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.
Our Judicial Oligarchy
Robert H. Bork
This last term of the Supreme Court brought home to us with fresh clarity what it means to be ruled by an oligarchy. The most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control. Only Justices Antonin Scalia and Clarence Thomas attempt to give the Constitution the meaning it had for those who adopted it. A majority of the court routinely enacts its own preference as the command of our basic document.
Most members of the Court seem to be gnostics, firmly believing they have access to wisdom denied the rest of us. What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court? Scalia has asked. Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.
This last term was unusually rich in examples. The Court moved a long way toward making homosexual conduct a constitutional right, adopted the radical feminist view that men and women are essentially identical, continued to view the First Amendment as a protection of self-gratification rather than of the free articulation of ideas, and overturned two hundred years of history to hold that political patronage is unconstitutional.
A few cities in Colorado, reflecting the political influence of homosexuals, had in recent years enacted ordinances prohibiting discrimination on grounds of sexual orientation. Even private persons who believe strongly that homosexual conduct is immoral or prohibited by religion were forbidden to act on those beliefs. A person with a room to rent, for example, could not turn away a homosexual couple. In a statewide referendum Coloradans adopted a constitutional provision, Amendment 2, which precluded local governments from adopting such provisions. The Supreme Court, in an indecipherable opinion ( Romer v. Evans ), held that this denial of special status to homosexuals violated the equal protection clause of the Fourteenth Amendment. The theory, apparently, was that homosexuals were impermissibly burdened if they had to secure special protection, equivalent to that afforded racial minorities, at the state rather than the local level. The law could be explained, the Court said, only by animosity toward homosexuals. The opinion closed with the preposterous assertion that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else.
To the contrary, any constitutional provision does what Amendment 2 did”it removes from some groups the capacity to alter the law except at the state or federal level. If one took the majority’s assertions seriously, as Scalia’s dissent noted, state constitutional provisions prohibiting polygamy would violate the equal protection principle. The State of Utah, for example, was admitted to the Union only on condition that its constitution’s prohibition of polygamy could not be revoked without the consent of the United States”thus requiring polygamists to persuade the entire nation and not simply the voters of Utah. Matters are even worse than that, however. Under what appears to be the majority’s rationale, it is difficult to see how any federal or state statute could be constitutional. Persons adversely affected by any national or state law are by definition unable to get relief at the local level. If homosexuals in Colorado were unfairly burdened by Amendment 2, then we are all unfairly burdened by the very existence of federal and state law.
The majority did not even mention the ten-year-old decision in Bowers v. Hardwick , which had held, in keeping with long-standing constitutional understanding, that a state may make homosexual conduct a criminal offense. Since the Court has now held that the denial of special status to homosexuals is unconstitutional, Bowers must be taken to have been silently overruled.
Romer is a prime instance of constitutional law made by sentiment having nothing to do with the Constitution. What can explain the Court majority’s decision? Only the newly faddish approval of homosexual conduct among the elite classes from which the Justices come and to which most of them respond. We are on our way to the approval of homosexual conduct, despite the moral objections of most Americans, because the Court views such moral disapproval as nothing more than redneck bigotry.
The cultural elite have more fads than one, however. Radical feminism overrode the Constitution in United States v. Virginia , which held, seven votes to one, that the equal protection clause required Virginia Military Institute to admit women. VMI had been an all-male military college for over 150 years and had coexisted peaceably with the said equal protection clause for 128 of those years. The historic understanding was that such single-sex schools were fully consistent with the Constitution. VMI provided adversative methods of training, which meant a program that was extremely rigorous mentally, physically, and emotionally. The admission of women will change the nature of the institution; women will not get what they supposedly sought: VMI training. Only sterile feminist logic could lead anyone to imagine that there are no inherent differences between men and women in these matters.
Once again, Justice Scalia (Justice Thomas took no part because his son attends The Citadel, another all-male military college) destroyed the majority opinion. Much of the Court’s opinion is devoted to deprecating the close-mindedness of our forbears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education . . . . The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our Basic Law.
Scalia understates how radical an antidemocratic course the Court has taken. The Justices are not inscribing current preferences of our society into the Constitution, for those preferences can be easily placed in statutes by legislatures. When the Court declares a statute unconstitutional it overrides current popular desires. The counter-majoritarian preferences are not simply those of a law-trained elite, but those of a wider cultural elite that includes journalists, academics, entertainers, and the like. If only a law-trained elite were involved, the Court could not do what it is doing.
