144 Judicial Tyranny?


            When he argued the case for the ratification of the United States Constitution in Virginia , James Madison, the document’s most influential architect, warned:  “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation.”  To protect the people’s freedom, the Constitution balanced powers in the federal government, safeguarding the rule of law from tyrannical usurpers.  Madison ‘s concern for the loss of freedom to “gradual and silent encroachments” was recently revived in an issue of Commentary (October 2003), wherein  distinguished contributors addressed the question:  “Has the Supreme Court Gone Too Far?”  Their essays demonstrate the extent to which recent Supreme Court decisions regarding affirmative action and sodomy–simply the latest of a list of similar judicial edicts–have forced many thoughtful folks to ponder the fate of constitutional law in America . 

            One of the contributors, Lino A. Graglia, a professor at the University of Texas Law School, argued that the Court has abandoned its assigned role–interpreting the Constitution–and now pursues “policy choices” designed to empower an elite, enlightened minority of like-minded liberals.  To Graglia, “Virtually every one of the Court’s rulings of unconstitutionality over the past fifty years–on abortion, capital punishment, criminal procedure, busing for school racial balance, prayer in the schools, government aid to religious schools, public display of religious symbols, pornography, libel, legislative reapportionment, term limits, discrimination on the basis of sex, illegitimacy, alien status, street demonstrations, the employment of Communist-party members in schools and defense plants, vagrancy control, flag burning, and so on–have reflected the views of this same elite. In every case, the Court has invalidated the policy choice made in the ordinary political process, substituting a choice further to the political left. Appointments to the Supreme Court and even to lower courts arc now more contentious than appointments to an administrative agency or even to the Cabinet–matters of political life or death for the cultural elite–because maintaining a liberal activist judiciary is the only means of keeping policymaking out of the control of the American people.”

            Another contributor to the Commentary symposium, Judge Robert H. Bork, had earlier and more amply set forth his views in Coercing Virtue:  The Worldwide Rule of Judges ( Washington :  The AEI Press, 2003).  As the book’s subtitle indicates, Bork believes that judicial activism now threatens peoples’ liberties everywhere, for they “are enacting the agenda of the cultural left” (p. 2).  As tenured members of the intelligentsia (labeled the “New Class” by Bork), judges increasingly consider themselves entitled to impose their political and cultural worldview.  They illustrate what G.K. Chesterton noted as a universal phenomenon:  “In all extensive and highly civilized societies groups come into existence founded upon what is called sympathy, and shut out the real world more sharply than the gates of a monastery. . . .  The men of a clique live together because they have the same kind of soul, and their narrowness is the narrowness of spiritual coherence and contentment, like that which exists in hell” (Heretics, 5th ed., 1905, pp. 180-181).   C.S. Lewis similarly observed the persistent desire we all possess to enter the “inner ring” and thereby gain power over others. 

            When the “inner ring” consists of irreligious intellectuals, utopian ideologies replace theological dogmas and guide their thinking.  As Max Weber noted, in The Sociology of Religion, intellectuals who reject religion easily embrace “the economic, eschatological faith of socialism.” Most 20th century secular utopians have embraced a socialist agenda and seek to attain it through political means.  “The socialist impulse remains the ruling passion of the New Class” (p. 6), though it now focuses on cultural issues such as sex and education rather than economics.  Modern “liberalism,” with its commitment to social change through political coercion, is thoroughly socialistic, Bork says.  And it is equally authoritarian, for the cultural elites, everywhere failing to persuade the masses to democratically embrace their values, now seek to impose them through the courts. 

            Consequently, “What judges have wrought is a coup d’etat–slow-moving and genteel, but a coup d’etat nonetheless” (p. 13).  They also lend support to a collage of special interest groups–environmentalism, feminism, multiculturalism–which share a socialistic commitment to reshaping the world.  Bork’s view was earlier espoused by the esteemed sociologist Robert Nisbet, who  noted that “‘crusading and coercing'” courts have preempted power so as to precipitate “the wholesale reconstruction of American society,” aiming to implement what Jean-Jacques Rousseau and Jeremy Bentham championed:  “sovereign forces of permanent revolution” (p. 10).  This revolution, embodied in activist judges, is both political and cultural and has significantly, if subtly, replaced “traditional moralities with cultural socialism” (p. 137).   

