Copyright (c) 1997 First Things 69 (January 1997): 2-11.

An Illegitimate Regime?

While I do not retract a word of my criticism of the judiciary's usurpation of democratic powers ("Our Judicial Oligarchy," November 1996) , I wish that my remarks had not been preceded by the Editors' suggestion that we may "have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime." My criticism of the courts was not intended to support any such proposition. The necessity for reform, even drastic reform, does not call the legitimacy of the entire American "regime" into question.

Robert H. Bork
Washington, D.C.

I entirely agree with those contributors to the November symposium ("The End of Democracy? The Judicial Usurpation of Politics," November 1996) who maintain that the judiciary has vastly exceeded its proper powers and that this is a very serious problem for our polity. But I do not at all agree that this raises the specter of the illegitimacy of our government.

Slavery did not illegitimize the Founding, as some radical historians suggest. Nor did the Vietnam War (an "unjust war," many claimed) illegitimize the government of that time. By the same token, the appalling errors of the present judiciary (in respect to abortion particularly) do not illegitimize the government today. If abortion is the litmus test of a moral law that cannot be violated by positive law, then all of the Western democracies that legalize abortion-and do so by the legislative rather than judicial process-are illegitimate. (Indeed, the only legitimate governments would be Iraq, Iran, and the like.)

The Editors' Introduction cites the American Revolution as if we are now in a similarly revolutionary situation-an analogy that, in my opinion (and that, I believe, of the overwhelming majority of Americans), is absurd and irresponsible. It also cites a papal encyclical affirming the supremacy of the moral law. But the pope did not declare Nazi Germany or the Soviet Union illegitimate, despite the genocide and mass murders, which were surely as much violations of the moral law as abortion.

The use of the word "regime" compounds the problem, for it suggests that it is not the legitimacy of a particular institution or branch of government that is at stake but the very nature of our government.

This is not, it seems to me, a proper mode of political discourse, still less of conservative political discourse. Indeed, it discredits, or at the very least makes suspect, any attempt by conservatives to introduce moral and religious considerations into "the public square"-as if morality and religion necessarily lead to such apocalyptic political conclusions. It can only confirm many Americans in their suspicion that cultural conservatism is outside the "mainstream" of American politics, that it is "extremist," even subversive.

I am not reassured by the promise that this is only the opening round of the discussion, that this magazine (and other journals as well) will continue to explore this theme and present different points of view. On the contrary, in my opinion this aggravates the problem, for it focuses attention even more on a subject that is not and should not be a subject of contention. It makes it sound as if the legitimacy of the government is a major concern of conservatives, and this is precisely the idea that I find unacceptable.

It is with great regret that I am resigning from the Editorial Board of FIRST THINGS, a journal with which I have been proud to be associated. But you have raised so grave and, in my opinion, irresponsible an issue, and given it such prominence, that I cannot, in good conscience, continue to serve on the board.

Gertrude Himmelfarb,
Washington, D.C.

You do not speak for me (a member of the Editorial Advisory Board since the inception of the journal) when you say that the government of the United States is morally illegitimate and come close to advocating not only civil disobedience but armed revolution. I don't care to engage in an argument with you; I want simply to announce my resignation from the advisory board. Please remove my name from the masthead.

Walter Berns
American Enterprise Institute
Washington, D.C.

The symposium presses beyond the conventional neoconservative critique of the substance of recent decisions and the legal reasoning by which they have been reached and raises the far more important questions of the transcendent truths upon which our republic is founded. In so doing, your journal will undoubtedly upset both those committed to the new turns of the courts and those who find these developments alarming, but refuse to ground their opposition in philosophical and theological claims. As several of your contributors demonstrate, because the new positions are themselves based on claims about the ends and goals of individual and communal life, an agnostic traditionalism cannot suffice to counteract them.

The calls for civil disobedience that some of your contributors issued should be alarming to anyone and most of all to members of a vulnerable minority like the Jews. But the image of a judiciary highhanded in its disregard for the moral convictions of the populace and the political traditions of the nation is at least as alarming. Let us hope that reason and constitutional principles prevail.

Jon D. Levenson
Harvard Divinity School
Cambridge, MA

What a splendid issue is November 1996, what a remarkable team of contributors cogently making a common point. Robert Bork, Russell Hittinger, Hadley Arkes, Charles Colson, and Robert George have given us all cause to pause. Congratulations for the wisdom and courage of this symposium- and for the brilliant lead-in to it.