Also during this past term, the Court majority struck down, on First Amendment grounds, a federal statute which required cable television operators who leased access to channels to others to segregate on a single channel patently offensive depictions of sexual activities or organs. The operator had to block that channel from viewer access and to unblock it only upon a subscriber’s written request. The Court found this speech-restrictive, continuing its transformation of the First Amendment as a guarantee of the free exchange of ideas to a guarantee of individual self-gratification.
In a pair of cases, the Court found that normal patronage by government violated, of all things, the First Amendment. A company was removed from the list of available companies to perform towing services for a city, allegedly because the owner had supported the mayor’s opponent in a reelection campaign. Another city terminated a trash hauler’s at-will contract, allegedly because the hauler had been an outspoken critic of the Board of County Commissioners. Such practices are as old as the nation and are regulated by innumerable statutes, but the Court suddenly elevated patronage to the level of a First Amendment violation.
Not one of these five decisions bears any resemblance to the actual Constitution. There is no question of a mistake being made. The Justices know full well what they are doing, which means that Scalia and Thomas are right: a majority of Justices have decided to rule us without any warrant in law. If there is an actual Constitution it can only be the set of principles those who made the Constitution law understood themselves to be ordaining.
The idea that the Constitution should be interpreted according to that original understanding has been made to seem an extreme position. That is convenient for those who want results democracy will not give them, but the truth is that violation of original understanding ought to be the extreme position. Would it be legitimate for a judge in the United Kingdom, which has no constitution comparable to ours, to strike down an act of Parliament on the ground he did not like it? Obviously not. But a U.S. judge who goes beyond the Constitution behaves like the hypothetical U.K. judge. Democratic theory requires that a judge set the majority’s desires at naught only in accordance with a superior law”in our case, the written Constitution. A judge who departs from the Constitution, as the majority did in the five cases mentioned, is applying no law other than his will. Our country is being radically altered, step by step, by Justices who are not following any law.
This is not entirely new. During the nineteenth century, the Court often made up its own Constitution, most notoriously in the 1857 decision in Dred Scott v. Sandford . Chief Justice Roger Taney’s opinion for the Court found a constitutional right, good against the federal government, to own slaves. But it wasn’t until this century, when the Court invented the theory that the Bill of Rights limited states as well as the federal government, that the opportunities for judicial government exploded. The First Amendment speech clause has been made a guarantor of moral chaos, while its religion clauses have been reshaped to banish religious symbolism from public life. The Court invented a right of privacy and used it to create a wholly specious right to abortion. The list of such incursions into the legitimate sphere of democratic control goes on and on.
Lower courts, state and federal, catch the fever. Hawaii’s Supreme Court is about to make marriage between homosexuals a constitutional right. Connecticut’s court has ruled that racial imbalance in public schools violates the state constitution even though the imbalance is a result of residential patterns and not the product of any government action. Two federal courts of appeals have invented a constitutional right to assisted suicide, and one court is apparently willing to extend the right to euthanasia. God knows what will come next.
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. Even in the depths of the Warren Court era some of us thought that the Court’s performance, though profoundly illegitimate, could be brought within the range of the minimally acceptable by logical persuasion or the appointment of more responsible judges, or both. We now know that was an illusion. A Court majority is impervious to arguments about its proper behavior. It seems safe to say that, as our institutional arrangements now stand, the Court can never be made a legitimate element of a basically democratic polity.
Republican Presidents have used the nomination process in an effort to change the direction of the Court with almost zero results on the major issues. After twelve years of Presidents Reagan and Bush, each of whom made a determined effort to appoint Justices who would abide by the Constitution as originally understood, we seem farther than ever from a restrained Court. Between them, Reagan and Bush had five appointments. Only two try to relate their decisions to the Constitution as the men who wrote, proposed, and ratified it understood it. A majority of the Justices has become more arrogantly authoritarian than ever.
The illegitimacy of the Court’s departures from the Constitution is underscored by the fact that no Justice has ever attempted a justification of the practice. At most, opinions have offered, as if it solved something, the observation that the Court has never felt its power confined to the intended meaning of the Constitution. True enough, but a long habit of abuse of authority does not make the abuse legitimate. That is particularly so when the representative branches of government have no effective way of resisting the Court’s depredations.
