There are important differences, of course-and among them are the well- argued and morally serious critiques that accompany the statements. When distinguished conservatives begin to ponder civil disobedience, and whether or not the United States has "betrayed" the democratic idea, and the prospects of American "despotism," it has-for this reader, at least-the effect of concentrating the mind. I strongly concur with some of the conclusions in the symposium, and I strongly disagree with some others.
Many important issues are raised in the symposium, two above all: the condition of the courts and the condition of the people. Most of the concerns expressed in the symposium were directed at the judicial usurpation of politics, and I understand why. If the Supreme Court and the Federal District Courts were acting in a responsible fashion, near- apocalyptic language would not make its way onto the pages of First Things.
But it has, for this reason: on many of the most important issues of our time, the courts are acting in remarkably inappropriate and injurious ways. In more and more recent cases, the Supreme Court is deconstructing the text of the Constitution and is often incoherent in its reasoning.
The Court is contributing to America's widespread social chaos-and not simply because of the acts that are sanctioned by the decisions. There is the matter of the "reasoning" that informs the decisions. Exhibit A is Justices Souter, Kennedy, and O'Connor's opinion in the Casey decision, in which they write that "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." Here is an example of "values clarification" being written not into school textbooks, but into Supreme Court opinion. It is an open-ended validation of subjectivism; whatever and however one defines life is not only valid but constitutionally protected. If this relativism becomes the coin of the judicial realm, we are in for very bad times indeed- judicially, politically, morally. If these words are taken seriously, how can we legislate against doctor-assisted suicide? Or drug use? Or prostitution? Or virtually anything else, for that matter? The danger is the anarchy that could come from such officially sanctioned rulings. The best we can hope for is that this was Souter, Kennedy, and O'Connor's attempt at a "politics of meaning" speech disguised as a Court opinion, and that it is an aberration for them and for the Court. But that is a thin reed upon which to rest our hopes.
Let us stipulate, then, that the Supreme Court is doing considerable damage and that a corrective is needed. What about the other, and in many ways more problematic, issue, namely, the moral sensibilities of the broad public? Hadley Arkes points out that on issues ranging from abortion to euthanasia to "gay rights" the Court has taken steps which have struck no moral or religious nerve. What are we to make of this?
Among the possibilities: the majority of the people are basically ignorant of what the Court is doing, and if they knew they would be outraged; people are basically ignorant of much of what the Court is doing, and if they knew they would (by and large) agree with its decisions; the people know what the Court is doing and agree with many of its decisions; or the people know what the Court is up to and may disagree with those decisions but they are not exercised enough to right its or their fellow citizens' wrongs. It is worth noting that the first explanation is the only one from which we can draw much comfort.
Now I have little doubt that the Supreme Court is undermining democratic self-government. Should the Court rein itself in or, absent that, face being reined in? Yes, for both constitutional and moral reasons. Can the Court be reined in? Again, yes. But will the Court be reined in? My guess is that given the current state of affairs, the answer is probably no. And that is itself revealing.
There are legislative means at our disposal to correct the excesses of the Court (Judge Bork proposes subjecting decisions of courts to modification or reversal by a majority vote of the Senate and the House of Representatives, or depriving courts of the power of constitutional review). These reforms will happen if our legislative bodies choose to implement them. And that, in turn, will happen if the public cares enough to make the misconduct of the Supreme Court a national priority. Keep in mind that the elected representatives of this country are as responsive to the desires of the public as perhaps any legislative body ever; even if the Supreme Court undermines the popular will (as it so clearly did in the Romer decision), the citizens of America have several means of responsible recourse available to them. And that is just one of the many crucial differences that separate America from Nazi Germany, a regime invoked a number of times in the symposium. I take the demoralization of America quite seriously. But the analogy to Nazi Germany is both wrong and regrettable.