Ralph Mclnerny
University of Notre Dame
Notre Dame, IN

Bravo! The FIRST THINGS symposium is a splendid analysis of the plight in which America now finds itself. The presentation of how desperate our situation is has already distressed those "conservatives" who want nothing more than to be the regime's "loyal opposition," forever offering half-hearted dissent to whatever decadence the dominant culture foists upon us. So be it. Your ship's course will be much steadier for their having jumped.

Of course, the culture of decadence extends far beyond the courts. Its tentacles envelope the real sources of social control-education and the media. To break this hold will require a passionate commitment which understands the nature of power and a willingness to confront the Beast with whatever (moral) means are necessary to defeat it. The task at this late hour may prove futile, but it is the only one which takes "first things" seriously....

(Rabbi) Mayer Schiller
Monsey, NY

. . . Our moral order and political system which the judiciary is busily undermining are the fruit of "the laws of nature and of nature's God," the principles of the Declaration of Independence. Even today few doubt that both reason and revelation, nature and God, support the traditional family, protect children at every stage of life, and proscribe unnatural carnality. In the Declaration of Independence, those laws are invoked to establish criteria for the legitimacy of government, spelled out with some precision. Finally they provide the raison d'etre of the Constitution itself (on which the judiciary depends for its own powers). "The laws of nature and of nature's God" ultimately are our constitutional order: to be a citizen of America is to adhere without qualification to the regime based on those principles.

On October 8, 1995, in Baltimore Pope John Paul II said:

If an attitude of skepticism were to succeed in calling into question even the fundamental principles of the moral law, the democratic system itself would be shaken in its foundations.... The United States possesses a safeguard, a great bulwark, against this happening. I speak of your founding documents: the Declaration of Independence, the Constitution, the Bill of Rights. These documents are grounded in and embody unchanging principles of the natural law whose permanent truth and validity can be known by reason, for it is the law written by God in human hearts.
Do the editors of FIRST THINGS lack John Paul's measured confidence in the power of our principles? Where the Pope insists that we must embrace the highest truths of our own regime, FT wonders whether we would not be better off deserting it as illegitimate. However unintentionally, this weakens the constitutional allegiance of Catholic and other citizens outraged at judicial insolence and abandons our great "founding documents" to unchallenged control by the liberal elites.

Only two years before a constitutional majority elected Abraham Lincoln and his party to sweep slavery down "the course of ultimate extinction," all three federal branches were dominated by proslavery interests. The Supreme Court had just held that according to the Constitution black men can neither be citizens nor possess rights which white men must respect. By 1858 the struggle against slavery appeared lost, yet Lincoln neither despaired nor publicly speculated about whether the Constitution was "legitimate." Instead, somewhat like Pope John Paul, Lincoln demanded that the principles of equality and liberty, the moral truths of human dignity which form the Constitution's foundations, become the "civil religion" of every citizen.

The citizens of America need to be instructed that, as sovereign, they possess powerful instruments with which they can take back their Constitution whenever they choose, including the electoral process, impeachment of judges, constitutional amendment, declaratory and prohibitory laws nullifying abusive court holdings, legislative denial of jurisdiction, and others. The real question is the political and moral health of our people. If we are not healthy enough to return to the principles of self-government, the alternatives are less palatable, less democratic, not to say despotic. Machiavelli might approve but the Pope and, I have no doubt, FT's editors would prefer to witness to the self-evident truths of "the laws of nature and of nature's God" until our citizens restore the constitutional order to "first things."

Dennis Teti
Washington , D.C.

It would have been helpful had Robert Bork laid out the evidence he merely mentions in claiming that the moral and political havoc wreaked by the Supreme Court "is the inevitable result of our written Constitution and the power of judicial review." This claim seems to legitimize the Court's present hegemony. If Judge Bork's claim is admitted, then all the Court's "departures from the Constitution" (his phrase), all the cultural upheavals worked by the Court and deplored by him and by the other contributors to your November symposium, are an abuse of lawful authority, not an exercise of arrogated authority....

Our archonocracy has arisen . . . not from the intent of the Framers but from the claim of the Court, first enunciated and implemented in Dred Scott, that it has the duty (hence power) to void Federal law it deems unconstitutional. The clincher came when the Court expressly pronounced such law inapplicable not only to parties to the case before the Court but to anyone....

If the branches of the federal government are truly coequal, if the President and Congress are not subordinated to the Court by the Constitution (except insofar as the Court might declare them to be), then the theme of "judicial restraint" that runs wistfully through your symposium is less an appeal for the impossible than a misconstrual of the problem.