Viewing the carnage created by the Court, George Will referred to the Justices as our robed masters. When the VMI decision came down, my wife said the Justices were behaving like a band of outlaws. Neither of those appellations is in the least bit extreme. The Justices are our masters in a way that no President, Congressman, governor, or other elected official is. They order our lives and we have no recourse, no means of resisting, no means of altering their ukases. They are indeed robed masters. But band of outlaws? An outlaw is a person who coerces others without warrant in law. That is precisely what a majority of the present Supreme Court does. That is, given the opportunity, what the Supreme Court has always done.
The astonishing thing is that anybody is surprised at this. Without realizing quite what they were doing, generations of Americans have accorded all courts, and most especially the Supreme Court, unchecked power. We ought to have known what would inevitably happen. Lord Acton’s famous aphorism about power corrupting turns out to be right: Given unchecked power, most human beings, even those in robes, will abuse that power.
Only a change in our institutional arrangements can halt the transformation of our society and culture by judges. Decisions of courts might be made subject to modification or reversal by majority vote of the Senate and the House of Representatives. Alternatively, courts might be deprived of the power of constitutional review. Either of those solutions would require a constitutional amendment. Perhaps an elected official will one day simply refuse to comply with a Supreme Court decision.
That suggestion will be regarded as shocking, but it should not be. To the objection that a 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. The Taney Court that decided Dred Scott might well have decided, if the issue had been presented to it, that the South had a constitutional right to secede. Would Lincoln have been wrong to defy the Court’s order and continue the Civil War? Some members of the Supreme Court were edging towards judging the constitutionality of the war in Vietnam. Surely, we do not want the Court to control every major decision and leave only the minutiae for democratic government.
The truth, however, is that I must end on a pessimistic note. The Court will not be reformed by persuasion or by changes in its membership. But the public appears supine, willing to watch democracy slip away. Can public apathy ratify what the Court is doing? Not in our constitutional tradition, it can’t. If a real constitutional right of one person is being violated with the unanimous approval of the rest of the United States, we have always held that the right must be vindicated regardless. Under our Constitution, each of us has a right to representative government and no amount or length of majority inertia can legitimate what the Court is doing to that right.
Robert H. Bork is the John M. Olin Scholar in Legal Studies at the American Enterprise Institute and author of The Tempting of America: The Political Seduction of the Law. His latest book is Slouching Towards Gomorrah: Modern Liberalism and American Decline (Regan Books/HarperCollins).
A Crisis of Legitimacy
In Planned Parenthood v. Casey (1992), the Supreme Court made abortion the benchmark of its own legitimacy, and indeed the token of the American political covenant. To those who cannot agree with the proposition that individuals have a moral or constitutional right to kill the unborn, or that such a right defines the trans-generational covenant of the American political order, the Court urged acceptance out of respect for the rule of law. If the Court’s legitimacy should be undermined, the Court declared, then so would the country be in its very ability to see itself through its constitutional ideals.
If the Court does not claim to act merely in its own name, but for the common good and the rule of law, how then should citizens regard the effort to link abortion with the legitimacy of the Court itself and thus, it would seem, with the legitimacy of our current political regime? We could put this in a different way by asking whether the Court”in laying down rules without authority to do so and then asking for obedience in the name of the common good”has acted ultra vires , beyond its constitutionally assigned powers. If so, its commands are not legitimate. The rule of law prohibits reallocation of shares of authority without the consent of the governed. Since the political common good depends on no branch of government taking more than its share of authority, obedience should not be given to an act that violates the foundation of the rule of law.
So put, we have only stated a principle. Does it apply to the actions of this Court? It seems to me that the situation is ambiguous and admits no clear answer. There is no doubt but we live today under an altered constitutional regime, where the rules are no longer supplied by a written document but by federal courts defining the powers of government ad hoc, through their own case law. This profound change from our previous order of government is often hidden by political and judicial rhetoric that gives honor to and even cites the written Constitution; yet, in contemporary theory and in practice, the document is really an authoritative occasion for, rather than a norm of, judicial interpretation. The changes have been further obscured by the fact that the new regime was not ratified by amendment or constitutional convention.
But this profound and confusing change does not necessarily make the new constitutional order illegitimate”at least not in the sense we are exploring here. It is plausible to argue that this new regime evolved over time with the tacit consent of the governed. Operationally speaking, every sector of government has acquiesced in the Court’s understanding of its own powers and the powers of rival authorities. Though the elected representatives of the people may complain about particular judicial rulings and try to influence those rulings through judicial appointments and party platforms, none challenge the authority of the ruling principle itself. Our elected representatives do not merely comply with, but obey, the Court’s understanding of the constitutional order, and they have tendered obedience for fifty years.
