America's democratic experiment has been remarkably successful. Constitutional democracy in the United States has survived a civil war, a great depression, and two world wars. Our nation has assimilated into the mainstream of American life generations of immigrants—many fleeing poverty and oppression in their native lands. We have made tremendous strides towards overcoming a tragic legacy of slavery and racial segregation. We have secured safer conditions for working people and a meaningful social safety net for the most disadvantaged among us. We have demonstrated that citizens of different religious faiths can live and work together in peace and mutual respect. America's economic prosperity has made our nation the envy of the world. Oppressed peoples around the globe look to our Declaration of Independence for inspiration and our Constitution as a model of free government. In the great ideological struggles of the twentieth century, American ideals of personal, political, and economic freedom have triumphed over fascist and communist tyranny. Two cheers for American democracy!
Why not three?
In his encyclical Evangelium Vitae (1995), Pope John Paul II reminds us that “fundamentally democracy is a ‘system' and as such is a means and not an end. Its ‘moral value' is not automatic, but depends on conformity to the moral law to which it, like every other form of human behavior, must be subject.” This doctrine of the necessary conformity of civil law to moral truth long predates the rise of modern democracy. It is present in both Plato and Aristotle, and was given careful, systematic expression by St. Thomas Aquinas. It has been a central feature of the tradition of papal social teaching.
As applied to modern democracy, the idea is that the moral legitimacy of a law or public policy cannot be established merely by showing that it was put into place through the workings of democratic institutions. It is true, as the Pope affirms, that democracy is uniquely valuable because it embodies more fully than any alternative system the principle of the fundamental moral equality of citizens. For this reason, the Pope says that the “almost universal consensus with regard to the value of democracy . . . is to be considered a positive ‘sign of the times,' as the Church's magisterium has frequently noted.” Nevertheless, even a democratic regime may compromise its legitimacy and forfeit its right to the allegiance of its citizens.
This happens when the institutions of a democracy are manipulated so that “‘right' ceases to be such, because it is no longer firmly founded on the inviolable dignity of the person. . . . In this way, democracy, contradicting its own principles, effectively moves towards a form of totalitarianism.” In such an event, democratic institutions become mechanisms of injustice and oppression, thus defying the moral law to which they, like all human institutions and actions, are subject. As Pope John XXIII wrote in his encyclical Pacem in Terris (1963), “Any government which refused to recognize human rights, or acted in violation of them, would not only fail in its duty; its decrees would be wholly lacking in binding force.”
These are no mere sectarian teachings. Belief that laws and the regimes that make and enforce them must be evaluated by reference to universal standards of justice is shared by people of different faiths and of no particular faith. It is the premise of any serious conception of human rights. And few people who are serious about human rights are naive enough to believe that democratic institutions can never be used to violate human rights. Indeed, a central justification for judicial review of legislation is to provide a check against the possibility that more democratically responsive institutions of government will disregard constitutional guarantees and tread upon people's fundamental rights.
One of the saddest lessons of American history, however, is that courts exercising the power to invalidate legislation as unconstitutional can themselves trample upon fundamental rights, and, indeed, can do so precisely in the name of protecting such rights. This happened, for example, when the Supreme Court of the United States, in a ruling that helped to precipitate the Civil War, held in Dred Scott v. Sandford that blacks were noncitizens—and, for all practical purposes, nonpersons—possessed of no rights that white people must respect. In our own time, the Supreme Court, in Roe v. Wade, struck down the abortion laws of all fifty states, effectively wiping out all legal protection of unborn human beings against being killed upon the request of their mothers. Most recently, federal courts of appeal for the Second and Ninth Circuits—the latter court relying explicitly on the abortion jurisprudence of Roe and its progeny—have invalidated laws prohibiting physician-assisted suicide in New York and California.
A familiar and important argument against the “judicial activism” on display in these cases is that such decisions constitute the judicial usurpation of legislative authority. This argument highlights the antidemocratic character of the decisions. It prescinds, however, from the substance of the moral questions involved—the rightness or wrongness of slavery or legalized abortion and euthanasia as a matter of public policy. Justice Antonin Scalia, perhaps the leading exponent of this criticism, emphasizes the purely procedural quality of the argument by declaring abortion, for example, to be a matter entirely outside the purview of constitutional law and, therefore, beyond the jurisdiction of courts.
In criticizing Roe, Scalia argues that the Constitution, properly interpreted, leaves the people of the states free to legislate against abortion. In a noteworthy address at the Gregorian Pontifical University in Rome, however, he recently declared that by the same token, “if the people want abortion, the state should permit abortion in a democracy.” While the Justice made clear his own preference for pro-life public policies, he argued that in itself democracy is neutral as between competing positions on issues such as abortion and euthanasia. “I do not know how you can argue on the basis of democratic theory,” he said, “that the government has a moral obligation to do something that is opposed by the people.” Responding to a questioner who raised the issue of the rights of minorities, Scalia declared that “the whole theory of democracy, my dear fellow, is that the majority rules; that is the whole theory of it. You protect minorities only because the majority determines that there are certain minority positions that deserve protection.”
