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 ensemble of three or four?
When this question was posed in the hearings on the Defense of Marriage Act, it produced, among the defenders of gay marriage, a show of bafflement. Yet, the people who were inclined to dismiss the matter of polygamy were treating with a certain nonchalance something that deserved to be treated with far more caution and sobriety. For many years, there have been centers of polygamy in southern Utah and northern Arizona that have proven intractable. Some telling commentary was offered by Paul Van Dam, the Attorney General of Utah, in 1990:
Every law enforcement officer in Utah knows there are tens of thousands of polygamists in the area, and they are clearly violating the law. Yet if we prosecute these men and women, we know [from experience] that we will produce an incredible social disruption. Thousands of children must be cared for emotionally and otherwise, and that’s a terribly expensive proposition. In addition, if you go after polygamists for illegal cohabitation, can you limit such a policy to polygamists, or do you pursue every couple in this state that is living together without benefit of a licensed marriage?
In other words, the authorities are already aware that the principled grounds of their restrictions have been compromised by the changes in the climate of opinion that have swept away the moral inhibitions on couples living together outside of marriage. One state legislator could remark, with offhandedness, that polygamy just doesn’t happen to be a big issue back in Iowa. But it seemed to elude this earnest man that polygamy does not happen to be an issue in his state precisely because the law, for many years, has cast up serious barriers against the practice. And if those barriers started coming down, do we really think that our species would be incapable of manifesting once again an interest in that arrangement?
For my own part, I would credit the avowals made by gay spokesmen like Barney Frank and Andrew Sullivan that they do not have the remotest interest in promoting polygamy, or in weakening the laws that sustain families. But their argument runs beyond their intentions. The arguments for gay marriage must in fact put into place the premises that make it untenable for the law to hold back from the acceptance of polygamy. And one thing may be attributed to the gay activists quite accurately and fairly: they have the most profound interest, rooted in the logic of their doctrine, in discrediting the notion that marriage finds its defining ground in nature. For that reason, we can count on the fact that there will be someone, somewhere, ready to press this issue by raising a challenge in the court and testing the limits even further.
In a widely noticed essay in 1991 the lawyer-activist Nan Hunter argued, with an unsettling directness, that “the impact of [gay and lesbian marriage] will be to dismantle the legal structure of gender in every marriage.” For this arrangement, she said, has “the potential to expose and denaturalize the historical construction of gender at the heart of marriage.” For several years, Ms. Hunter was the director of the AIDS Project and the Lesbian and Gay Rights Project for the American Civil Liberties Union. With these credentials, and these published sentiments, she was eminently suited to her appointment, in 1993, as the “deputy general counsel/legal counsel” in the Department of Health and Human Services under the Clinton Administration. She is, in other words, one of the most highly placed lawyers within the government likely to be consulted for an official judgment on matters relating to “the family.” And she is in a position, of course, to stoke the engines of litigation.
For what drives the litigation for gay rights is the need to have the gay life recognized and confirmed in principle in every setting in which the issue may arise. Gay activists seem to understand that their interests will not be secured as long as there persists in the public a residual moral sense that there is something about homosexuality that is not quite right. Hence, the need to seek more and more occasions for inducing the public first to tolerate, and then, in small steps, to endorse or approve. And now, with Romer v. Evans, the Court has handed the activists a powerful new device for advancing the movement ever further.
The reach of this device becomes ever clearer when we recall that the Court was not faced, in Romer, with an attempt to stir up prosecutions or withdraw the protections of the law from gays and lesbians. Colorado had already repealed its laws on sodomy. With Amendment 2, the people of Colorado had decided simply to withhold endorsement or favoritism: The coercions of the law would not be used to punish those people who bore moral objections to homosexuality. And yet, this perspective, reflected in the law, was characterized by the Court now as an “animus,” a form of blind prejudice that could not justify itself in the name of any rational purpose. As Scalia noted, his colleagues were now “disparaging as bigotry adherence to traditional attitudes,” rooted in religious teaching. In a stroke then—and without the need to marshal any reasons—the Court could pronounce the traditional moral teaching of Judaism and Christianity as empty, irrational, unjustified.
