Con job

National Review, Jan 27, 1997 by Ramesh Ponnuru

To live as a religious believer in the terrestrial city is necessarily to experience divided loyalties. Short of the Kingdom of God, complete justice can never reign, and all temporal allegiances must be provisional. The modern American social order is sufficiently benevolent that we are usually only dimly aware of this tension. For the editors and contributors to a symposium in First Things, an increasingly influential conservative journal on religion and public life, however, recent judicial decisions have put the issue in stark relief.

The November symposium was entitled "The End of Democracy?: The Judicial Usurpation of Politics." The symposiasts -- Robert Bork, Russell Hittinger, Hadley Arkes, Charles W. Colson, and Robert P. George -- condemned recent judicial activism, particularly regarding abortion, euthanasia, and homosexuality, as both procedurally undemocratic and substantively immoral or unjust. Hittinger, a professor at the University of Tulsa, argued that these decisions not only "deny protection to the weak and vulnerable" and "systematically remove the legal and political ability of the people to redress the situation," but raise the invidious principles to the level of "essential features of the constitutional order." Further, the Supreme Court has set itself against religious believers by nullifying laws allegedly motivated by religion or even the belief that "there is an ethic and a morality which transcend human invention" (Justice Antony Kennedy's words in Romer v. Evans).

While most conservative analyses of the courts stop at or before this point, FT also discussed possible responses to this "usurpation." What troubled most of those who have since commented on the symposium was the editors' introductory statement that we may "have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime." The very legitimacy of the "regime," they argued, was in question, and those conscientious citizens might eventually -- perhaps soon -- have to consider civil disobedience or even "morally justified revolution." This use of the word "regime" was confusing: some critics took "regime" to mean something illegitimate by definition, like "junta." Further, did illegitimacy attach to the Federal Government itself, as some paramilitary groups suggest, or merely to the practice of judicial rule? This confusion caused many commentators to miss the conditionality of the editors' position: that "we are witnessing the end of democracy" and will have to consider lawbreaking if the courts are not restrained, by themselves or others.

Of the symposiasts, only Colson went as far as (if not further than) FT's editors. Writing that "a showdown between church and state" --for which believers should prepare but not hope -- "may be inevitable," Colson surveyed the key Christian texts on the limits of political obligation, including Martin Luther King Jr.'s Letter from a Birmingham Jail. His conclusion: "I have begun to believe that . . . we are fast approaching [the] point" at which "a believer must resist" the government. Such resistance would, in the first instance, take the form of persuasion. "Through her teaching and preaching office, the Church would need to expose the nature of the state's rebellion against God -- in effect, bringing the state under the transcendent judgment of God." If that failed, active disobedience would become necessary. The next step would be revolution, but "this point, I believe, we have not yet reached." Unless that point is reached, religious conservatives must "work relentlessly within the democratic process," and discussions of resistance should remain academic.

The others offered less drastic suggestions. Bork repeated his recent call for a constitutional amendment to allow the Congress to review court decisions by a majority vote or to eliminate the courts' power of constitutional review. He also suggested that elected officials not comply with unconstitutional Supreme Court decisions -- a position with a long history in American politics. Hittinger urged conservatives to treat issues like abortion as part of a "broader constitutional crisis" and, like Bork, advocated legislative remedies. If these measures did not work, he thought non-violent civil disobedience, presumably on the model of the civil-rights movement, would become necessary.

Arkes, a professor at Amherst College and longtime NR contributor, offered no prescriptions. His distinct contribution was to focus attention on the implicit threat of the new judicial activism to people of orthodox faith, who he believes could find themselves excluded from the academy and the professions as the principle behind Romer -- that traditional moral views on homosexuality are tantamount to bigotry -- unfolds to the limits of its logic. Lastly, George, a professor of politics at Princeton University, labeled the current situation a "crisis" and "a failure of American democ-racy." He called for "conscientious objection," as when physicians in U.S. military hospitals refuse to perform abortions. He concludes that citizens must ask "whether our regime is becoming the democratic 'tyrant state' about which [the Pope] warns."