with a member of a divinity school faculty.
While it is true that classical musicians in general may be as "reflexively liberal" as any group of people in the United States, the fact is that there are many of us who are not. In the Boston Symphony Orchestra, for instance, I and a number of my colleagues speak out quite vocally when the symphony stage is used as a soapbox for political and other forms of propaganda. Our recent performances of Elliot Goldenthal's Fire Water Paper: A Vietnam Oratorio, which Mr. Teachout cited, is a good case in point. A mostly derivative pastiche of questionable musical integrity, the piece was roasted (backstage, of course-as professionals we will play as well as we can anything that is put on our music stands) by most of my colleagues, and we complained bitterly that the last minute programming of the piece (replacing Brahms' Third Symphony) was no more than a marketing ploy foisted upon us by Sony Classical in order to boost CD sales of the work. The recording was already a cynical production in itself, with the last minute addition of an extended cello cadenza into the piece (at the suggestion of Sony's Peter Gelb in order to enhance the credibility of the whole enterprise) that was dubbed in later by Yo-Yo Ma.
The scandal that is John Corigliano's First (AIDS) Symphony continues to grip American orchestras, who vie for the chance to perform a Pulitzer Prize-winning work that reeks of anger but has little musical substance. It is the message, not the competence of the music, that appeals to conductors and, more importantly, symphony orchestra artistic administrators, who are always on the lookout for grant money from foundations willing to dole out dollars for "adventurous" and "relevant" programming. When the Boston Symphony performed Corigliano's Symphony several years ago, it opened an otherwise closed rehearsal only to "those affected with AIDS" and programmed another Corigliano piece, Rage and Remembrance for orchestra and chorus, that invited audience members to come to the stage, ring a bell, and intone the name of someone who had died from AIDS, while Symphony Hall was decked out with pieces of the AIDS quilt....
Terry Teachout is uncomfortable with the concept of an evidently
religious and certainly socially conservative composer, John Boyle,
composing a requiem for aborted children. Certainly Boyle's piece
(Requiem for the Unborn) has problems: the text is
weak and the music itself is not especially memorable or well crafted
(although there are moments that hold promise). But if Brahms could
write a powerful requiem without mentioning the words "God" or "Christ"
or "Jesus" and Britten can write an effective requiem about war, why not
a requiem for the victims of one of the great slaughters of human
history? Effective music about the Nazi Holocaust is increasingly
finding its way into concert halls (Michael Tilson-Thomas' The Diary
of Anne Frank, or music from John Williams' score for
Schindler's List).
Thoughtful contemporary symphonic alternatives to most of the left-wing pablum that is programmed in our concert halls will come as a relief to those of us who day after day sit on stage and play the music, often gritting our teeth, as an unsuspecting public heaps praise on the latest piece of leftist socio-musical drivel.
Douglas Yeo
Boston Symphony Orchestra
Boston, MA
If ever there were two opposite poles on the theological spectrum, it would be Thomistic natural law theory, with its nature/grace, faith/reason paradigm of reality, and Barth's dialectical theology, which rejects the rational knowableness of God. Walter Kasper writes in The God of Jesus Christ that Karl Barth "turned the question of natural theology into a new, hitherto unrecognized subject of controversy par excellence" Barth did not differentiate between the Thomistic natural law theology and the modern theology of the enlightenment, and their difference is still not being fathomed by otherwise very respectable theologians. Thomists hold for the possibility of a "natural" moral theology....
The underlying problem of our time is the myth or heresy that there is a sphere of completely autonomous reality properly under human direction alone apart from Cod. Barth's theology has unwittingly contributed to secularism and the twentieth-century phenomenon of the "atheism of the masses." Walter Kasper explains that the statement that "God Himself is dead," which goes back to an old Lutheran hymn, was taken back into theology by Karl Barth and Bonhoeffer, who agreed at least on this-that "the religious presupposition that is lacking in contemporary irreligious society" affords the human race the opportunity for a "true recognition of our situation before God." This statement is at total odds with natural law theology . . .
The Thomistic synthesis, which Hittinger clearly represents when he connects natural law to a doctrine of God, unearths the far-reaching background behind the rise of contemporary atheism in dialectical theology's placing these two revelations in opposition
Macon Kathleen Boczek
Novelty, OH
Philip Zaleski
Smith College
Northampton, MA
Obviously, the adoption of these proposals might become part of a decline of the ELCA into a more than dubious liberalism (although parts of the ELCA seem to be traveling along such a road already without help from others, thank you), but there is no reason why it should be such, if the proposals are adopted for sound theological reasons and if Lutherans enter these new relations precisely as the beginning of a process of pursuing a common life that must be held to the gospel the proposals witness to.
Theological integrity demands that debate center on the proposals themselves and not on whether they contribute to or hinder the decline of Protestantism in America. The decisive ecumenical consideration is whether two churches agree on those things that make a community a church. If they do, then they are theologically obligated to seek communion. Such, I take it, is the inner logic of what the Second Vatican Council said about ecumenism and what John Paul II reiterated in Ut Unum Sint in his eloquent statement that ecumenism is not optional.
Michael Root
Institute for Ecumenical Research
Strasbourg, France
Your editorial questions CHD's funding policies that are firmly rooted in moral teaching and consistent with those used by the Holy See in making its international disbursements. When President of the National Council of Catholic Bishops/United States Catholic Conference twenty-five years ago, the late John Cardinal Krol wrote the CHD's guidelines with regard to upholding the Church's moral teaching when it grants funds. These were unanimously adopted by the Administrative Board in 1972 and have guided the CHD evaluation process ever since.
Each project that seeks CHD funding is thoroughly reviewed by the local diocesan director, and each bishop is asked for input prior to a positive decision by our USCC-CHD Committee. We can and do insure, through quarterly financial monitoring, that projects that receive CHD financial support are free of any morally objectionable activity during the grant period.
Your article seems to be based upon false information from the Capital Research Center (CRC), a partisan group that has, for years, exhibited a total disregard for reportorial accuracy and fairness in regard to CHD.
The bishops support the Campaign because they have first-hand knowledge of its effectiveness in their own dioceses. Like me, they have seen the results: self-sufficiency, stronger families, and civic empowerment for the poor.
Ricardo Ramirez, C.S.B.
Bishop of Las Cruces
Chairman, USCC-CHD Committee
Las Cruces, NM
Granted that a few Jesuits have been in difficulty with ecclesiastical authorities, the same can be said of diocesan clergy, Dominicans, Franciscans and lay persons. After all, authors such as Hans Küng and August Hasler, Charles Curran and Richard McBrien, Charles Davis and Daniel McGuire, are not and never were Jesuits. Nor, for that matter, are Edward Schillebeeckx and Jacques Pohier, Matthew Fox and Herbert McCabe, Leonardo Boff and Jacques Gaillot.
Broadsides against whole orders in the Church, however whimsically intended, can do great harm. They are also unjust to the vast majority of Jesuits (or diocesan priests, Dominicans, or Franciscans) who labor faithfully, and often against great odds, in missions, universities, high schools, retreat houses, and parishes all over the world.
As for the current developments at Fordham Law School, notice should be taken of recent gains, such as the hiring of Gene Harper to teach a course on natural law. Jesuits and others who are working quietly to strengthen this outstanding law school through the resources offered by Catholic and Jesuit tradition deserve encouragement, not the supercilious abuse that Father Neuhaus heaps upon them. As Fr. Neuhaus says elsewhere in the October issue of FIRST THINGS, it is sectarian, not Catholic, to excommunicate those who stand to the right or the left of us within the Church.
Avery Dulles, S.J.
Fordham University
Bronx, NY