Justice Scalia has found his own, distinct touch as a jurist in offering the concrete example that illuminates the jural landscape; and in this case, he marked out with a chilling precision the path that leads out from Romer. Scalia noted that the Association of American Law Schools requires its members to extract, from the firms interviewing their students, an “assurance of the employer’s willingness” to hire homosexuals. If an interviewer harbors traditional moral views on homosexuality, his firm could be in violation of the rule established by the Association of Law Schools. We can expect, of course, that rules of this kind will quickly make their way into the bar associations, as well as other groups of professionals. Will there not be an incentive then for the law firms to gauge whether any senior partners—or even young associates—hold views that may put the firm at odds with these regulations? And the incentives will not emanate simply from the conventions of the law schools. After all, the Supreme Court itself has now declared that a moral objection to homosexuality is indefensible, a distillation of an unreasoned prejudice. If a young, gay associate is denied standing as a partner, could it not be claimed that the climate in the firm was poisoned at the outset, that it was set in a discriminatory cast by the presence of senior partners who bore moral reservations about homosexuality?
And what can be said in this respect for law firms could be said even more forcefully about colleges and universities. Given the litigious experience these days in the academy, we can virtually count on the fact that such grievances will be filed. What if a member of an academic department has simply done what I have done—given public testimony, or published a moral judgment on gay marriage? Might that not supply prima facie grounds for a grievance later in a case involving the tenure of a young professor who was gay or lesbian? Would it not be argued that the situation was at least biased, or tilted, at the outset by the presence of that member of the faculty? Can we expect, then, certain pressures to separate those members of the faculty from decisions on tenure and hiring? And might it finally be best to remove the problem at the root simply by avoiding the hiring of people who bear these religious and moral sentiments, which the Supreme Court has now declared to be prejudicial? In sum, the Court has fashioned, in Romer v. Evans, a powerful new instrument for blocking from the academy and the professions people who are “overly serious” about their religion—which is to say, people who take seriously the traditional moral teachings of Christianity and Judaism.
Through a series of small steps there is produced, over time, a dramatic change. And now we find ourselves at the threshold of a situation in which a serious Catholic, in a law firm, can be seen as a source of liability, and may need to be quarantined. But the oddity is produced by the same trend of affairs that stamps the Christian Coalition, or the religious in politics, as aggressors. The question goes strangely unasked as to what it was that “politicized” these groups in the first place and brought them into politics. During the controversy over gay marriage, the surveys showed about 70 percent of the public opposed to that novelty. But the same surveys would reveal portions of the public, comparably large, recoiling from the very people who are inclined to force a public discussion of the issue. There may be atavistic moral reflexes, drawn from a Christian past, but they seem readily matched these days by the reflexes of a newer sensibility that is wary of anyone who seems “judgmental.” Gay marriage may seem wrong, but in the new scale of things there seems something harsh or tacky about the people who would argue about the matter in public. And so the political matrix: The judges advance the interests of gay rights at every turn, and those who resist them are labeled as the fanatics.
With the same dynamic, the “Christian Right” is tagged with the responsibility for unsettling our national politics by injecting the issues of abortion and school prayer. A former adviser to George Bush asks, earnestly, “Can’t we just agree to get this issue (of abortion) out of national politics?” And he was evidently taken aback when I said, “Yes, we might make that deal—if by the ‘national’ government you also mean the courts.” For what was it, after all, that made abortion into a national issue? It was nothing other than the move of the federal courts to create a new “constitutional” right to abortion, and, in the name of that right, to sweep away all of the laws in the separate states that treated abortion as wrong. The federal courts have shifted the power to themselves as branches of the federal government, and politicized the issue at a new level of significance. Yet the people who would resist them are the ones who are condemned for bringing these divisive issues into our politics.