Yet this phrase can be redeemed. Rather than take "judicial restraint" in the unrealistic sense of an all-powerful and unaccountable judiciary restraining itself, we should take it in the constitutional sense of a judiciary restrained by the other two branches.

Our plight is fully as atrocious as your symposium presents it, but not so desperate. There is no need to speak of extreme measures when proven remedies are within our grasp. We can take heart from history, for, whatever the Burkes and the Actons may say, it is a preceptor of principles and not merely of prudence.

Patrick G. D. Riley
Wauwatosa, WI

And it came to pass that, as the Federal judiciary sat in the courts of law interpreting the Constitution, the anti-usurpationists and the cultural warriors and the original intentionites came and said, Tell us, by what authority make ye these activist rulings? Or who gave you this authority?

And the judges and justices answered and said unto them. We also will ask you one thing, which if ye tell us, we in like wise will tell you by what authority we do these things. The decision in Brown v. Board of Education, whence was it? From a licit interpretation of the Constitution or from judicial usurpation of politics? Answer us.

And they reasoned with themselves, saying, If we shall say, From a licit interpretation, they will say, Then the usurpation of politics is not the real issue, is it? But if we shall say, From judicial overreaching we will lose our credibility, because all know that Jim Crow was unjust no matter what the majority wanted.

And they answered the judiciary and said, We will not mention your decisions against racial segregation or discrimination in our diatribes in FIRST THINGS.

So their arguments lost their force because the "Impeach Earl Warren" movement was not ignited by any 1947 ruling on the establishment clause.

. . . Without Brown the nation would surely have faced generations of struggle against legal segregation. As it v. as, Brown assisted mightily the nascent popular movement and galvanized the enforcement mechanisms of the Executive Branch. A decade later the Congress began to act. The least democratic branch of government took the initiative, while the most democratic took years to act. Apparently your symposiasts would have opposed such a sequence of actions. It's too bad that it somehow slipped all their minds to apply their analyses to Brown.

Jerry Keucher
Staten Island, NY

. . . The whole usurpation of power by the courts over intimate aspects of our lives began with the discovery in Roe v. Wade of a "right of privacy." Justice Blackmun opined that "this right of privacy, whether it is founded in the Fourteenth Amendment's concept of personal liberty as we feel it is, or, as the District Court determines, in the Ninth Amendment, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" (emphasis added).

Courts are not supposed to feel; they are supposed to know exactly where and what in the Constitution permits or gives such a right. The majority could not find it then and cannot now. The Court keeps on going back to Roe as foundational to justify all the other rights that the Court found emanating from that decision. If, therefore, Roe is illegitimate the whole structure (abortion, contraception, homosexuality, right to die) comes crashing down. That is why every few years the Court must reiterate this abortion right as foundational to its legitimacy and to all the cases about privacy decided since Roe....

But how do millions of people give assent to decisions that they think are inherently immoral and an abomination? Is this not a replication of the demand of the Third Reich that its policies be accepted by the Volk under pain of undermining the established order? Patriotism demanded that the Germans submit, just as we are reminded that unless we submit to the ukase of the Court on the abortion decision, the Court's very legitimacy will come into doubt. Such a demand places the committed Christian in an impossible dilemma, a choice between the legal system and his conscience.

When I became a lawyer I swore to uphold the Constitution of the United States, which now, as interpreted by the Court, contains newly discovered rights that, if accepted, would destroy my moral and religious beliefs and therefore my conscience. This oath was always conditional. Long before that in a commitment to God, Christ and his Church, I committed myself to God's law and precepts, which unconditionally take preference over all human laws: "We must obey God rather than men" (Acts 4:19). I must follow conscience and God rather than Roe, Romer, and Casey.

Peter J. Riga
Houston, TX

Judicial usurpation of politics, while it is a danger to and a flaw in our democracy, is not the end of democracy. As soon as a solid majority of the country is ready to act against the courts, the President and the Congress can get together to appoint enough new Justices to put the courts back in their proper place. If sufficient public feeling against the judges' usurpation is aroused, the Court may offer "timely compliance" to the demand for judicial restraint, as it did in the 1930s....

The reason to insist that even with judicial usurpation the U.S. is still a democracy is that internationally we are in a time when the critical division among nations is between democracies and non-democracies. While improving democracies is important, we should not let the ardor of our rhetoric in fixing our democracy lead us to blur the international line between democracies and authoritarian systems. ...

Max Singer
Chevy Chase, MD

(See article The End of Democracy? for further discussion of this issue.)