Thus, when the Court in Casey asks that its case law be given the obedience due to the Constitution, and when it insists that, above all, it must remain loyal to its own recently established precedents, it makes a reasonable request within the context of the new constitutional regime. In this new regime, judicial interpretation rules the text, according to the Court’s perception of the common good and the changing needs of the polity. It can be pointed out that this is a reckless kind of polity”allowing the Court to define the nature and scope of political power on an ad hoc basis, without benefit of the debates of a legislative assembly or a constitutional convention, and without the contest of facts typical of an ordinary trial court. One would be very surprised indeed were it not to engender great injustices. For all of that, however, the Court does not necessarily act ultra vires.
But the issue of legitimacy can be examined from another point of view. Citizens can have a duty not to obey a law if it seriously injures the common good. And were such laws propounded as essential features of the constitutional order itself”which is to say, propounded as laws governing the making of any other laws”then we could reasonably ask about the legitimacy of that regime. Bearing in mind that we are speaking not of isolated statutes, but of authoritative renderings of the fundamental law, such laws would be laws (1) that deny protection to the weak and the vulnerable, especially in matters of life and death, and (2) that systematically remove the legal and political ability of the people to redress the situation. A polity that creates and upholds such laws is unworthy of loyalty.
The first thing to realize about our new regime is that the abortion right is not a unique or isolated feature of contemporary jurisprudence. The Court’s own case law shows that in order to maintain the abortion right at the level of fundamental law, many other sectors of the states’ legal order, at both statutory and common law, need to be altered: family law, marriage law, laws regulating the medical profession, and, as we now see with the recent circuit court decisions, criminal laws prohibiting private use of lethal force. The principle of Casey cannot leave the other institutions of the polity unaffected. Moreover, the Court’s own case law shows that it is impossible to disempower political opponents of abortion without going on to disempower them politically on other issues as well. What is one’s place in a political regime that regards abortion as defining of the constitutional covenant, that expands the principle to other institutions of both private and public law, and that politically disempowers opponents?
Three decisions reached by federal courts this past spring reveal a pattern of fact that will allow us to take a broader view of the situation. These decisions exemplify both the inherently expansive nature of the new regime’s abortion jurisprudence as well as its disempowerment of political opponents.
By statewide referendum in 1991, voters in the state of Washington had reaffirmed the provision of the criminal code that outlawed persons in its jurisdiction from knowingly causing or aiding other persons in ending their lives. On March 6, 1996, the Ninth Circuit Court of Appeals ruled in Compassion in Dying v. Washington that the state of Washington is constitutionally powerless to prohibit physicians (its own licensees) from using lethal force to assist suicides. Seizing upon the infamous dictum of the abortion decision in Casey -At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”Judge Stephen Reinhardt not only posited a right to die, but also deemed the state’s legislative motive cruel: Not only is the state’s interest in preventing such individuals from hastening their deaths of comparatively little weight, but its insistence on frustrating their wishes seems cruel indeed.
Meanwhile, in New York, the Second Circuit Court of Appeals ruled in Quill v. Vacco that while there is no historic right to die, the state of New York violates the equal protection clause of the Fourteenth Amendment with its prohibition of assisting suicide. By permitting patients to refuse treatment at the end of life, but not allowing physician-assisted suicide, the state unfairly treats similarly situated persons. The court brushed aside the distinction between letting die and killing. Although it was claimed in the press that the Second Circuit’s opinion was more moderate because it did not posit a right to die, both decisions reach the same result from the same principle.
Not surprisingly, in New York that principle was also the dictum in Casey. Judge Miner, writing for the majority in the Second Circuit, asked: What concern prompts the state to interfere with a mentally competent patient’s right to define [his] own concept of existence, of meaning, of the universe, and of the mystery of human life,’ when the patient seeks to have drugs prescribed to end life during the final stages of a terminal illness? Miner answers, None. In other words, given two patients, each of whom can define the meaning of the universe, the state of New York violates equal protection when it allows the one to define himself by having treatment withdrawn while it forbids the other to define himself by requesting that a physician assist his suicide.