But this sense of the matter has taken hold precisely because the media and the public have absorbed the understanding put forth by the courts of the rights and wrongs of these matters. If there is something retrograde, something suspect, about making “discriminations” between forms of “sexuality,” then serious Christians and Jews instantly qualify as bigots. And the laws that forbid all manner of discrimination seem to emanate from a disinterested public “ethic,” suitably cleansed of any sectarian shading. The real question for us then is, How did we arrive at the state of affairs in which this sense of the world has been absorbed by a vast public in this country, which persists nevertheless in describing itself mainly as Christian and overwhelmingly as “religious”? On the question of euthanasia, the judges have quickly moved from the implausible to the unthinkable, inventing new rationales for ending the lives of people who were quite plainly alive and not dying at a decorous speed. On this matter, as on gay rights, there should have been more than enough to set off alarms for people whose sensitivities had been shaped by their religious traditions.
We find ourselves asking, then, in a blend of wonderment and outrage: What would it take in this country—what would have to happen?—before serious Christians and Jews would recognize, at once, that a critical line has been crossed? It is one thing to say, as the courts already have, that the moral precepts of Christianity and Judaism may not supply the premises of the law in a secular state. It is quite another to say that people who take those precepts seriously may be enduring targets of litigation and legal sanction if they have the temerity to voice those precepts as their own and make them the ground of their acts even in their private settings.
Perhaps Rousseau, with an edge of madness, had it right: that all of this simply came along with the ethic of modernity, as it was spread through the diffusion of the sciences and the arts. “We have all become doctors, and we have ceased being Christians.” Whatever the cause, it should be plain now that something in the religious sensibility has been deadened. My friend Russell Hittinger argues, with increasing persuasiveness, that the courts are making the political regime unlivable for serious Christians and Jews. To sound that alarm is to offer the call to political alertness. But the alarm cannot register, it cannot be felt, among people who have not been affected yet by the sense, as Christians and Jews, that there is anything taking place that is especially worth noticing.
Hadley Arkes is the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College and author of The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton University Press).
Kingdoms in Conflict
Charles W. Colson
In America today, we have very nearly reached the completion of a long process I can only describe as the systematic usurpation of ultimate political power by the American judiciary—a usurpation that compels evangelical Christians and, indeed, all believers to ask sobering questions about the moral legitimacy of the current political order and our allegiance to it. This is an inquiry undertaken reluctantly and, I hope, with due caution, for the stakes are very high. Among the questions we must address is whether millions of Americans are still part of the “We the People” from which democratic authority is presumably derived.
A little more than two hundred years into the American experiment, cultural conservatives stand convicted of unspeakable crimes in the eyes of most of America’s media commentators. The opponents of abortion on demand, in particular, have felt the whip. Some columnists charge them with fostering a climate of hatred responsible for the Oklahoma City bombing and the Michigan militia. One claimed that “the main form of political terrorism in the United States is perpetuated by right wing opponents of abortion,” while another added that “most anti-abortion activists” are “religious fanatics who want to impose their version of God’s word on the rest of us.”
The Congress seems for the most part to agree with the media, if passage of the Freedom of Access to Clinics’ Entrance Act—the act that narrowed the First Amendment rights of abortion protestors as an entire class of citizens—is any indication. And the Supreme Court appears to agree as well. In Casey v. Planned Parenthood, which enshrined the right of abortion as a specifically protected Fourteenth Amendment liberty, the majority lectured pro-lifers for continuing to contest the abortion issue. They were, in Justice Scalia’s words, to “be taught a lesson”—a lesson the Court forcefully applied in Madsen v. Women’s Health Center, Inc., which created, around abortion clinics, a zone in which pro-choice advocates were free to demonstrate but even peaceful abortion protesters were subject to arrest.
Hostility against pro-lifers seems now to have spilled over into a distrust of any group of citizens seeking to connect public policy with a transcendent moral order. Writing the decision for the Ninth Circuit Court of Appeals in Compassion in Dying v. Washington, which overturned a state ban on euthanasia, Judge Reinhardt slammed the door on people “with strong moral or religious convictions,” as he put it. “They are not free,” he wrote, “to force their views, their religious convictions, or their philosophies on all the other members of a democratic society.”
