Under its late founding editor, Fr. Neuhaus, this journal made its reputation in part by its opposition to the judicial usurpation of democracy, culminating in its controversial 1996 symposium under that title. Those interested in the topic would do well to read James Grant’s fascinating article, The Scourge of Juristocracy, published in the spring 2010 issue of The Wilson Quarterly. In the United States, and increasingly in Canada, opposition to an apparent judicial supremacy comes in conservative guise. The courts are presumed to be imposing progressive values on a recalcitrant public in the habit of maintaining older institutions and mores. In this respect First Things has tended towards what I would call a highbrow populism, based on the (not altogether incontestable) assumption that the people possess an innate wisdom superior to the political illusions of their élites.
However, by Grant’s account, the historical development of juristocracy is more complicated than this: in the first years of the last century American courts were often seen as obstructing the progressive will of elected legislatures, culminating in the Supreme Court’s early opposition to Franklin Roosevelt’s New Deal legislation. Grant traces the diverging paths of Britain and the US in their respective attitudes to the role of judges and courts in the political process, with Britain embracing parliamentary supremacy after 1688 and the United States adopting Blackstone’s more conservative respect for the judge-made English common law. In the latter a political role for the courts could be seen as a concession to the classical mixed constitution:
Modern judicial activism is in many ways an expression of the old belief that democracy must be tempered by aristocracy—an idea that was prevalent in the late 18th century and now masquerades in democratic garb. The main vehicle by which judicial activism has been brought about is, of course, the language of rights. Coinciding with the articulation of the secular, anti-religious feelings of the Enlightenment, the flourishing of constitutional debate in the 18th century witnessed regular appeals to the idea of inalienable natural rights, which took on a sacred role. But it was only in the latter half of the 20th century that the idea (now described as human rights) became an intrinsic part of legal and political discourse. For many today, a world without rights enforced by a judiciary is unthinkable. Especially in undemocratic regimes and in new or unstable democracies beset by deep corruption and other ills, rights-based judicial review is a necessary protection against arbitrary government. But in ostensibly healthier democracies, it inevitably comes at a cost.
For the most part I find Grant persuasive. However, conspicuously absent from his analysis is a recognition of the important role of political culture in the protection of rights and in the smooth functioning of a constitution. A political culture includes a variety of attitudes, usages and mores that condition the ways people act politically. Respect for the rule of law, for example, cannot be legislated into existence where it does not already enjoy longstanding support in the culture of a particular body politic.
Americans have long esteemed their 18th-century founders as near geniuses who crafted a carefully balanced system of government that has proved durable over the course of more than two centuries. However, from the standpoint of the student of political culture, this esteem, while not altogether misplaced, somewhat misses the point. Without a supportive culture of respect for constitutional government, no political framework, however well-thought-out, could have survived for long.
This has implications for the functioning of courts as well. Here’s Grant once again: “Especially in undemocratic regimes and in new or unstable democracies beset by deep corruption and other ills, rights-based judicial review is a necessary protection against arbitrary government.” This conclusion is open to question at the very least. If corruption is as deep-seated as it is in many countries, it is a rather tall order to expect the courts to function in a way that places them above such ingrained patterns of public life. Moreover, even if the courts somehow manage to free themselves from the taint of corruption and tyranny, there is no inevitability that the governments at issue will heed their rulings, especially if the citizenry is accustomed to such governmental arbitrariness.
It would be interesting to see how a recognition of the pivotal role of political culture might change the debate surrounding the role of the courts in a political system.
September 7th, 2010 | 4:04 pm | #1
I’ve also perceived an optimism regarding democratic populism in a few Christian publications, which is understandable given populist positions on pro-life issues. But the optimism seems to me to be a bit naive, as if the common masses are intrinsically wiser than social elites, as opposed to being fortuitous recipients of an inheritance from the past made possible both by historical elites (and non-elites). It indicates an ahistorical bias towards liberal democratic capitalism and its individualistic, materialistic, nominalist, etc. values which is pseudo-Christian in that the values are Christian ones “transvalued” through modernity. I think this is partially why it is so deceptive and attractive to Christians since they can recognize in LDC values hints of what used to be Christian, and since the “alternative” ideology of atheistic collectivism is so repugnant.