            Of particular interest to Bork is the internationalization of this agenda.   He devotes two chapters to Canada and Israel , whose courts are on the cusp of judicial activism.  Europe courts such as the International Criminal Court, established in 1998, have become aggressive in asserting the prerogatives of “international law”–generally understood as the edicts of elite tribunals.  “Crimes against humanity” were cited justify legal moves against Chile’s Augusto Pinochet and Yugoslavia’s Slobodan Milosevic, but not against China’s Li Peng or Cuba’s Fidel Castro!  Wars to combat communism are labeled unjust, whereas wars that advance causes favored by elite jurists are justified for advancing “universal human rights.”  American Supreme Court justices have, alarmingly, begun to cite non-American courts in issuing decisions.  Thus Justice Stephen Breyer has cited court decisions in India , Jamaica , and Zimbabwe !  The U.S. Constitution may have little bearing on the Court’s decisions, but Zimbabwe ‘s jurists apparently do! 

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            ReadingCoercing Virtue prompted me to re-read Bork’s Slouching Towards Gomorrah:  Modern Liberalism and American Decline (New York:  ReganBooks, c. 1996), a work of cultural commentary rather than legal analysis.  Modern liberalism, as Bork defines it, espouses apparent antinomies:  radical egalitarianism and radical individualism.  It triumphed as the New Left of the ’60s, represented by Bill and Hillary Clinton, Tom Hayden and Jane Fonda, gained control of the nation’s institutions in the ’90s.   Teaching at Yale Law School , Bork saw a radical change in the class that entered in 1967.  Radicalized in their undergraduate years, they “were angry, intolerant, highly vocal, and case-hardened against logical argument” (p. 36).  Simultaneously angry and hedonistic, crusading for “social justice” and care freely cohabiting, they espoused a nihilism that now pervades the nation. 

            In time, the young radicals took their ideals and became “part of the chattering class, talkers interested in policy, politics, and culture.  They went into politics, print and electronic journalism, church bureaucracies, foundation staffs, Hollywood careers, public interest organizations, anywhere attitudes and opinions could be influenced” (p. 51).  They established a variety of special interest groups–environmental, feminist, abortion rights, ethnic, etc.   And they are leading us, Bork believes, down the slope to moral degradation, Gomorrah !

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            Judge Bork also wrote an essay for a symposium that was provocatively titled “The End of Democracy?” and published in the journal First Things (November 1996).  At the heart of the controversy, says Richard John Neuhaus, the journal’s editor-in-chief, is the degree to which we still have a constitutional republic.  Neuhaus once attended a conference wherein a legal scholar concluded his presentation with the assertion that ‘we are no longer living under the Constitution of the United States of America .’  To which a Supreme Court justice in  attendance responded, ‘Welcome to the second half of the twentieth century'” (p. 244).  Though many were amused at the moment by the justice’s quip, the truth seems to be that we no longer live under the Constitution ratified in 1789.

            The essays elicited a flurry of controversy, with dozens of responses printed in various periodicals–and in subsequent issues of First Things.  All the relevant materials, plus a lengthy “Anatomy of a Controversy” by Richard John Neuhaus (including the anecdote regarding the Constitution cited in the prior paragraph), were collected into a single volume, edited by Mitchell S. Muncy, entitled The End of Democracy?  The Celebrated First Things Debate with Arguments Pro and Con” (Dallas:   Spence Publishing Company, 1997). 

            The journal’s editors, introducing the essays, wondered “whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime” (p. 3).  The term “regime” ignited a storm of protest, but the editors used it by design to indicate the possibility that “we the people” no longer rule our own country.  “Democratic” means too routinely fail to attain the people’s ends and policies they clearly oppose, such as unrestricted abortion rights, are routinely imposed through judicial fiat, as was especially evident in two 1992 Supreme Court decisions:  Romer v. Evans and Planned Parenthood v. Casey

            Such decisions prompted a dissenting Justice Antonin Scalia to declare:  “Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize” (p. 10).  In Romer, the Court overturned the clearly expressed will of the people of Colorado , who had adopted, through a statewide referendum, a constitutional amendment specifically denying homosexuals the special protections and rights granted them by some municipalities.  Commenting on the case, Robert Bork notes that “Romer is a prime instance of ‘constitutional law’ made by sentiment having nothing to do with the Constitution.”  Rather, it established “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). 

            Russell Hittinger, a professor of law at Tulsa University , argues that the amazing claims set forth by the Court in Casey asserted that even if Roe v. Wade was legally questionable it was legitimate since the American people had accepted it as law.  One of the dissenting justices, Byron White, called his colleagues’ decision in Roe an “exercise of raw judicial power,” and Casey locked in concrete that decision, making “abortion the benchmark of it is own legitimacy, and indeed the token of the American political covenant” (p. 18).  The Court behaves as if the American people had established a new “regime” ruled by judicial edicts, not legislative enactments.  After examining crucial decisions, Hittinger asserts that the new regime is “a very bad regime” (p. 27) because it leaves the weakest among us–the unborn children and the helplessly infirm–at the mercy of those who want them dead.  It excludes the people from political power, rightly exercised through legislative elections and deliberations.  And, sadly enough “it has made what used to be its most loyal citizens–religious believers–enemies of the common good whenever their convictions touch upon public things” (p. 28). 

