Articles on judicial arrogance and the judicial usurpation of power are not new. The following symposium addresses those questions, often in fresh ways, but also moves beyond them. The symposium is, in part, an extension of the argument set forth in our May 1996 editorial, The Ninth Circuit’s Fatal Overreach. The Federal District Court’s decision favoring doctor-assisted suicide, we said, could be fatal not only to many people who are old, sick, or disabled, but also to popular support for our present system of government.
This symposium addresses many similarly troubling judicial actions that add up to an entrenched pattern of government by judges that is nothing less than the usurpation of politics. The question here explored, in full awareness of its far-reaching consequences, is whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime.
Americans are not accustomed to speaking of a regime. Regimes are what other nations have. The American tradition abhors the notion of the rulers and the ruled. We do not live under a government, never mind under a regime; we are the government. The traditions of democratic self-governance are powerful in our civics textbooks and in popular consciousness. This symposium asks whether we may be deceiving ourselves and, if we are, what are the implications of that self-deception. By the word regime we mean the actual, existing system of government. The question that is the title of this symposium is in no way hyperbolic. The subject before us is the end of democracy.
Since the defeat of communism, some have spoken of the end of history. By that they mean, inter alia, that the great controversies about the best form of governance are over: there is no alternative to democracy. Perhaps that, too, is wishful thinking and self-deception. Perhaps the United States, for so long the primary bearer of the democratic idea, has itself betrayed that idea and become something else. If so, the chief evidence of that betrayal is the judicial usurpation of politics.
Politics, Aristotle teaches, is free persons deliberating the question, How ought we to order our life together? Democratic politics means that the people deliberate and decide that question. In the American constitutional order the people do that through debate, elections, and representative political institutions. But is that true today? Has it been true for, say, the last fifty years? Is it not in fact the judiciary that deliberates and answers the really important questions entailed in the question, How ought we to order our life together? Again and again, questions that are properly political are legalized, and even speciously constitutionalized. This symposium is an urgent call for the repoliticizing of the American regime. Some of the authors fear the call may come too late.
The emergence of democratic theory and practice has a long and complicated history, and one can cite many crucial turning points. One such is the 1604 declaration of Parliament to James I: The voice of the people, in the things of their knowledge, is as the voice of God. We hold that only the voice of God is to be treated as the voice of God, but with respect to political sovereignty that declaration is a keystone of democratic government. Washington, Madison, Adams, Franklin, Jefferson, and the other founders were adamant about the competence”meaning both the authority and capacity”of the people to govern themselves. They had no illusions that the people would always decide rightly, but they would not invest the power to decide in a ruling elite. The democracy they devised was a republican system of limited government, with checks and balances, including judicial review, and representative means for the expression of the voice of the people. But always the principle was clear: legitimate government is government by the consent of the governed. The founders called this order an experiment, and it is in the nature of experiments that they can fail.
The questions addressed have venerable precedent. The American experiment intended to remedy the abuses of an earlier regime. The Declaration of Independence was not addressed to light and transient causes or occasional evils [that] are sufferable. Rather, it says: But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government and to provide new Guards for their future security. The following essays are certain about the long train of abuses and usurpations, and about the prospect”some might say the present reality”of despotism. Like our authors, we are much less certain about what can or should be done about it.
The proposition examined in the following articles is this: The government of the United States of America no longer governs by the consent of the governed. With respect to the American people, the judiciary has in effect declared that the most important questions about how we ought to order our life together are outside the purview of things of their knowledge. Not that judges necessarily claim greater knowledge; they simply claim, and exercise, the power to decide. The citizens of this democratic republic are deemed to lack the competence for self-government. The Supreme Court itself”notably in the Casey decision of 1992-has raised the alarm about the legitimacy of law in the present regime. Its proposed solution is that citizens should defer to the decisions of the Court. Our authors do not consent to that solution. The twelfth Chief Justice of the Supreme Court, Harlan Fiske Stone (1872-1946), expressed his anxiety: While unconstitutional exercise of power by the executive or legislative branches of the Government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of restraint. The courts have not, and perhaps cannot, restrain themselves, and it may be that in the present regime no other effective restraints are available. If so, we are witnessing the end of democracy.