The Pope's argument in Evangelium Vitae, by contrast, highlights the sense in which the abandonment of the unborn to abortion and the infirm to euthanasia betrays the substantive principle of equal worth and dignity that is the moral linchpin of democracy. Any regime, including a democratic one, degenerates into what the Pope calls a “tyrant state” when its law exposes the weakest and most vulnerable members of the community—those most in need of the law's protection—to private lethal violence or other forms of oppression. The dark irony of American constitutional democracy is that our judges—whose special responsibility it is to preserve the core democratic principle of equality before the law—are the ones whose edicts have betrayed this principle. When considered in light of the substantive moral basis of democratic governance, Roe v. Wade and similar decisions stand out as “undemocratic” in a far more radical sense than the one Justice Scalia has in mind.
If the moral law is anything like what Christians and Jews have long supposed it to be, then there are profoundly important respects in which the institutions of American democracy—particularly the courts—have made themselves its enemy. Mary Ann Glendon has observed that the abortion license manufactured in Roe and upheld in Planned Parenthood v. Casey is more sweeping than that of any other democratic nation on the face of the earth. “No other democracy,” she remarks, “is so careless of the value of human life.” Predictably, the legalization of abortion is paving the way to assisted suicide and euthanasia. The decisions of the Second and Ninth Circuit Courts will give the Supreme Court an opportunity to declare that the right “to define one's own concept of existence, of meaning, the universe, and the mystery of human life,” to which it appealed in upholding the abortion license in Casey, includes the right to kill yourself, to a physician's assistance in killing yourself, and to someone else's “substituted judgment” that you should be killed when you are too infirm to decide for yourself.
What are serious Jews, Christians, and other pro-life citizens to say about such laws and the institutions that bring them into being? In Evangelium Vitae, John Paul II teaches that “laws which authorize and promote abortion and euthanasia are radically opposed not only to the good of the individual but also to the common good; as such they are completely lacking in juridical validity.” The Pope is not here making a claim about the technical status of such laws within the legal systems of the countries that have them. He is, rather, concerned with their moral force, that is to say, their capacity objectively to bind the conscience of citizens. “A civil law authorizing abortion or euthanasia,” he declares, “ceases by that very fact to be a true, morally binding law.”
Abortion and euthanasia are crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection.
Plainly, the Pope's teaching is a firm rebuke to those who claim to be “personally opposed” to abortion and euthanasia but who act to advance these evils in the public sphere. “In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia,” the Pope says, “it is . . . never licit to obey it, or to take part in a propaganda campaign in favor of such a law, or vote for it.” But the Pope's call for disobedience and conscientious objection goes beyond even the condemnation of the craven “personally opposed, but pro-choice” position. His teaching is directed not merely to those who would join the ranks of Mario Cuomo, Bill Clinton, and Father Robert Drinan, but to all of us. We are, the Pope says, in the midst of a great conflict between “the culture of life” and “the culture of death”: “We are all involved and we all share in it, with the inescapable responsibility of choosing to be unconditionally pro-life.”
When Evangelium Vitae was issued, the Pope's warning that ours is becoming a “culture of death” grabbed the headlines—and rightly so. An equally important aspect of his teaching, however, received less publicity. This was the Pope's call for all of us to “live the Gospel of Life.” The Pope emphasizes again and again that this is a call to action. All of us must give witness to the sanctity of human life, not merely by personally refraining from abortion and euthanasia, but by working in various spheres—including the political sphere—to overcome these “crimes against life” and create a new “culture of life.”
For some, this will mean making financial sacrifices to support the pro-life cause in its various dimensions. For others, it will mean volunteering to assist in the critical work of pro-life pregnancy centers and hospices. For still others, it will mean working in the educational, legal, and political realms to reverse the judicial decisions and legislative and executive acts that have ushered in the “culture of death.” For all who believe in a God of love, justice, and mercy, it will mean constant prayer not only for the victims of the “culture of death,” but also for those who are joined in the great struggle on their behalf, and, indeed, for those misguided souls who, by political action or by personal involvement in the killing of the unborn or infirm, have made themselves their oppressors.