The third decision concerned a 1992 statewide referendum in which the voters in Colorado adopted an amendment, known as Amendment 2, to their constitution prohibiting laws that make homosexual orientation, conduct, and relationships the bases of special entitlements to minority status, quota preferences, and claims to discrimination. On May 20, 1996, in Romer v. Evans , the Supreme Court ruled that the amendment is totally without a rational basis, and is born of animosity toward the class of persons affected. The Court declined to say whether its decision silently overturns Bowers v. Hardwick (1986), which upheld the state of Georgia’s anti-sodomy law. Yet if Colorado’s amendment has no basis other than animosity toward homosexuals, it is difficult to understand what rational grounds might exist for anti-sodomy laws, or, for that matter, laws restricting marriage to man and woman.
These decisions have two things in common. First, they expand individual liberty against traditional morals legislation. And second, they impugn the motives of legislators, which the Ninth Circuit found cruel and the Supreme Court found hateful. This is the pattern that we need to notice if we are to understand the legal and political mind of the new regime. This pattern did not begin, however, with the decisions of this past spring.
Earlier in the century the Court aggressively protected individual rights of contract against the democratic process in the states. But after World War II, the Court began to insert itself into what James Madison called the internal objects of state governments, particularly the culture-forming institutions, including education, religion, marriage, and government’s domestic control over matters of life and death. Reasoning that the people do not wish these things to be left to the ordinary legislative process, the Court incrementally created individual rights as immunities from the political ordering of these internal objects.
The Court’s religion jurisprudence was especially important, and indeed was a kind of seedbed for the new regime. In 1947, the Court ruled that the establishment clause must be applied against the states, and that no establishment means no promotion of religion. In 1948, John Courtney Murray called the new religion jurisprudence rigid, ruthless, sweeping, and insisted that the Court’s doctrine cannot be approved by the civic conscience (in an essay first printed in First Things , October 1992). Murray was correct about the sweeping nature of the new doctrine; over the course of twenty years, religion was removed, bit by bit, from the civic order of state polities. Murray, however, did not live to see the next step. In 1971, nonestablishment came to mean that legislation could have no religious purposes, even when the immediate matter and effect of the legislation is secular. Justice O’Connor would later add that such secular purposes must even be sincere.
Thus, the Court prohibited public events which had been practiced in every jurisdiction since the founding of the nation. Then, to sustain its reasoning in the face of new litigation, the Court found itself having to bring ever new objects under its scrutiny, such as moments of silence and abstinence education. Indeed, Justice Kennedy recently has gone so far as to maintain that the belief that there is an ethic and a morality which transcend human invention is itself religious. Ultimately, the Court had to interrogate the subjective motivations of legislators in order to detect the presence or absence of religion.
In a separate line of jurisprudence, the Court moved on to issues of sex, marriage, and abortion. In hindsight, we see that the new lifestyle rights were inherently expansive. In Griswold v. Connecticut (1965), the new right of privacy was meant to protect marriage, and was justified by reference to the traditions and conscience of the people. In Eisenstadt (1972), however, the privacy right was expanded to cover any reproductive decision made by individuals. In Roe (1973), it included elective abortion. In Carey (1977), it included the right of teenagers to have access to contraceptives. In Casey , it mushroomed into an all-purpose right to define the meaning of the universe. The circuit courts now insist that it includes the liberty to contract a physician to assist one’s death. What began as a judicial effort to stretch the Constitution to make it better reflect the traditions and conscience of the people quickly became the opposite”it became a reason for constitutionally invaliding those very traditions as the ground for public policies and laws.
This line of jurisprudence, for a time, steered clear of the motivational analysis used in religion cases. To be sure, the issue of religious motivations would, from time to time, emerge in a concurring or dissenting opinion, when members of the Court would speculate that state governments have no authentic secular purpose for laws restricting sexual conduct.
These two lines of jurisprudence have begun to coalesce. Judge Reinhardt of the Ninth Circuit acknowledges that judicial acceptance of physician-assisted suicide would cause great distress to people with strong moral or religious convictions. The or is interesting, especially in the light of Justice Kennedy’s virtual equation of religion with any ethics thought to transcend human invention. Reinhardt warns, They are not free, however, to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted, and agonizing deaths. Laws prohibiting physician-assisted suicide, he concludes, do injury to some citizens for no other reason than to satisfy the moral or religious precepts of a portion of the population. On this view, legislation informed by religion or by traditional morality expresses a malicious desire by some citizens to apply power against other citizens.