As important as democracy is, the symposium addresses another question still more sobering. Law, as it is presently made by the judiciary, has declared its independence from morality. Indeed, as explained below, morality”especially traditional morality, and most especially morality associated with religion”has been declared legally suspect and a threat to the public order. Among the most elementary principles of Western Civilization is the truth that laws which violate the moral law are null and void and must in conscience be disobeyed. In the past and at present, this principle has been invoked, on both the right and the left, by those who are frequently viewed as extremists. It was, however, the principle invoked by the founders of this nation. It was the principle invoked by the antislavery movement and, more recently, by Martin Luther King, Jr. It is the principle invoked today by, among many others, Pope John Paul II.
In this connection, Professor Robert George of Princeton explores the significance of the encyclical Evangelium Vitae (The Gospel of Life). Addressing laws made also by our courts, the Pope declares, Laws and decrees enacted in contravention of the moral order, and hence of the divine will, can have no binding force in conscience . . . . Indeed such laws undermine the very nature of authority and result in shameful abuse. We would only add to Professor George’s brilliant analysis that the footnotes to that section of Evangelium Vitae refer to the 1937 encyclical of Pius XI, Mit Brennender Sorge (With Burning Concern) and other papal statements condemning the crimes of Nazi Germany. America is not and, please God, will never become Nazi Germany, but it is only blind hubris that denies it can happen here and, in peculiarly American ways, may be happening here.
We are prepared for the charge that publishing this symposium is irresponsibly provocative and even alarmist. Again, it is the Supreme Court that has raised the question of the legitimacy of its law, and we do not believe the Pope is an alarmist. We expect there will be others who, even if they agree with the analysis of the present system, will respond, So what? Unmoved by the prospect of the end of democracy, and skeptical about the existence of a moral law, they might say that the system still works to the satisfaction of the great majority and, niceties about moral legitimacy aside, we will muddle through so long as that continues to be the case. That, we believe, is a recklessly myopic response to our present circumstance.
Some of our authors examine possible responses to laws that cannot be obeyed by conscientious citizens”ranging from noncompliance to resistance to civil disobedience to morally justified revolution. The purpose of the symposium is not to advocate these or other steps; it is an attempt to understand where the existing system may be leading us. But we need not confine ourselves to speculating about what might happen in the future. What is happening now is more than disturbing enough. What is happening now is a growing alienation of millions of Americans from a government they do not recognize as theirs; what is happening now is an erosion of moral adherence to this political system.
What are the consequences when many millions of children are told and come to believe that the government that rules them is morally illegitimate? Many of us have not been listening to what is more and more frequently being said by persons of influence and moral authority. Many examples might be cited. Supreme Court Justice Antonin Scalia in a recent lecture: A Christian should not support a government that suppresses the faith or one that sanctions the taking of an innocent human life. The Archbishop of Denver in a pastoral letter on recent court rulings: The direction of the modern state is against the dignity of human life. These decisions harbinger a dramatic intensifying of the conflict between the Catholic Church and governing civil authorities.
Professor Hittinger observes that the present system has made what used to be the most loyal citizens”religious believers”enemies of the common good whenever their convictions touch upon public things. The American people are incorrigibly, however confusedly, religious. Tocqueville said religion is the first political institution of American democracy because it was through religion that Americans are schooled in morality, the rule of law, and the habits of public duty. What happens to the rule of law when law is divorced from, indeed pitted against, the first political institution?
God and country is a motto that has in the past come easily, some would say too easily, to almost all Americans. What are the cultural and political consequences when many more Americans, perhaps even a majority, come to the conclusion that the question is God or country? What happens not in normal times, when maybe America can muddle along, but in a time of great economic crisis, or in a time of war when the youth of another generation are asked to risk their lives for their country? We do not know what would happen then, and we hope never to find out.
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. If enough people do not care or do not know, that can be construed as a kind of negative consent, but it is not what the American people were taught to call government by the consent of the governed. 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.