To all who work in shaping public policy, the Pope directs a special plea to make a concern for the health of the family “the basis and driving force of all social policies.” In this vein, he says, it is essential to resist “the trivialization of sexuality,” which is “among the principal factors which has led to contempt for new life.” Moreover, the Pope calls for greater support for adoption as a true pro-life alternative to abortion. Here, one is reminded of the profound witness of Mother Teresa at the National Prayer Breakfast in February of 1994: “Please do not kill the child. I want the child. Please give me the child. I am willing to accept any child who would be aborted.” Those of us who would resist the culture of death must join our voices with hers. For us, and the society we must strive to create, there can be no such thing as an “unwanted” child.
Does the Pope not, however, call for even more? How are we to understand his teaching that resistance to the “culture of death” demands “disobedience” and even “conscientious objection” to unjust laws? Laws that authorize the killing of the unborn or infirm are permissive in form. They license and sometimes encourage private killing, but do not positively command it. (This is what enables supporters of abortion to describe themselves as “pro-choice.” Of course, by this logic, so were supporters of antebellum laws that permitted slavery, yet required no one to own slaves or to demand return of fugitive slaves.) Therefore, disobedience and conscientious objection to such laws must, in most cases, be indirect. A good example is that of physicians in United States military hospitals abroad who announced their refusal to perform elective abortions when President Clinton issued an executive order lifting the ban on these abortions in such hospitals. Another example is that of citizens of states which pay for abortions with public funds who refuse, as a matter of conscience, to remit to state government a portion of their taxes corresponding to the percentage of the state budget that goes to abortion funding. Yet another example is that of nonviolent protestors at abortion clinics who defy unjust restrictions of their freedom of speech in order to plead the case for the unborn to women contemplating abortion.
In upholding the abortion license in the Casey decision, a plurality opinion of Justices Souter, O'Connor, and Kennedy called upon pro-life Americans to stop their resistance to legalized abortion and accept “a common mandate rooted in the Constitution.” For reasons the Pope makes clear, this is a proposition that Catholics and other pro-life Americans cannot accept. The doctrine of the necessary conformity of civil law to moral truth imposes on conscientious citizens of a regime that authorizes the killing of the unborn and infirm a clear obligation of resistance. It is not merely that the claim of these justices to have found a pro-abortion “mandate” in the Constitution is manifestly ludicrous. The value of constitutional democracy lies ultimately in its capacity to serve and secure the common good, which demands, above all, the protection of fundamental human rights. If the Constitution really did abandon the vulnerable to private acts of lethal violence, and, indeed, positively disempowered citizens from working through the democratic process to correct these injustices, then it would utterly lack the capacity to bind the consciences of citizens. Our duty would not be to “accept a common mandate,” but to resist.
Has the regime of American democracy forfeited its legitimacy? One way of avoiding an affirmative answer to this question is to observe that the judicial decisions at issue are gross misinterpretations of the Constitution. They are examples of what Justice Byron White, dissenting in Roe v. Wade, called the “exercise of raw judicial power.” At the same time, however, these decisions have consistently been acquiesced in by the legislative and executive branches of government. Congress has not defied the Supreme Court, as it ultimately did in Dred Scott. And, although not every President has actively abetted the culture of death—as President Clinton did, for example, in issuing a series of pro-abortion executive orders and vetoing the congressional ban on partial-birth abortions—no recent President has worked steadily to ensure, by judicial appointments and other actions, that anti-life judicial decisions are reversed.
To say that the worst abuses of human rights have come from the least democratic branch of government—the judiciary—is true, but of increasingly questionable relevance to the crisis of democratic legitimacy brought on by judicial action in the cause of abortion and euthanasia. In practice, the American scheme of constitutional democracy invests the courts with ultimate authority to decide what the Constitution is to mean. Judicial action and appointments can, and sometimes do, become major issues in national elections. The refusal of the courts over more than twenty-three years to reverse Roe v. Wade must, then, be accounted a failure of American democracy.
The judicial movement toward euthanasia makes it plain that the hour is late. The “culture of death” is well-advanced in our nation. As the Pope says, “given such a grave situation, we need now more than ever to have the courage to look the truth in the eye and to call things by their proper names, without yielding to convenient compromises or to the temptation of self-deception.” Let us, therefore, speak plainly: The courts, sometimes abetted by, and almost always acquiesced in, federal and state executives and legislators, have imposed upon the nation immoral policies that pro-life Americans cannot, in conscience, accept. Since the legitimacy of institutions of governance—be they democratic or otherwise—depends ultimately on their capacity and willingness to preserve and promote the common good by, above all, protecting fundamental human rights, the failure of the institutions of American democracy to fulfill their responsibilities has created what is truly a crisis. People of good will—of whatever religious faith—who are prepared to consider seriously the Pope's teaching in Evangelium Vitae cannot now avoid asking themselves, soberly and unblinkingly, whether our regime is becoming the democratic “tyrant state” about which he warns.
Robert P. George is Associate Professor of Politics at Princeton University and author, most recently, of Making Men Moral: Civil Liberties and Public Morality.