The news this next year will be dominated by the presidential race. That is near to inevitable. In that race, there are few things as consequential as the location of authority, and, in particular, the authority of the courts.
Way back in 1956, Hannah Arendt wrote an essay titled What Is Authority? In it, she declared, It is my contention . . . that authority has vanished from the modern world. That is a provocative statement, as Arendt was often provocative.
Lexington Books has just published a volume called Civilizing Authority: Society, State, and Church . Edited by Patrick McKinley Brennan, it is a collection of essays written in response to Arendts claim. Each is worth reading. There is, for instance, Authority in the Church by the irreplaceable Avery Cardinal Dulles. It is sometimes said, critically, of people who become Catholics that they have a need for authority. But of course, answers Dulles, as do we all. Whether in religion, law, science, or traffic directions, the inescapable question is Sez who? With particular reference to science, but with ramifications for every dimension of life, the classic reference is Michael Polanyis Personal Knowledge , a book that has had a great influence on Dulles thinking, and on mine.
(You may have read reports about Cardinal Dulles deteriorating health. In the last several months he has experienced increasing difficulty in speaking. It is a complication from the polio he suffered as a young man. But he is as alert and industrious as ever and was again most genial company at our Christmas dinner. He has a major article¯Who Can Be Saved?¯in the forthcoming issue of First Things .)
Back to Civilizing Authority . I was particularly taken with the essay by J. Budziszewski, professor of government and political philosophy at the University of Texas, Austin, and a First Things contributor, How a Constitution May Undermine Constitutionalism. Budziszewski suggests we should pay more attention to the anti-Federalist writer who styled himself as Brutus and was probably New Yorks Judge Robert Yates. Brutus claimed that the Federalists, and Madison in particular, were vastly overestimating the way in which their famous checks and balances would keep the judiciary from becoming the controlling power in the new political order.
A lot of commentators overlooked the question mark. Contributors included Robert Bork, Robert P. George, Hadley Arkes, and Russell Hittinger, and the crisis was described as the judicial usurpation of politics. J. Budziszewski was among those responding to the symposium in the pages of First Things . Commentary published a symposium in opposition to ours. There and elsewhere, critics condemned the First Things symposium as extreme, alarmist, and even insurrectionary. In time, many critics, including Commentary , came around and agreed that, yes, there is something very much like a crisis and, yes, the courts, led by the Supreme Court, have gone a long way toward usurping the political (meaning mainly legislative authority) in this constitutional order.
In Civilizing Authority , Budziszewski quotes Henry de Bracton, the thirteenth-century English jurist who declared, Lex facit Regem ¯the law makes the king, not the king the law. The king is supreme within the system but not over the system. Budziszewski then notes the ways in which the anti-Federalist Brutus was prescient in seeing how, far from the courts being checked by the legislative and executive branches, the two latter branches would acquiesce and even collude in the protection and expansion of government power by letting the judiciary have the last word in saying what the Constitution means.
As did the First Things symposium, Budziszewski cites numerous instances of this strange dynamic at work. Constitutionalism, says Budziszewski, is the principle that the real authority of government depends not on the personality of the rulers but on antecedent principles of right. Brutus wrote that, in the proposed Constitution, These principles, whatever they may be, when they become fixed, by a course of [judicial] decisions, will be adopted by the legislature, and will be the rule by which they will explain their own powers. Which, of course, is precisely what has happened. The principles of right are no longer antecedent but are devised by the courts.
This was most overtly, one might say flagrantly, asserted by the Supreme Court in the 1992 decision, Planned Parenthood v. Casey . The Court composed what Budziszewski calls a confession of faith: At the heart of liberty is the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State . That is heavy-duty philosophy coming from a committee of lawyers.
Budziszewski writes: To understand this creedal statement one must recall what occasioned it. What the Court meant by defining ones own concept of human life was not so much deciding what to think, but deciding what to do: Because I have liberty to define my own concept of life, I may kill. In strict logic, it would seem to follow that I may kill anyone. In fact, it would seem to follow that I may do anything whatsoever. For the time being, the Court restricts its universal permission to the taking of life not yet born. This serves as a salutary reminder of what may be called the first principle of judicial usurpation: Formulae of universal permission never really mean universal permission; they are always instruments for the transfer of the power to prohibit from one set of hands to another. That king who says Everything is permitted will always add, But I decide for everyone what everything includes.
And in Casey the Court did not neglect to make the last point unmistakably clear. The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States, and specifically upon this Court . . . The Courts power lies in its legitimacy, a product of substance and perception that shows itself in the peoples acceptance of the Judiciary as fit to determine what the Nations law means, and to declare what it demands.
And what the law means is that anybody who disagrees with the Court should shut up. The Court puts it only a little more sedately: Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe . . . its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Courts interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The mandate is that those who oppose Roe s imposition of the unlimited abortion license should cease and desist. In Casey , says Budziszewski, the Court in effect declared, LEtat cest nous ¯We are the state.
Does Budziszewski go too far? Did the 1996 First Things symposium go too far? I dont think so. Im not at all sure, however, that this demonstrates, as Budziszewski would have it, that this is an instance of the Constitution undermining constitutionalism. It is not that unless one believes, with the 1992 majority of the Supreme Court, that the Constitution is whatever the Supreme Court says it is. It is a service to draw attention to the prescience of Brutus and others who saw how this constitutional order could go wrong. But the Constitution was ratified, and there is not much to be done about that.
More useful than rehabilitating the anti-Federalists is to heed the wisdom of Justice Antonin Scalia and todays Federalists who insist upon a much more modest judiciary that is committed to the original meaning of the Constitution, and limits itself to interpreting rather than making the law.
As I say, the news of this coming year will be preoccupied with the presidential race. In that contest, there are few things as important as likely appointments to the judiciary, and appointments to the Supreme Court most of all.