Yes, the "judicial usurpation" of politics has undermined the ability of the people to decide on matters of birth, marriage, and death. Yes, it is asking a lot of the public to exert the kind of sustained political pressure that is required if we are to properly check the abuses of the Court. But we are where we are. And we cannot ignore the fact that there are ways for the American people to regain their democratic prerogatives. If those ways are not utilized, then the problem is not simply with the Court; the problem is also with the citizenry itself. It seems to me that that is the heart of the matter: a culture of acedia has taken deep root in the soil of late-twentieth-century America, which has led to acquiescence and passivity. Have we lost our capacity for justifiable outrage? Can we be roused to act against the spread of foul and wicked practices?
The Congress' failure to override President Clinton's veto of the "partial-birth abortion" legislation is illustrative. When it comes to the subject of abortion, I believe that there are a limited number of hard, wrenching cases. But here is an easy one: the presidential sanctioning of a procedure that is, for all intents and purposes, infanticide. What was most striking to me was the lack of virtually any public response. Now it is true that most people do not know about the partial-birth abortion procedure; that most people who do are opposed to that awful procedure; and that the pro-abortionists spread misinformation. Still, we cannot escape the fact that we had something of a national debate about infanticide-and infanticide prevailed (because of a popular President's veto); that very little was heard from those Americans who did follow the debate; that the Republican presidential and vice-presidential candidates, and many congressional candidates, said little or nothing about the issue during the 1996 campaign; and that Americans reelected as President, by a wide margin, the man who looked at infanticide and said yes to it.
Our task, then, is twofold: to make sure that the public knows what is going on in the courts, and to make the case for why people must care about it. We must be operational optimists and act on the assumption that they will care. We need to do a better job educating citizens about how the modern-day Supreme Court is improperly intruding into issues of birth, marriage, and death, and explaining which recourses are available to them. And yes, we have to do what we can to shake the public out of its servility, its complacency, its drift.
A final, crucial point: we are still America, not "Amerika." This premise ought to guide our future deliberations. Of course this nation has suffered tremendous moral regression during the last three decades. But the situation is not irreversible and our government is not illegitimate. My concern with declaring the American "regime" illegitimate is that it assumes that because of the actions of an out- of-control Court, America has become (or is about to become) a nation that is irredeemably antidemocratic, that we have exhausted all our options, that we are powerless to rein in the Court. That is simply not so. We have available to us the means. The question for our time is: do enough people have the will? I simply do not know the answer to that question-nor do I think enough has been done to inform citizens to be confident of the answer. We need to find out the answer to that question, and soon. Because one thing is for sure, and on this I think we can all agree: the stakes are very high indeed and the hour is late.
Could you not see, in the twentieth of all centuries, how profoundly offensive it is to speak this way when even the truly morally justified revolutions of our time-against Hitler, Stalin, Mao, and their acolytes and imitators-never, alas, took place? In your Introduction you warn us of the "growing alienation of millions of Americans from a government they do not recognize as theirs." Such a warning smacks of nothing so much as the kind of careless radicalism you and I not all that long ago prayed for our country to have put behind it.
Let me in the name of our long friendship presume to tell you what is the source of this eruption on your part. One certainly cannot deny that the Court has usurped powers rightly belonging to the political process, nor can one in all sanity deny that it has been using those powers to reach extraconstitutional and illegitimate decisions (encouraged if not positively required to do so in the present period, be it remembered, by the refusal of the political process to deliver to the blacks their long overdue relief from Jim Crow). But of course usurpation has been going back and forth among the three branches of government from the beginning: and the job of balancing and rebalancing involves a continuing and very difficult process of public persuasion. People, that is, must first be made to care. What we are dealing with is, in short, a cultural, rather than primarily a judicial, problem.
