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The Mises Review

Edited and written by David Gordon, senior fellow of the Mises Institute and author of four books and thousands of essays.


End of Democracy? The Judicial Usurpation of Politics, The

Richard Neuhaus

4 1998
Volume 4, Number 4


Tilting at the Regime

Winter 1998

THE END OF DEMOCRACY? THE JUDICIAL USURPATION OF POLITICS
Richard John Neuhaus, et al.
Spence Publishing, 1997, xiii + 289 pgs.

In November 1996, the journal First Things published a symposium that sharply criticized recent federal court decisions on abortion, euthanasia, and homosexual rights. Decisions such as Romer v. Evans, in which the Supreme Court struck down a Colorado constitutional amendment it judged anti-gay, throw into question the legitimacy of the United States "regime." Faced with rulings that blatantly disregard moral law and majority opinion, what are decent Americans--i.e., people like us--to do? Should we begin to contemplate civil disobedience?

Attacks on the Supreme Court are a staple of the contemporary Right, and a normal reader of the symposium would have encountered little to surprise him. Among conservatives, a challenge to the federal courts is about as controversial as a campaign against rabies; and the aforementioned "normal reader" might have expected little more reaction to the issue than a few letters to the editor.

Our imagined reader would have left out of account one group--the neoconservatives. Walter Berns, Gertrude Himmelfarb, Peter Berger, et hoc genus omne, at once severed their connections with the journal. What neocon in good standing could bear to think for a moment of actually doing something about the Supreme Court?

The End of Democracy reprints the original symposium, the anguished letters of protest, and comments by writers in Commentary, National Review, Chronicles, and The New Republic. It concludes with "An Anatomy of a Controversy," an essay of nearly one hundred pages by First Things' voluble editor, Father Richard Neuhaus. The reissue of the symposium in its present expanded form gives me a welcome excuse to assault both sides in the controversy.

Not, of course, in equal measure. The original symposiasts raised some valuable points. Their criticism of the federal courts rests on two principal charges, held together in a very uneasy balance. On the one hand, several recent decisions of the courts strike at the heart of the moral law. Professor Robert George of Prince-ton states: "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.... The judicial movement toward euthanasia makes it plain that the hour is late. The 'culture of death' is well-advanced in our nation" (pp. 57, 61).

A decision that especially galls religious conservatives, such as Professor George and Professor Russell Hittinger, is Casey v. Planned Parenthood. Not only did the Court contravene the moral law, it set up a new principle to stand in its place. "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" (p. 21, quoting from Casey). Because people are autonomous in this sense, a woman's right to abortion cannot be seriously restricted by the states. But if everyone is to be the author of his own moral law, as the Court appears to mandate, are we not left in confusion? Can the Court offer us autonomous selves no guidance?

Our federal overlords have not left us entirely at sea, but their generous proffer of assistance does not win the approval of our symposiasts. The Supreme Court, in Casey, acknowledged that the reasoning of Roe v. Wade, the notorious case that first upheld a right to abortion, was eminently questionable. But it could not at this late date be overturned.

The legitimacy of our political system, according to the Court, rests on a strict construction: not of the Constitution, but of prior Supreme Court decisions. Professor Hittinger explains the Court's argument: "To these who cannot agree with the proposition that individuals have a moral or constitutional right to kill the unborn...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'" (p. 18).

In brief, then, according to the first line of criticism, the Court violates the moral law, substituting for it an amalgam of personal autonomy and its own commands. On the other hand, the symposiasts attack the Court for lack of deference to democracy. Robert Bork especially insists on this point. "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" (p. 12). The Court does not feel bound to respect the "redneck bigotry" of the majority.

We can easily see that the two types of criticism of the Court need not be compatible. "Imagine that abortion in the United States," Peter Berger suggests, "had achieved its present legal status through an act of Congress rather than a Supreme Court decision. Imagine further that the Supreme Court had then ruled this act to be unconstitutional" (p. 72). Those, such as George and Hittinger, who defend the moral law would applaud the Court, while majority-rulers like Bork would be outraged. Which criticism, if either, is right?