That Circuit Court decision has been appealed, but the Supreme Court itself has expressed similar sentiments. In overturning Colorado’s prohibition of local civil rights statutes based on sexual preference, the Court in Romer v. Evans effectively branded a bigot any citizen who considers homosexuality immoral. Writing for the majority, Justice Kennedy declared, “Laws of the kind before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Without any supporting testimony or findings of fact, Justice Kennedy managed to divine that the sponsors of the referendum and the voters who ratified it must have been motivated solely by bias.
Kennedy’s decision, now the law of the land, forces us to ask a series of critically important questions: Are citizens—whether Protestants, Catholics, Jews, or Mormons—who seek to apply transcendent moral values to public life welcome in political, legal, and cultural debates? Are citizens free to “impose” such values by referendum or legislative means in their respective states, or are their efforts inherently unconstitutional? Does religion (equated by Justice Kennedy in an earlier case with the belief that “an ethic and a morality which transcends human invention” exists) have any role to play in the law?
The answers to these questions have ominous implications for cultural conservatives. Writing in the Baylor Law Review before the Romer decision, David Smolin of Samford University Law School argues that the present Court—rejecting “religiously based” claims as inherently particularistic—is increasingly dismissing “traditional theists” as too absolutist to join in public debate in a pluralistic society. This dismissal of religion (coupled with what he considers the Court’s abandonment of the rule of law) helps explain the “frustrated religious patriotism” that drives much conservative political action. With political prospects increasingly out of reach, Smolin predicts traditional theists with political interests will be forced to abandon their religious beliefs and accommodate themselves to an amoral, libertarian regime. The only alternative seems to be an abandonment of their political interests, becoming what the theologian Stanley Hauerwas has called “resident aliens” in America—no longer concerned about the fortunes or misfortunes of a flawed republic, no longer considering this land their country.
As events at this summer’s Republican National Convention in San Diego show, the putative alliance between the religious right and the Republican Party offers little solution; and the truth is that grave dangers exist regardless when the independence of a religious mission is married to a particular political party’s agenda. But utter political despair, at least, may be premature. Believers may have been told that their convictions disqualify them from public debate, but the news is news they’ve heard before. During the parliamentary struggle to curtail the British slave trade in the late eighteenth century, Lord Melbourne sounded much like the U.S. Supreme Court today when he huffed on one occasion, “Things have come to a pretty pass when religion is allowed to invade public life.” Yet Christian reformers pressed on, rolling back, one by one, features of the slave trade until it was abolished in 1807 and slavery itself in 1833.
Unfortunately for us, however, events in America may have reached the point where the only political action believers can take is some kind of direct, extra-political confrontation of the judicially controlled regime. Following the logic in Romer, the Supreme Court can in time strike down state statutes barring polygamy, sodomy, and incest. Under the Romer logic, I believe, it will easily find no compelling state interest in confining marriage to a man and a woman, when the fallout from the case in Hawaii’s state courts reaches the federal level.
A court empowered to judge a statute’s constitutionality by that court’s own inference of the animus of the statute’s sponsors is a court set free from any limitations on its power—its power, on the one hand, to strike down any law enacted with the political aid of believers, and its power, on the other hand, to move directly against churches and denominations that display a perceived animus in their teaching toward certain behavior. The free exercise clause of the First Amendment poses no obstacle to a judge with any creativity, and—given the demonstrated animus of the current judicial regime against believers—a showdown between church and state may be inevitable. This is not something for which Christians should hope. But it is something for which they need to prepare.
When considering the relation of church and state, we must remember first, of course, that in the thirteenth chapter of his letter to the Romans, Paul has written what must remain for Christians the classic admonition of obedience to the governing regime. Most scholars and pastors, however, recognize that this admonition needs to be balanced with other biblical passages that suggest individuals will at times face a very clear choice between God and Caesar. The Old Testament prophet Daniel, rather than violate God’s law, was granted permission not to partake of the king’s food—though, we must acknowledge, he took the minimum resistance necessary, even seeking a pagan official’s approval of an alternative action. His friends Shadrach, Meshach, and Abednego went further, risking their lives rather than worship pagan idols. In the New Testament Book of Acts, Peter and John refused to stop preaching the gospel even as they recognized the state’s right to punish them. The biblical evidence suggests that where a state either demands what God prohibits or prohibits what God demands, the believer is to obey God and graciously accept the state’s imposed consequences.