It used to be said of the Court that its decisions followed election results. But even in these less than attractive times nothing quite so cynical is the case: what the Court actually follows is the culture. And the condition of the culture, it seems odd for me to be reminding you, is in the end our responsibility, yours and mine. You threaten that millions of your fellow Americans have come to feel as alienated from this country as you claim to do. But there is in fact little or no evidence for that. Nor should you wish there were more. The truth is that the issues really driving this symposium, abortion on demand, euthanasia, and homosexual marriage, represent the most powerful and terrible of all temptations to people, i.e., the temptation of convenience and slothfulness. How much easier such measures all promise to make things! That is why the cultural battle over these issues will be a long and slogging and often thankless one. You may know that your fellow Americans will be better off both spiritually and psychically without these invitations to embrace what is after all the convenience of death, but millions upon millions of them do not. They do not understand what it is they are being tempted with, and it will be no simple work to convince them. So far there are simply not enough resisters of this temptation to influence the Court. I repeat: so far.
I presume in the name of friendship, then, to accuse you of growing impatient with your labors, and in your impatience, reckless. And I beg you: do not be impatient, and for heaven's sake do not be reckless about the legitimacy of this country (calling it a "regime" does not disguise what is at stake here). You will only end by strengthening the devil's hand.
While your contributors wrote with a circumspection appropriate to the occasion, they have laid an indisputable case for the illegitimacy of the regime now passing itself off as a democracy. Our government has delegitimated itself in at least two ways. On a purely political level, Americans hold that our rulers derive their authority to govern through the will of the people. Only the most partisan supporters of the present regime could insist that we still live in a functioning democracy. On the most essential matters of human life and conscience, the courts have systematically invalidated the will of the people. Furthermore, they have done this by constructing a jurisprudence that leaves no doubt they intend to continue ruling by judicial fiat for the foreseeable future. Only questions of relative insignificance have been left to the people to resolve for themselves. This is no small development and before we accept it there ought to be some sort of national discussion. I doubt most Americans are aware of the current impotence of their vote.
But there is a far more serious consideration for those citizens who believe, as Christians do, that rulers ultimately derive their governing authority from God. The decisions now being rendered by our "robed masters" (to use George Will's phrase) violate the most fundamental of all moral laws. As Professor Hittinger observed, not only has our government chosen to base its own legitimacy on their refusal to protect the defenseless, it has thrown down the gauntlet to any citizen who tries to offer such protection. "Support the slaughter of the innocents," they have said, "or consider yourself an enemy of this regime." Furthermore, the Supreme Court has placed on notice all citizens animated by religious beliefs: participation will be allowed only to the extent that they refuse to act on those beliefs.
I stand in a long tradition of Christians who believe that rulers may forfeit their divine mandate when they systematically contravene the divine moral law. The accumulation of evidence, when combined with the lawless jurisprudence that produced it, should remove all doubt that our judiciary has, by act and intention, stepped out from under the moral law upon which governing authority depends. They have made it plain that they have no intention of regarding any higher law than themselves and that those who do will not be tolerated in the public square. Having tortured the First Amendment to exclude all but "secular" motives from public debate, Justice Kennedy, writing for the Court, goes on to include in the definition of religious belief those who hold that "there is an ethic and a morality which transcend human invention." Therefore, whether you believe government derives its legitimacy from the consent of the governed or from a higher source, our government has clearly transgressed its bounds in such a manner as to lose its authority. This is where we are. The pressing question is, where do we go from here?
I want to lend my voice to the call for serious prayer and deliberation among the Christian community as a whole before any course of action is established. There may yet be political remedies whereby restraints are constructed against this unbridled judicial tyranny. We must immediately examine every constitutional, legislative, and legal option at our disposal. Judge Bork has suggested two. We need concentrated work now on every conceivable strategy to return constitutional balance to this American experiment in democracy. Of course, investing Congress with the power to overturn Supreme Court decisions is no guarantee of moral policies. But to the degree that democracy could be restored, it may be worth the fight. Christian people would again be free to pursue just government by winning a majority in the marketplace of ideas. Prudence requires that we investigate all such means before raising the prospect of more drastic measures.
It should be noted, however, that any institutional reforms will require a groundswell of public support. On this matter the editors are more optimistic than I. We have lost the Judeo-Christian consensus upon which our founders staked the success of this experiment. I quite agree with Professor Arkes when he says, "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.'" I doubt very much that our culture, having established tolerance as the new absolute, has the moral rectitude to insist that government move in the direction of traditional morality. The flaw in the design of our system of government has been revealed not merely because our courts (as well as our legislatures) are creating law ex nihilo, but because our culture is operating on the same philosophical premise, stated in Casey, that we all have a fundamental right to create and live by our own sense of reality.