In this light, we can begin to understand the Court’s decision in the case of Colorado’s Amendment 2. Although in Romer v. Evans Justice Kennedy does not venture an opinion about the religious nature of animus against homosexuals, his decision depends heavily upon the attribution of motives. Laws of the kind now before us, he writes, raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. If the constitutional conception of equal protection of the laws’ means anything, he continues, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. In other words, individual liberty is defined not merely by the kind of act or decision that one is free to engage, but by immunity from a certain kind of motive or purpose on the part of the legislator.
This analysis of animus has been linked to equal protection before. In Bray v. Alexandria Women’s Clinic (1993), the Court examined whether anti-abortion demonstrators could be held liable”under the Ku Klux Klan act of 1871 (amended in 1985)”of conspiring to deprive women of the equal protection of the laws by depriving women seeking abortions of their right to interstate travel. The Bray case is unlike Romer in dealing with private citizens’ animus against a class. The two can be seen together, however, insofar as the definition of discriminatory purpose holds for both public or private agents. Discriminatory purpose, as defined in Bray , implies that the agent selects or reaffirms a particular course of action in part because of and not merely in spite of its adverse effects upon an identifiable group.
In Bray , it was proposed that women qualify as precisely such an identifiable group. Justice O’Connor reasoned that the law must reach conspiracies whose motivation is directly related to characteristics unique to women. These characteristics are defined as their ability to become pregnant and by their ability to terminate their pregnancies. For his part, Justice Stevens wrote, When such an animus defends itself as opposition to conduct that a given class engages in exclusively or predominantly, we can readily unmask it as the intent to discriminate against the class itself.
The proposition that pro-life demonstrators are liable for such discrimination was defeated in Bray by a single vote”Justice White was still on the bench. For our purpose, however, it is important to note the strong analogy to what the Court now accuses Coloradans of doing in adopting Amendment 2. When Justice Kennedy asserts that there is no rational basis for the amendment, and that the inevitable inference is that the action is born of animosity toward the class of persons affected, he is saying, in judicial terms of art, that the amendment was adopted because of and not merely in spite of its adverse effects upon an identifiable group. It is true, of course, that women have a federal right to have abortions, while homosexuals do not (as yet) have a federal right to perform acts of sodomy. But the animus analysis reaches the same result, for a class is allegedly picked out and bullied in violation of the equal protection clause; whether the class is entitled to special judicial protection doesn’t matter if the legislators or voters can be ascertained to have a suspect motive.
In sum, the political ability of the people to address legislatively common concerns in the terms of traditional morality must pass through a gauntlet of judge-made law in this new regime. If not disqualified on grounds of religion, legislation and other forms of public business may be disqualified on grounds of insufficiently secular motivation. And if not knocked down for that reason, it may be disqualified for failure to comport with what Gerard Bradley has called the mega”right of self-mystery definition posited in Casey (a right that now moves by analogy into physician”assisted suicide). And if not disqualified because of that, then it may be disqualified on grounds of motive to do injury, to discriminate, or to deny to persons equal protection of the laws.
These disqualifiers have been used alone and in concert to place public expressions of traditional morality outside the new political order. In fact, the Court may not need to invent a constitutionally protected right to die or to commit sodomy. Its current repertoire of nullification tests and devices are already sufficient to knock down prohibitory legislation on religious and equal protection grounds.
While it allows individuals to be self-governing, the federal judiciary’s new constitutional order radically undercuts their ability to be self-governing in the political sense of the term. It excludes from the political process the objects of mutual deliberation that make political order desirable, indeed even possible. Desirable, because the culture-forming institutions of society cannot be sustained without common effort; there would be no need for politics were there not some important goods that require the deliberation, direction, and authority of the community. Possible, because once private individuals are allowed rights to use lethal force for vindicating justice in their own cause (as in abortion or euthanasia), it is difficult to see how even the most rudimentary foundations of the older political society”those that reserve the use of lethal force to public authority”still remain.
The new constitutional regime is a very bad regime. It withdraws protection from the weak and vulnerable, allowing the strong to define the status and rights of the weak; it privatizes matters which, in any legitimate political order, must be public in nature; it sets innumerable roadblocks to the rectification of the problem through mutual deliberation of citizens in legislative assemblies; and it has made what used to be its most loyal citizens”religious believers”enemies of the common good whenever their convictions touch upon public things. In 1994, the Court not only allowed the Racketeer Influenced and Corrupt Organizations (RICO) statutes to be applied against anti-abortion demonstrators, putting them in the same category with mobsters, but also allowed to stand a Florida law restricting the speech of pro-life, but not pro-choice, demonstrators in the vicinity of abortion clinics.