Not all Christian thinkers have applied these principles in exactly the same way. John Calvin, for instance, held a somewhat narrow line, stressing the responsibility of citizens to fear and honor whatever ruler is placed over them, even “the most wicked tyrant,” a Nebuchadnezzar or Belshazzar. Though he conceded that disobedience to the state under certain (biblically identified) circumstances was a Christian’s responsibility—and allowed for lower magistrates to take issue with rulers on behalf of the people—Calvin remained confident that God providentially works His will in all sorts of people, good and bad.
Augustine and Thomas Aquinas, however, saw more circumstances than the Swiss Reformer where a Christian citizen may need to question or resist civil authority. Augustine’s dictum remains the most famous formulation of the broader view of a Christian’s relation to the state: “An unjust law is no law at all.” Aquinas argued that God’s delegation of authority to civil authorities was linked to the fostering of virtue. When a ruler meets that test, when his laws and actions are in accord with the lex divina, and when human law promotes the tranquillitas ordinis, then human law is just; but if it “runs counter in any way to the law in us by nature, it is no longer law but a breakdown of law.” Martin Luther King, Jr. cited both these thinkers in defense of civil disobedience in his Letter from the Birmingham Jail in 1963: “A just law is man-made code that squares with the moral law of God. Unjust law is a code that is out of harmony with the moral law.” We must observe, however, that King did not call for general disobedience or resistance to the state; only the unjust law, he argued in an important qualification, can be disobeyed.
Among Protestant thinkers, the Scottish Reformer John Knox also saw more circumstances than Calvin under which civil powers might be disobeyed. He called on the nobility not simply to resist but to overthrow what he considered the tyranny of Catholic rule in Scotland. In addition, he believed that the common people could revolt if the nobility failed in an effort to bring Reformation to Scotland. A century later, the Scottish Covenanter Samuel Rutherford penned his classic work Lex Rex, arguing that the written law stands above the king, and when the king strays, his actions are unjust and may be resisted, indeed must be resisted. Rutherford was the inspiration for the twentieth-century theologian Francis Schaeffer, who claimed in his Christian Manifesto that “at a certain point there is not only the right, but the duty, to disobey the state.”
The Pauline passage in Romans recognizes two realms: Caesar’s and God’s. But Scripture in general, including Paul, recognizes that Caesar rules under God’s authority, with delegated power to achieve certain ends: justice, domestic tranquillity, the restraint of evil. Christian thought throughout history has held that any government which perverts these ends is acting ultra vires, in violation of its delegated authority. Dietrich Bonhoeffer, the German Lutheran pastor who was martyred for resisting Hitler, gave what may be the clearest expression of the principle: “If government persistently and arbitrarily violates its assigned task, then the divine mandate lapses.”
This may be a sort of “preaching to the choir,” for it strikes me hardly anyone would deny that a government can become so corrupt that it is the positive duty of Christians to resist it. The real questions facing us are, rather, these: At what point does a government become sufficiently corrupt that Christians must actively resist it? and, Has the United States, under its current judicial regime, reached such a point?
Sometimes, to their shame, Christians have not roused themselves to resist evil government, and sometimes, to their credit, they have. In 1985, after President Marcos invalidated a freely held election in the Philippines, Christians began gathering in prayer groups. The Roman Catholic Jaime Cardinal Sin (who emerged as a dominant figure in the opposition to Marcos) publicly withdrew moral legitimation for a corrupt regime, holding the state morally accountable before God for its failings. Shortly thereafter, nuns left their convents, and lay Christians their homes, to flood the streets where they disarmed the tanks Marcos had ordered to maintain control.