And what of the church? My sense is that this will prove a defining moment for Christianity in the United States. Will American clergy be willing to risk the worst charge of our times-that of being intolerant or "mean-spirited"-to state clearly and unequivocally the standards of God in relation to these matters? Our hope of reform will only materialize with a vibrant church capturing the imagination of the American people for a transcendent moral order. Yet Thomas Reeves, in his article "Not So Christian America" (First Things, October 1996), describes Christianity in America as "in large part, innocuous. It tends to be easy, upbeat, convenient, and compatible"-not the sort of faith likely to usher in anything like another Great Awakening.
And if all means of reform have been rebuffed? Will churches be willing to forfeit their tax-exempt status in order to make a stand against the immoral actions of this government? Will clergy and laity alike be willing to face cultural ostracism, imprisonment, or worse in order to defend the faith they now profess? We may rapidly be approaching the sort of Rubicon that our spiritual forebears faced: Choose Caesar or God. I take no pleasure in this prospect; I pray against it. But it is worth noting that such times have historically been rejuvenating for the faith. Modern Christianity's easy cohabitation with American culture has been crippling for both.
If pressed to give my own thoughts as to the future, I defer to the words of William Wilberforce: "The only solid hopes for the well-being of my country depend not so much on her fleets and armies, not so much on the wisdom of her rulers or the spirit of her people, as on the persuasion that she still contains many who, in a degenerate age, love and obey the Gospel of Christ, on the humble trust that the intercession of these may still be prevalent, that for the sake of these, Heaven may still look upon us with an eye of favor."
The regime question they raise is real. There is a good case to be made that we are already living in a de facto oligarchy. It is less clear, however, that the courts are, as all six writers seem to think, principally to blame. To be sure, the judiciary has steadily usurped power over matters that the Constitution wisely left to ordinary political processes. But the courts could never have carried off that power grab were it not for pathology in other parts of the body politic.
For many decades now, control over the most important decisions affecting the conditions under which Americans live, work, and raise their children has flowed steadily from the people most affected toward state and federal legislatures and administrative agencies. The courts were hardly the only agents in this process, nor is it certain that they could have held it back. Yes, legislatures are more representative than courts, but they too are increasingly responsive to the interests and values of "elites." Yes, the judiciary all too often mirrors the biases of the knowledge class, but the legislative and administrative processes are all too often captured by the money class.
And look not to the political parties, as presently constituted, for help. It does not seem an exaggeration to say that we currently have a party of big business paying lip service to traditional moral values, and a party of big government paying lip service to the need of working people and the poor. Even that distinction is collapsing as Democratic Party leaders cozy up to big business, and Republicans discover the joys of big government.
The cracks in the democratic pillars of the republic, alas, may extend to the cultural foundations. Hittinger recognizes this when he questions whether the people have "tacitly consented" to the new regime. If the nation's courts, legislatures, and political parties are really out of touch with the needs and desires of the citizenry, why don't the American people rise up in protest? Unlike in Eastern Europe, the machinery of democratic government is here at hand. Why not repossess it, using ordinary political processes? Why not "Pass out a leaflet, call a meeting, speak your mind, decide to do something about it" in the words of the old union song? Why not organize to reclaim participatory government?
Well, one problem is that, as Michael Walzer once pointed out, "There's nobody here but us Americans." And most Americans are highly dependent on big business and government: about a fifth of the labor force are public employees; a third work for the central core of large corporations (many under government contract or subsidy); the pensions of retirees are invested in the same corporations; recipients of governmental largesse include not only welfare clients, but a substantial fraction of the middle class (through government-insured loans, medicare, and retirement income funded with general tax revenues). Most of these dependents have children or others who are dependent on them.