Unless the new constitutional order is profoundly reformed, citizens of rightly formed conscience will find themselves in a crisis. Insofar as private citizens have given tacit consent to the new regime, and thus allowed it to speak in their name, they face an unavoidable moral crisis. But the crisis falls even more immediately and heavily upon public officials, for the new regime orders them to do what they ought not to do, and not to do what they ought to do. They are ordered not to regard the unborn as having moral rights, and not to take those steps otherwise available to their offices to protect and remedy the injustices against that class of persons. Soon, the same will be true with respect to the dying and infirm. Moreover, legislative, executive, and judicial officers in the states are ordered by the Court to prevent the application of laws and policies of citizens on no other ground than the citizen’s moral or religious motivations.
It is late in the day, and our options have dwindled. Either right-minded citizens will have to disobey orders or perhaps relinquish offices of public authority, or the new constitutional rulers will have to be challenged and reformed. The first option leads inevitably either to withdrawal from politics or to civil disobedience. Since there is still a window of opportunity with regard to the second option, it would seem to be the responsible course. In order to adopt it, we must take three steps.
First, the people through their elected officials must withdraw whatever tacit consent has been given to the new constitutional order. Because the new regime was not erected by any ordinary process of amendment, referendum, or ratification, in principle the people still may alter it through their elected representatives. Perhaps the U.S. Congress will be able to invoke its powers under section five of the Fourteenth Amendment; perhaps Congress can use its powers under Article III to alter the Court’s appellate jurisdiction. How this might be done must urgently be studied by those having experience and expertise in the actual institutions of government.
Second, issues like abortion, euthanasia, and gay marriage should not be treated as isolated from the broader constitutional crisis. Those who would try to play within the game imposed by the Court, in the hope of incrementally improving the situation issue-by-issue, actually deepen rather than mitigate the authority of the new order. Indeed, it tends to confirm the suspicion that citizens who hold conservative opinions about morals and religion lurch from issue to issue, trying to use the public order merely to win a point, if not to punish those who believe otherwise. Particular issues therefore need to be advanced for the purpose of prompting a constitutional crisis; and prompting the constitutional crisis is the responsible thing to do.
Third, of all the features of the new regime, the one that must be tackled first is the Court’s motivational analysis, which first emerged in connection with religion, but which now spreads to other matters of legislation informed by substantive moral purposes. In effect, the Court makes it impossible to have anything other than a procedural common good as a motive or purpose for political activity. There is a real possibility that the moral and religious motivations of some citizens will become not only actionable at public law, through constitutional suits challenging legislation informed by such motives, but also actionable at private law. Unless the elected representatives of the people can compel the Court to refrain from invalidating political activity merely on the basis of the citizens’ moral or religious motivation, the task of reform is blocked. Should that continue, the option remaining to right reason is the one traditionally used against despotic rule: civil disobedience.
Russell Hittinger is the Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa.
A Culture Corrupted
We were taping, early in May, a program for public television dealing with same-sex marriage. Opposite me was a professor of law, openly gay, who had just written a book in favor of gay marriage. The question before us was whether the states would be obliged to honor the marriage of homosexual couples if the courts in Hawaii delivered to the country that unsolicited gift. After all, the states bore a residual authority to object, on moral grounds, to certain kinds of marriages”as in the case, for example, of incestuous unions. But with the same claims to residual authority, some states in the past had objected on moral grounds to interracial marriages. That ground of objection had been removed from the states as soon as the courts became clear that policies of that kind were in conflict with the deeper principles of the Constitution. The question then was whether the Supreme Court was about to do the same thing in relation to gay marriage with the decision, then pending, in Romer v. Evans : The case was not about gay marriage, but it could undercut the authority of a state to withhold any privilege or franchise from people on account of their homosexuality. When the question was posed, the professor reacted with a blank stare. Of Romer and its implications”and its connection to gay marriage”he professed to know nothing.
No more than a fortnight after the decision was handed down in Romer v. Evans , the same professor was in print, in the New Republic , not only aware of the connection, but quite emphatic now in his opinion: Romer v. Evans would in fact call into question the authority of a state in refusing to honor gay marriages. And indeed, as he suggested, it would call into question the power of the Congress to act now, with the Defense of Marriage Act, in seeking merely to preserve, for the states, their freedom to refuse.