Protestant churches have acted similarly. In 1934, representatives from eighteen provincial churches gathered in Barmen to create a “Confessing Synod” of the German Evangelical Church, declaring ecclesiastical independence from the Nazi regime. While the convocation was concerned more with saving the Church than the state, it indirectly questioned the moral legitimacy of the government and gave impetus to the German resistance movement. A more obscure but nonetheless interesting case is the Reformed Presbyterian Church of North America, a small denomination with roots in western Pennsylvania. Declaring early in American history that the Constitution was “godless” because it failed to acknowledge the authority of Jesus Christ, the church up until a generation ago practiced “political dissent,” not allowing members to vote, hold public office, or take oaths of allegiance to the flag or the Constitution.
The uniqueness of the American experiment provides an opportunity for a Christian critique of the legitimacy of the current regime. When the republic was founded, the biblical tradition and the Enlightenment—two distinct and often antagonistic understandings of the world—seemed to find a patch of common ground. God’s authority was acknowledged (“All men are endowed by their Creator with certain inalienable rights”), but sovereignty was vested not in God but in the people who consented to be so governed. The subsequent experiment in “ordered liberty” was achieved because, while some saw their liberty secured by God and others by their status as human beings alone, all agreed to be bound together for the sake of that liberty.
To use a political term of the time, a “social contract” that included biblical believers and Enlightenment rationalists was the basis of the founding of the United States. Whether Christians ought to have agreed to that contract is an interesting historical and theological question, but not really of much significance in our present circumstances—for agree to it Christians did. Our pressing question is rather whether the successor parties—today’s governed populace and their judicial governors—still recognize the essence of the contract. If one party no longer does, that party has breached what lawyers call a “condition precedent”: the essential promise by which the other party’s agreement was secured.
If the terms of our contract have in fact been broken, Christian citizens may be compelled to force the government to return to its original understanding—as even Enlightenment rationalists have acknowledged. John Locke, a principal Enlightenment force behind the theory of a social contract, advocated the right of citizens’ resistance to enforce the terms of the contract. The writings of Thomas Jefferson, who spoke openly of the necessity of revolution, could also be called upon for support.
It seems to me, however, that only the Church in some corporate capacity, not the individual Christian, has the authority to answer the question of our allegiance to the present regime. While the fragmentation of American churches poses obstacles to the kind of ecclesiastical consensus reached in Germany in the 1930s or the Philippines in the 1980s, some kind of convocation of theologically orthodox bodies could presumably join to consider the duty of Christians under the present order. (The statement “Evangelicals and Catholics Together,” published in First Things in May 1994, demonstrates that joint efforts are possible.) While such a convocation could not claim to speak with total authority as the Church, it could give voice to a consensus of opinion among Christians in America.
Only the Church collectively can decide at what point a government becomes sufficiently corrupt that a believer must resist it. But, with fear and trembling, I have begun to believe that, however Christians in America gather to reach their consensus, we are fast approaching this point. Most orthodox Christians are likely to find it impossible to support a political regime under which the judiciary—without any legislative license—sanctions abortion, euthanasia, and homosexual marriage. Few believers are likely to pledge their allegiance to a government under which the courts—in the name of “constitutional rights” they themselves have sole authority to read into the Constitution—can systematically close off any form of political opposition by declaring it to betray the “inevitable inference” of animus.
And if, after prayerful deliberation, Christians corporately determine that our present government has violated its God-given mandate, what then? After the pattern of the confessing German church, the Church would first have to separate herself and declare her independence, disavowing any moral legitimacy indirectly or unofficially provided for the state in the past. Through her teaching and preaching office, the Church would need to expose the nature of the state’s rebellion against God—in effect, bringing the state under the transcendent judgment of God. Though clergy and ecclesiastical officers must refrain from partisan political activity, as I have cautioned elsewhere, condemning the taking of innocent lives is not partisan, whether through protesting abortion clinics or (as the British clergy did in World War II) denouncing a government for bombing civilian targets.
Churches and religious organizations in this country have already, in limited circumstances, asserted their independence at some cost. In the 1980s, when New York barred discrimination against the hiring of practicing homosexuals by private agencies with city contracts, the Salvation Army, Agudath Israel, and the Catholic archdiocese simply refused city funds; in the case of the archdiocese, that meant losing $72 million in funding.