On this neo-feudal landscape, we find precious little politics in Aristotle's sense of ordering our lives together. You might say of anyone who is looking for sturdy, independent citizens these days what Rousseau said of Diogenes with his lantern: The reason he failed is that the man he was seeking lived in a different age.
Sure, we feel restless in the "iron cage" that Max Weber predicted we moderns would occupy. But not so restless, apparently, that we are ready to undertake the hard work of becoming citizens rather than subjects. Parents have a high stake in the future, but most are kept busy trying to make ends meet. Then, too, countless Americans are caught up in consumerism, working to pay for things they accumulate. It's our duty to consume, we're told, because it keeps other people working.
For spare moments, when regime-threatening questions might come to mind, the oligarchs have authorized a modern form of bread and circuses, an array of new sexual freedoms to compensate for the loss of the most basic civil right of all-the right of self-government. With the democratization of vice, the man in the street can enjoy exotic pastimes once reserved to Roman emperors.
For society to sponsor consumerism and hedonism while government maintains a large class of dependents, civil servants, and clients is increasingly expensive. But abortion is available to thin out the underclass and the unfit, and euthanasia may soon take care of the burdensome elderly and sick.
Perhaps, just perhaps, it is the increasing official contempt for human life that will finally arouse Americans to demand more say in setting the conditions under which they live. It's hard for many individuals to empathize with an unborn child, but everyone can imagine getting sick or growing old. As suicide rapidly becomes a "right," more people are nervously wondering whether it will become a duty. When you can't tell whether the doctor in the doorway has arrived to kill you or cure you, you'll know the culture of death has come to your house.
It's an open question whether the United States can still provide the world with an example of a people that breathed new life into its historic democratic experiment. That would require reinvigorating the structures of civil society. Local governments, families, religious groups, workers' associations, precinct organizations, and the like are our "schools for citizenship" as well as our seedbeds of character and competence. They are the only real counterforces to the excesses of market and state.
But can they be retrieved from disarray? Only, as Glenn Loury has argued, if we start with change at the personal level, "one by one, from the inside out." Let it be, dear Lord, let it be. But if it is not to be, the United States will not be the first republic to slip by small degrees into the form of government that, alas, has been more common than any other in human history: tyranny by a minority.
We will make no converts by raising the specter of violence. This changes the subject from the behavior of the courts to the behavior of conservatives. It plays into the hands of people who wish to lump us with cranks and violent extremists. If a judge is shot, some reporter will be sure to mention the symposium's brief and cool discussion of violence as an option. The right in America has been burdened by a history of bigotry and craziness. Do we really want to evoke that history again?
As a practical matter, talk about despotism in the courts has no popular resonance at all. The judicial revolution wrought by the cultural left undermines tradition, religion, and ordinary democracy in the name of autonomy and personal choice. A revolution based on a radical vision of personal freedom cannot easily be depicted as despotic. Any dramatic move against this version of despotism is bound to look bizarre because the case against it has not yet been brought to the American people.
Perhaps the most galling aspect of the revolution in the courts is that it remains invisible to most Americans. In part, this is because we get most of our news about the courts from reporters who share the principles of the cultural left and are thus part of the problem. Joan Biskupic, who covers the Supreme Court for the Washington Post, wrote last April: "Liberal activism is a thing of the past. . . . Today, outbursts of judicial activism usually emerge from the right, not the left." In the conventional journalistic view, the Supreme Court is divided between strict constructionists and moderate conservatives.
But if the real revolution in the courts is still hidden from the people, this means that it is surely too early to say that apocalyptic action may be looming as our only option. The right-to-die/euthanasia issue is not settled. The euthanasia option disturbs a great many doctors and ordinary members of our elites. Legal marriage for homosexuals is vastly unpopular too, and this case can be made through the usual channels.
Our job is still to change the culture, not to turn our back on it or to take up arms. This will involve efforts to influence the law schools, to get better and more impartial reporting, and to make a political issue out of all judicial nominations and confirmation hearings. No dramatic last-straw activities, please. Let's just keep working for change.