We had intended to sound an alarm in public, and sure enough, we managed to produce, as Henry James would say, a “minor tremor of the public tail”: Five writers and professors joined in a symposium, in the journal First Things, on “The End of Democracy? The Judicial Usurpation of Politics” (November 1996). I happened to find a place in this band of incendiaries, along with the likes of Robert Bork, Russell Hittinger, Charles Colson, and Robert George. Our arguments also were amplified, with a certain edge, in a forward written by Father Richard Neuhaus.
The concern of the writers was with the steady aggression of the courts in reshaping the matrix of our laws on the matter of abortion, assisted suicide, gay rights, and the meaning of marriage. Under the direction of the courts, the law would withdraw from its central mission in casting protections on human life: There would be a new license to take life as a kind of “private right,” and all legislation to the contrary—all public votes and referendums—would be swept away. And when legislators were stripped of the power to legislate, there would be no point in arguing over these matters in the course of electing people to the legislatures. One by one, then, these subjects would be withdrawn from the arena of public discussion, from the deliberation and judgment of citizens. In a “regime of consent,” the power of consent is being withdrawn from those who are governed. In the name of the “rule of law,” this regime is being converted into something else.
It was explained in the Declaration of Independence that governments may lose their legitimate claim to govern when they become “destructive” of those “ends” for which governments are established in the first place. Those ends involved, at their core, the protection of our natural rights. And standing first in the list was the protection of life. The writers in the symposium spoke no treason, and they took care not to incite people to a course of lawlessness. But as Russell Hittinger put it, 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.
Father Neuhaus took note of the alternatives that spring to mind, “from noncompliance to resistance to civil disobedience to morally justified revolution.” He would endorse none of them, but he wrote, darkly, of
a growing alienation of millions of Americans from a government they do not recognize as theirs; what is happening now is an erosion of moral adherence to this political system.
From passages of this kind, the controversy seemed to burst into flame. Of course, the symposium was meant to jolt and to launch a discussion. But we were rather surprised that so many of our usual allies seem more alarmed by us than by the offenses that we had sought, in detail, to describe. As the saying goes, attacks on us “come with the territory.” Still, some of those attacks have been bizarre. A piece in the New Republic suggested that the controversy marked a split between Catholic Thomists and Jewish neo-conservatives. According to the writer, there was a group of “Catholic intellectuals … attempting to construct a Christian theory of politics” and create nothing less than a Christian republic. And “this attempt, in the eyes of at least some of the [neo-conservatives], also directly threatens Jews.”
Serenely abstracted from this account of the affair was the fact that three of the five writers in the symposium were not Catholic, and that I happen to be Jewish. Of the three writers who are identified with natural law, none of us has ever sought a Christian republic. We all have been identified with an understanding of natural law, or moral reasoning, that is accessible to people across the religious barriers.
But the real tremors have been generated by the concern that we were challenging the legitimacy of the American regime. In point of fact, we thought we were trying to vindicate the American regime, against a pattern of moves that threatened to replace the regime with something else. We were, as I say, sounding an alarm, but perhaps we assumed, all too readily, that seasoned readers, reading a serious journal, would recognize that we were writing with a certain restraint and shading. We expected then that urbane readers would be cautious in flying, from our words, to the most extravagant implications. We had been raising a serious question about judges violating the principles that were at the core of the political order. And yet, even to raise that point was taken as a virtual incitement to the militia groups to take up arms against the government. But one does not entail the other. And we cannot be restrained from speaking of serious questions of principle because the lawless in spirit might be moved to become lawless in fact. As Richard Neuhaus put it, “the delusions of weekend revolutionaries should not set the boundaries of political discussion.”
There is no need to soften the point: The charge made by most, if not all, of the participants in the symposium was that the usurpation of the judges, on matters of the gravest moral consequence, has created a corruption in the political order. But in that sense, we said nothing more damning than what could have been said of this country in the nineteenth century, when the republic incorporated in its laws the acceptance of slavery. The wrong of slavery ran back to the very premises of a regime that held it wrong to rule another human being without his consent.
But as long as slavery was sustained through the consent, or the suffrage, of the people, there was no remedy for the problem consistent with the character of the regime: The problem could not be “solved” by calling off elections, for that remedy would violate the very principle that the opponents of slavery were trying to vindicate. In the same way here, the acceptance of abortion on demand may constitute a corruption running deep, but it cannot justify the resort to force in a regime in which people are still free to persuade, and seek support, in free elections.
But the problem would remain, with the same predicament in principle, if we found an elected government that was willing to preside over a regime of death camps. The willingness to mount a resistance, with acts outside the law, would be portentous for the same reasons. And yet, with all of our reservations about acting outside the law, could we strictly say that it would be wrong for any citizen to throw his body in the way of the killing machine and rescue people where he could? Such an act would be outside the law, but in resisting the killing of the innocent, it might have the effect of administering, to fellow citizens, a bolt of recognition.
Happily, we are so constituted that no elected government in America could sustain itself while presiding over an Auschwitz. The American people may be growing duller in their moral reflexes, but they are likely to react with outrage if they had any evidence that real persons were getting killed, systematically, in large numbers. The difference between this case and the problem of abortion is that many ordinary people, with decent reflexes, simply do not have the same sense that real human beings are getting killed in these surgeries.
And so our dilemma persists. It is a portentous thing to say in public, even in guarded ways, that certain acts out-side the law may be justified. But the dilemma in principle is intractable: If we know that human lives are being taken in abortions, what is the honest answer to be given when people earnestly ask us whether they would be doing a justified thing, overall, if they actually saved innocent lives? How could we hold back, or avoid the straight, honest answer, on grounds other than prudence?
In the end, then, we bite our lips and counsel people to accept the restraint of the law. But discreetly covered over here is the fact that we cannot really explain why we should be constrained, in principle, from rescuing the innocent from the arbitrary taking of their lives. Lincoln once wrote to his friend, Joshua Speed, “You ought … to appreciate how much the great body of the Northern people do crucify their feelings in order to maintain their loyalty to the constitution and the Union.”
Our symposium sought to convey our sense of the depth of the problem, even as we preserved our commitment to lawfulness. Our friends do not quarrel with our assessment of how bad, in fact, things are, but they seem to condemn us for a want of prudence in saying so. Of our forbearance they say nothing. What they apparently find disturbing—to the strain of their own tolerance—is that we should be artless enough to say, in public, that the regime is truly in crisis because certain thresholds of principle have already been crossed.