Editorial: Judging the Justices
Yes, the judiciary is usurping the powers of the people, but talk of revolution is alarmist.
by David Neff | posted 12/09/1996 12:00AM
Bracing for charges of irresponsibility and alarmism, the editors of the conservative monthly First Things brought forth in November a five-article symposium on "The End of Democracy?"—a title they claimed was "in no way hyperbolic." No tabloid tease there. They meant it.
The authors, a distinguished array of conservative legal theorists and political scientists, including Charles Colson and Robert Bork, argue that recent Supreme and Federal Circuit Court decisions have short-circuited the democratic process, doing an end run around the popular will in such areas as abortion, gay rights, and assisted suicide. Indeed, in the Romer case, which invalidated the express will of Colorado voters to ban gay-rights ordinances (CT News, June 17, 1996), the Supreme Court defined by fiat any disfavoring of a sexual minority as proceeding from animus (rather than principle or reason). The Court stripped the voters of their constitutional means of addressing moral problems in their midst. This left the voters of Colorado—and of every state of the Union-no recourse, no possibility of ballot initiative, referendum, or even amendment to the state constitutions. Ergo, "the end of democracy." We no longer govern ourselves. The Court has seen to that.
The First Things authors feel this pinch keenly, recognizing that, in principle, the judicial branch of the federal government has usurped powers that belong to the people, the Congress, and the executive branch. Their analysis of the Court is cogent. But the Christian's deeper dispute with such cases as Roe and Casey is not simply that they undemocratically bypassed the legislative process; it is that they undemocratically fail to recognize the moral equality of all persons (including the seriously or terminally ill and the unborn).
A cure worse than the disease?
The remedy for all this will require vigorous action: several symposium authors called for increased resistance (sacrificial giving to prolife causes; volunteering at hospices and prolife pregnancy centers; political, legal, and educational activism; more intentional support for adoption). The remedy may also be radical: civil disobedience (refusing to pay state taxes that fund abortions; nonviolently defying unjust restrictions on freedom of speech in front of abortion clinics), and even, potentially, revolution.
Fortunately, Charles Colson made it clear that the time for rebellion is not yet, that "we dare not at present despair of America," and that God is "in the miracle business." Colson reviews the historic criteria for justified rebellion according to Protestant lights John Knox and Samuel Rutherford. Our government clearly has not breached the people's trust to the point that revolution could be justified.
But perhaps talk of revolution should be out of bounds. One lesson of history is that we do not know what a revolution will bring. We can, however, be sure it will not be what we imagine. Take Poland as an example: At almost the same time First Things released its symposium, the Polish Parliament approved a broadly permissive abortion law. This, just three-and-a-half years after the young noncommunist government had passed a church-approved anti-abortion bill. This Polish reversal is about more than abortion: it is the rejection by the pervasively Catholic Polish population of their own church's influence on their fledgling liberal democracy. A Christian revolt here would just as likely yield "wild grapes" on the other side of the revolution.
December 9 1996, Vol. 40, No. 14