"The End of Democracy? The Judicial Usurpation of Politics," a symposium in First Things (Nov. 1996), and "The End of Democracy? A Discussion Continued," in First Things (Jan. 1997), 156 Fifth Ave., Ste. 400, New York, N.Y. 10010.
"Articles on ‘judicial arrogance’ and the ‘judicial usurpation of power’ are not new," Richard John Neuhaus, a Catholic priest who is editor in chief of First Things, and his fellow editors note in introducing a symposium that "addresses those questions, often in fresh ways, but also moves beyond them." This move beyond, particularly by the editors themselves, has prompted outraged resignations from the journal’s editorial board, worried considerations of conservatism’s "anti-American temptation," and ill-informed talk of "a fullfledged war" between "neocons" and "theocons." Federal court rulings in such charged matters as abortion, homosexuality, euthanasia, and assisted
suicide add up to "an entrenched pattern of government by judges that is nothing less than the usurpation of politics," the First Things editors assert. "The question here explored, in full awareness of its farreaching consequences, is whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime." They continue: "the question that is the title of this symposium is in no way hyperbolic. The subject before us is the end of democracy."
But that, the journal’s editors say, is not the only subject: "Law, as it is presently made by the judiciary, has declared its independence from morality. Indeed ...morality—especially traditional morality, and most especially morality associated with religion—has been declared legally suspect and a threat to the public order.... 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.... 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."
None of the First Things writers—who include former judge Robert H. Bork and evangelist Charles W. Colson, as well as professors Russell Hittinger of the University of Tulsa, Hadley Arkes of Amherst College, and Robert P. George of Princeton University—call for revolution, though Colson (of Watergate fame) toys with it. ("We dare not at present despair of America and advocate open rebellion.")
Responding to the editors along with many others in a later issue of First Things, noted conservative author Midge Dector writes that she "could hardly believe my eyes" to encounter the talk of the legitimacy of the United States government, civil disobedience, "and even, for God’s sake, ‘morally justified revolution’!"
It is true, she says, that the courts have usurped power and reached "extraconstitutional and illegitimate decisions." But the real problem, in her view, is a culture that has lost its moral bearings. "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." Recklessly questioning the legitimacy of the government, she and others suggest, only serves to discredit conservative efforts to change the culture.