That Romer should have any bearing of this kind on the law of marriage is still barely understood even by people who make their living by following public affairs. That the decision could have vast, unsettling effects on our law”that it could be used as a powerful lever in changing the professions, the universities, and the cast of our private lives”is well beyond the imagining of a public that does not spend its days absorbed in the life of the courts. And of course the media have taken care to shelter the public from any account in these matters that may be too precise or jolting for the public to hear.
There should be, by now, nothing startling in this pattern, for it has marked the ways of our courts and our politics over the past thirty years. The judges form a virtual concert to advance the interests of gay rights and other parts of the liberal agenda, and those who would resist these initiatives, even with the most modest measures, are branded as the aggressors and the zealots. Whether the issue has been abortion, or euthanasia, or gay rights, the courts have taken steps that were noticeable even at the time as novel and portentous. But these moves seemed to have struck no chord, no moral or religious nerve, running through the broad public. All of which must make us wonder whether we are indeed in post-Christian or post-religious America. But if these events have not set off alarms, it is even less likely that people would be sensitive to that subtler shift of power that runs to the root of the American regime itself: In one issue after another touching the moral ground of our common life, the power to legislate has been withdrawn from the people themselves, or the consent of the governed, and transferred by the judges to their own hands. And on this point, there has been no example more striking than the recent run of cases on gay rights.
In November 1992, the voters of Colorado, in a referendum, foreclosed to legislatures at all levels the authority to treat gays and lesbians on the same plane as groups that have suffered discrimination based on race, religion, and gender. In effect, the amendment to their constitution (Amendment 2) would have removed from legislatures the authority to pass statutes that barred discriminations based on sexual orientation. Those statutes provided a club for the law in meting out public humiliations for people who hold moral and religious objections to homosexuality. In one telling case, the wife of a shopowner in Boulder, Colorado had given a pamphlet on homosexuality to a gay employee. For that offense, she was charged under the local ordinance on gay rights, and compelled to enter a program of compulsory counseling.
We will hear, no doubt, many different accounts of Amendment 2 in Colorado, but I would offer this construction: The Amendment merely sought to preserve for people, in their private settings, the freedom to honor their own moral understandings on the matter of homosexuality. The Amendment licensed no criminal prosecutions directed at gays or lesbians, and it withdrew from homosexuals no protections of the law. Still, the Court overturned this move by the people of Colorado, acting in their sovereign capacity, to shape their fundamental law. Ten years earlier, in Bowers v. Hardwick , the Court had upheld the power of a state to make sodomy a crime; but now, as Justice Scalia pointed out, the Court was willing to strike down a law merely for disfavoring homosexual conduct. And in the sweep of its judgment, the Court produced a decision that could be read by activists among the judges to encompass this principle: that it would now be immanently suspect on constitutional grounds to plant, anywhere in the laws, a policy that casts an adverse judgment on homosexuality, or accords to homosexuality a lesser standing or legitimacy than the sexuality imprinted in our natures. Armed with this decision, judges throughout the country would be able to tie up, or overturn, any statute in a state that refused to recognize gay marriage.
During the hearings on the Defense of Marriage Act, Representative Pat Schroeder (D-Col.) declared that the issue of gay marriage involved simply our willingness to honor, with equal respect, the love we encounter in all couples. And yet, as others were quick to point out, no one doubts the love of men for men, or women for women, just as no one doubts that there may be abiding relations of love between brothers and sisters, or grandparents and grandchildren. But those loves cannot be diminished as loves because they are not attended by penetration or expressed in marriage. Marriage is not needed to mark the presence of love, but a marriage marks something matchless in a framework for the begetting and nurturance of children. It means that a child enters the world in a framework of lawfulness, with parents who are committed to her care and nurturance for the same reason that they are committed to each other.
But that is to say there is a connection, long understood, between marriage and what may be called the natural teleology of the body”the inescapable fact that only two people, not three, only a man and a woman, can beget a child. As Michael Uhlmann has remarked, it becomes impossible finally to talk about marriage without using that N-word, nature, and without talking about the sexuality imprinted in our gendered existence: Male and female created He them. There is a purpose plainly marked in the fact that we are born man and woman, and it was once understood that this purpose found its expression in marriage as a blending of nature and law. If marriage were entirely a matter of law, then the positive law could prescribe virtually anything as a marriage: Brothers then might marry sisters”or brothers; they might even marry their household pets. Or, they might marry more than one person. If marriage is detached from that natural teleology of the body, on what ground of principle could the law rule out the people who profess that their own love is not confined to a coupling of two, but woven together in a larger ense