But what if all these actions fail to deter the state? Churches must then consider a higher level of resistance. In the campaign against slavery in the nineteenth century, Protestant churches used internal discipline and external pressure. The revivalist Charles Finney refused communion to slaveholders. Others organized the Underground Railroad and rescued fugitive slaves from prison. Many ministers broke the law, were arrested, and some were imprisoned.
But would even active disobedience be effective against our current judicial state? When peaceable means and limited civil disobedience fail—at least according to the Protestant theologians Knox and Rutherford—revolution can be justified from a Christian viewpoint. While Knox called for the overthrow of a ruler in the interest of the Reformation, Rutherford advocated revolt in any instance when a king or ruler acted contrary to the written law. Apparently, many Christians in colonial times agreed with Rutherford. After dumping tea in the Boston harbor, one Boston pastor, Jonathan Mayhew, argued that for a people to “arise unanimously and resist their prince, even to dethrone him, is not criminal but a reasonable way of vindicating their liberties and just rights.”
Of course, the same standards Augustine used to evaluate the justice of a war apply to the justice of a revolution: no other alternative is feasible; the advantages outweigh the suffering caused; and the evil employed in the revolution prevents far greater evil. The churches would have to be convinced that our present government had become totally opposed to God’s purposes and that there was no other solution to prevent massive evil. And this point, I believe, we have not yet reached.
Prudence requires greater understanding than most Christians presently have about the threat that recent and pending court decisions pose. In Compassion in Dying v. Washington, Ninth Circuit Judge Reinhardt literally dared the Supreme Court to reverse Hardwick v. Bowers (the five—to—four decision in 1986 that upheld Georgia’s statute against sodomy). Three of the five justices in the Hardwick majority have been replaced, and the decision appears to be, as Judge Reinhardt eagerly pointed out, at odds with the rationale behind the Casey decision. If Hardwick falls, the Court may likely require states to recognize homosexual marriage. Christians therefore would be forced to live under a government whose actions violate the biblical ordering of social life and threaten the first institution ordained by God.
Reinhardt’s decision in Compassion in Dying v. Washington itself prohibited states from preventing euthanasia—which, if upheld by the Supreme Court, means that the medical murder of the sick and elderly has become our government’s national policy. Similarly, President Clinton’s veto of the congressional bill banning the murder of babies when partially delivered is tantamount to affirmation of infanticide. It would be hard to imagine that a Christian in good conscience could swear to uphold the Constitution or laws of a nation that practices the horrendous offense against God of taking the defenseless lives of the weakest among us: babies, the elderly, and the sick.
The fervent and ceaseless prayer of every Christian should be that the discussion of resistance and revolution remains an academic exercise. We must continue for now to work relentlessly within the democratic process. Abhorring a confrontation, we should be engaged in a search for wisdom and a consensus to help us respond to the crisis of the time. Our discussions about the duty of Christians to the current American political order must be conducted with care, in a manner that is formal rather than intuitive, deliberative rather than spontaneous, regulative rather than pragmatic. Calmness and seriousness of demeanor is necessary both to prevent the media dismissing us as fanatics and to prevent individuals from taking matters into their own hands.
And, after all, the Supreme Court may possibly keep faith with the original contract that brought Christians into the republic; seeing what it unleashed with Roe and institutionalized with Casey, it may yet rediscover the principle of judicial restraint. Politicians may be persuaded of their error in supposing economic positions more important than moral positions. Perhaps some of our most vitriolic critics in the media may discover that Christianity has been historically a far more powerful force for common good than the reverse. God is sovereign, after all, and He is in the miracle business. And if the polls are right, believing Protestants and Roman Catholics, generally socially conservative, represent a viable political majority in this country.
We dare not at present despair of America and advocate open rebellion. But we must—slowly, prayerfully, and with great deliberation and serious debate—prepare ourselves for what the future seems likely to bring under a regime in which the courts have usurped the democratic process by reckless exercise of naked power.
Charles W. Colson is Chairman of Prison Fellowship and the 1993 recipient of the Templeton Prize for Progress in Religion. He is the author of fourteen books and coeditor of Toward a Common Mission: Evangelicals and Catholics Together (Word).
The Tyrant State
Robert P. George
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.
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