First Things first - moral issues brought up in magazine First Things - Editorial

National Review, Nov 11, 1996

CAN a Christian, or a Jew, or any other thoughtful religious person, justify resistance to unjust laws passed by our modern American democracy? And if such laws seem permanently entrenched, can he abandon his general duty toward lawful authority and (though forswearing violent resistance) live as a kind of internal exile, refusing to obey certain laws, even obstructing their enforcement, and withholding a portion of his taxes on the grounds that they feed the immoral appetites of an illegitimate Leviathan?

These questions are raised not in the abstract by NATIONAL REVIEW, but in the concrete circumstances of today's judicial decisions on abortion, physician-assisted suicide (a/k/a euthanasia), gay marriage, and social institutions and morality in general, by First Things, the magazine on religion and public life, edited by Richard John Neuhaus. The November issue of First Things contains a symposium on "The End of Democracy." To oversimplify, it offers two broad and (we would contend) not fully compatible judgments. The first argument -- advanced by Robert Bork and Hadley Arkes -- is that the federal courts have abused judicial review to the point of usurping the powers of elected legislatures and thereby eroding American democracy -- and that something should be done about it. NR fully endorses that argument and would like to see judicial review severely curbed. But the second claim -- which appears in the essays of Russell Hittinger, Robert George, and Charles Colson -- is more dubious. It is that, because politicians and people have acquiesced in these judicial decisions (in effect, by not rising up to reverse them), American democracy itself has embraced a moral neutrality in the law that is oppressive toward religious citizens, hostile to any morality that can be shown to have religious roots (i.e., all of them), destructive of social institutions like marriage and family which have until now been shored up by religious morality embodied in law, and literally murderous toward the unborn -- and that therefore the American democratic regime may be "illegitimate."

Of course, the stronger the first argument, the weaker the second. If the courts are our unelected rulers, then American democracy cannot be held responsible for what are undoubtedly the crimes and misdemeanors they commit. All is not yet lost, moreover. The people have allowed sovereignty to slip from them partly from an undue respect for the Supreme Court, partly from an ignorance of judicial arrogance fostered by elite journalism and the law schools, partly because they don't have all day to devote to legal questions on which they feel a sensible humility, and -- to be sure -- partly because they have been corrupted by decisions that have transformed sins into rights and virtues into bigotry. They may yet rise up and restore majority rule. Conservative argument should concentrate on encouraging them to do so.

Suppose, however, that Dr. Hittinger's pessimism is justified. What if the American people have surrendered to a court-imposed libertinism and made it their own? Suppose American democracy is "illegitimate" not because it is undemocratic, but because it has embraced a cold amoral legalism that tramples over the rights of religious people and traditional communities. What then?

"Render unto Caesar the things that are Caesar's . . ." was addressed by Christ to the subjects of a tyrannical and unjust empire whose moral and religious views (not to mention their nationalist sentiments) were outraged daily by its edicts and practices. Christ was not, of course, counseling acceptance of morally objectionable laws -- He completed the injunction ". . . and to God the things that are God's" -- but He was discouraging rebellion against Rome's general authority. The grounds on which a Christian may legitimately resist lawful authority are few and hard to establish -- genuine oppression, positive legal injunctions to enforce a moral evil, etc. The methods he may use are narrowly circumscribed -- refusal to enforce an objectionable law sometimes, organized physical resistance to it rarely, armed uprising almost never. And his aims should be appropriately modest -- the withdrawal of the law rather than the overthrow of the government.

Note that these conditions do not depend upon a government's being democratic. Our general obligation to obey the laws rests upon the fact that the laws protect us (against our fellow man), not upon the ultimate justice of the government's founding, still less (fortunately) upon its general moral character. When law and government seriously oppress us (under despotism), fail to protect us (in conditions of anarchy), or threaten our very lives (Nazism, Bolshevism, Pol Pot), then our obligations to them are correspondingly relaxed, negated, or replaced by a duty of resistance. But these circumstances are happily rare. In most times and places, we have a simple moral duty to obey the law.

If democracy is not required to justify this obligation, it nonetheless strengthens it. For democracy provides legal avenues of protest and reform which remove the justification for resistance to specific unjust laws -- or at least shrink it to the level of conscientious objection and modest civil disobedience (which, to be sure, is all that Dr. Hittinger et al. are claiming). Yet the principle is clear: because a democracy never finally makes up its mind but allows indefinite debate, it cannot be said to have embraced a crime or entrenched a sin. Our aim now should be to reclaim our democracy from the courts.