The moral case against abortion and euthanasia mounted by George, Hittinger, and their associates seems to be strong, but the direct relevance of this moral argument to constitutional law is not at once apparent. The Constitution is a specific legal document, granting a few limited powers to the national government, and reserving the rest to the states. Neither the Court nor Congress has the power to formulate abortion policy, since this issue is not assigned to the national sphere. Though abortion may well be morally wrong, this does not decide the constitutional issue.

"What?" we may imagine Professor George saying. "Is The Mises Review" also among the moral nihilists?" Not at all. Once more, it does not follow from the existence of the moral law that every governmental body is mandated to enforce all its provisions. A parallel at once springs to mind. From the fact that slavery is morally wrong it does not follow that a policy of national coercion directed against the "peculiar institution" was constitutional. This, I fear, is a point that Father Neuhaus has not grasped.

Neuhaus cites with apparent sympathy the view of Harry Jaffa "that the Declaration [of Independence] is an organic part of our constitutional order, a position also favored, of course by Abraham Lincoln" (p. 253). Surely the direct incorporation of "the law of nature and of nature's God" into the "constitutional order" would radically empower the central government, as it acted to enforce its interpretation of that law. I should have thought the usurpation of power by Lincoln during the Civil War, under the cloak of a crusade to preserve a nation "dedicated to the proposition that all men are created equal," sufficient evidence of this point. "But," our persistent objector may go on, "you haven't fully responded to the charge of moral nihilism. Suppose that you are right--the Constitution does not give the federal government a blank check to enforce the moral law. Aren't you then saying that if a state passed a bill allowing abortion, the Supreme Court should not, pace Father Neuhaus, strike it down?"

I am indeed saying that; the fourteenth amendment, to which Neuhaus appeals, was illegally adopted and completely destroyed the federal-state balance of the original constitution. Properly, no branch of the federal government has jurisdiction over state laws on abortion. But to say this is far from a surrender to moral nihilism. An association of independent states for specific purposes, as the United States was originally designed to be, seems entirely consistent with moral law. Those convinced that abortion and euthanasia are wrong must act at the state level; they must not, like Lincoln, advance the cause of Leviathan for moral ends, real or supposed.

I find myself also unable unreservedly to endorse the other principal line of criticism advanced by the symposiasts. Mr. Bork rightly says that the Court has substituted its own elitist values for the views of the majority. But the Constitution nowhere enacts government by the majority. More successful is Bork's appeal to the "original understanding" of the Constitution; he notes the obvious point that rights to abortion and euthanasia are not mentioned in that document.

But our eminent jurist has himself an etiolated grasp of "original understanding." In particular, he fails to grasp that the Constitution was created by the states and that the power of Congress and the President, not only the Supreme Court, is strictly limited. Thus, he writes, "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?" (p. 17). Of course the correct answer is yes.

If we cannot accept in its entirety the case of the First Things "theocrats," one must at least admire their evident concern with moral principles. The same cannot be said of their neoconservative antagonists. As soon as the least suggestion of disobedience to the Court is advanced, Podhoretz, Decter, and Co. jump ship.

We might at first wonder why: they themselves have often excoriated the Court; and the neoconservative William Kristol shows himself in the present collection a firm opponent of abortion. If they oppose the Court, why do they scurry to disassociate themselves from Father Neuhaus's journal?

Samuel Francis hits the nail on the head in his analysis of the controversy. The neocons do not oppose the present order of things in any fundamental way. Instead, they wish merely to grab power for themselves. Any attempt to call into question the basis of the United States government is then strictly verboten. Francis states: "Neo-conservatism is thus fundamentally a defense of the status quo, a political formula with which the dominant left can be content because it does not seriously challenge the premises and power structure that the left has constructed and uses for its own hegemony" (p. 134).

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