              Hadley Arkes, a professor of law at Amherst College when the essays were published, carefully considers the implications of Romer v. Evans, the Supreme Court decision which nullified a constitutional amendment secured through a referendum whereby the people of Colorado sought to invalidate the preferential treatment homosexual activists had secured in certain localities.  This decision illustrates the propensity of judges to “advance the interests of gay rights and other parts of the liberal agenda” (p. 31).  Ultimately, Arkes insisted, the gay activists want to redefine the family and legalize same-sex marriages.  This is evident in the words of Nan Hunter, a lesbian activist Bill Clinton appointed, in 1993, “deputy general counsel/legal counsel” in the Department of Health and Human Services, who sought “to dismantle the legal structure of gender in every marriage'” (p. 35).  Such radical changes, of course, cannot be won through the democratic process, whenever the people are allowed to express and implement their convictions.  Only by enlisting an “enlightened” elite, only by pushing their agenda through the courts, can gay and lesbian activists attain their goals.

            In “Kingdoms in Conflict,” one of the more radical essays in the symposium, Charles Colson argued that we are now witnessing the culmination “of a long process I can only describe as the systematic usurpation of ultimate political power by the American judiciary–a usurpation that compels evangelical Christians and, indeed, all believers to ask sobering questions about the moral legitimacy of the current political order and our allegiance to it” (p. 41).  Supreme Court decisions, especially those securing abortion rights, cannot be prod devout citizens to ponder their allegiance to a regime responsible for the deaths of millions of unborn children.  Citing theologians such as Calvin and Aquinas, who endorsed Augustine’s aphorism that “an unjust law is no law at all,” Colson wonders how much more must take place before Christians begin to challenge and even disobey their masters. 

            Sharing Colson’s discontent, Robert P. George, a professor of politics at Princeton University , suggested that we may very well be subjects of “The Tyrant State.”  Though America is still a democratic society, “even a democratic regime may compromise its legitimacy and forfeit its right to the allegiance of its citizens” (p. 54) when it endorses what John Paul II called “the culture of death.”  This has occurred, in the U.S. , primarily through legalized abortion.  Sadly enough, in our democracy “our judges–whose special responsibility it is to preserve the core democratic principle of equality before the law–are the ones whose edicts have betrayed this principle” (p. 56).  Reflecting on what we should do, right now, given the significant freedoms we still enjoy, Professor George urges us to heed Pope John Paul II, “‘to have the courage to look the truth in the eye and to call things by their proper names, without yielding to convenient compromises or to the temptation of self-deception.’  Let us, therefore, speak plainly:  The courts, sometimes abetted by, and almost always acquiesced in, federal and state executives and legislators, have imposed upon the nation immoral policies that pro-life Americans cannot, in conscience accept” (p. 61). 

            These five essays constitute the heart of The End of Democracy.  The rest of the book contains a variety of responses, ranging from letters to First Things to lengthy essays published in other periodicals.  Most of them are quite critical, and some (Peter Berger and Gertrude Himmelfarb) on the editorial board of First Things resigned lest they be implicated in the questioning of America ‘s “democracy.”  Others (James Dobson and Mary Ann Glendon) endorsed the endeavor. 

            What becomes clear, in both the original essays and the responses to them, is the fact that abortion deeply divides this nation.  In an essay for The National Review, a “neoconservative” Jewish writer, William Kristol explained:  “the truth is that abortion is today the bloody crossroads of American politics.  It is where judicial liberation (from the Constitution), sexual liberation (from traditional mores), and women’s liberation (from natural distinctions) come together.  It is the focal point for liberalism’s simultaneous assault on self-government, morals, and nature.  So, challenging the judicially-imposed regime of abortion-on-demand is key to a conservative reformation in politics, in morals, and in beliefs” (p. 94). 

            Kristol’s analysis is amplified by Hadley Arkes, on of the original essayists, in an explanation of their intent.  Rooted in the Declaration of Independence’s appeal to the natural law–that by nature all men are entitled to certain rights, especially the right to life, he and other contributors “spoke no treason, and they took care not to incite people to a course of lawlessness.  But . . . we come to the very edge when our government tells us that the killing of unborn children must be regarded as a private right; that we may have no proper concern about the terms on which killing is carried forth in our neighborhoods; and that the meaning of ‘homicide’ is no longer part of the business of people living together in a republic” (p. 169).