The rhetorical conflation of “republic” and “democracy” aids the naively optimistic view of Democracy! (TM), masking the role the aristocracy and its political equivalents always play in society and allowing elites to evade accountability for authority.
I do find the populist halo around “democracy” troubling, if an understandable reaction to “judicial activism.” But, instead of populist polemics against the judiciary and trying to get “our judges” in it, I wonder whether a better (if more controversial) response to judicial overreach would be to acknowledge and strengthen the separation of powers by having the executive and legislative branches ignore the judicial branch’s overreaches.
It seems to me that the judicial branch has become “sacralized” in the sense that it has, since “judicial review,” become the *final word* in federal law. But this gives what was, arguably, supposed to be one branch among three equals de facto supremacy.
On the contrary, we learned in high school civics that the executive branch is the branch that executes the law (not the judiciary), the legislative branch writes it (not the judiciary), and the judiciary mere interprets it. If the legislature and executive branches agree that the judiciary has overreached, perhaps they should simply ignore its opinions and put it in its place. This seems the only way for the separation of powers to actually be enforced at a structural level. The alternative to that seems to be to reduce both the legislative and executive electoral processes to the indirect election of judges, i. e. enabling the continual reinforcement of judicial supremacy. I’d be interested in hearing alternative strategies.
September 7th, 2010 | 6:47 pm | #2
Albert, I agree fully with your first paragraph, and this is where I’ve long had difficulties with some of the things I’ve read here in FT. The protest that judges are insufficiently democratic is a two-edged sword. If huge majorities of Americans favoured the abortion licence and the courts were standing in the way, we would certainly be hearing a different tune from the neoconservatives.
This is not to say that courts are not overstepping; I agree that they are. But this is not so much a matter of their being undemocratic as that they are elevating highly contestable political issues that ought to be thoroughly debated in a parliamentary assembly to the level of sacred principle. In this respect, I resonate with Mary Ann Glendon’s argument in Rights Talk that too quickly resorting to the route of litigation is a way of bypassing the necessary task of persuading our fellow citizens of the rightness of our claims. Rights claims need to be treated precisely as claims and not as trumps to end all deliberation.
As for your later paragraphs, I might remind you of something I wrote in this space on 1 July: Second-guessing the founders. J. Budziszewski has advocated something similar to your proposal, i.e., dividing the authority for interpreting the Constitution amongst the three branches of government.
September 8th, 2010 | 3:47 pm | #3
Upon following the link to your previous post, I realized I had read it when you posted it. I bet I was influenced by it and forgot. And it’s true that no political system can overcome a legislature’s (or other political branch’s) abdication of their own responsibility.
Here’s another follow-up thought. Part of the opposition to “judicial activism” can be understood as discomfort with, as you put it, “elevating highly contestable political issues that ought to be thoroughly debated in a parliamentary assembly to the level of sacred principle,” which is to say for the judiciary to usurp the legislature’s authority–now that I think about it, though it may not have been your intention, it is curiously appropriate to use “sacred principle” to describe what judiciaries pronounce, even in supposedly secular polities–but the discomfort may also be partially attributed to the other part of Montesquieu’s solution to the problem of tyranny almost always occurring when large territories are governed: federalism.
To achieve relative peace, it is not enough, I think, for difficult issues to be debated in parliamentary assemblies when such assemblies are too distant. For embodied men, distance matters for political culture. Perhaps it is better than having judicial pronouncements from afar, but parliamentary assemblies which are perceived and in fact are far from the lives of constituents are of little benefit. I think substantive decisions need to be made and acted upon more locally for men to avoid the culture of easy rage against the “distant, abstract force” and take and feel responsibility. I think Montesquieu understood this, but because of our technology, it is hard for contemporary men to believe we are limited in this way or that we don’t pay a severe price for the “small world” technology seems to give us.
Is this overstated?
September 8th, 2010 | 7:41 pm | #4
Albert, once again we are in agreement on the virtues of a federal division of powers. And, yes, rule by a legislative assembly in a distant capital city may be scarcely better, which we well understand here in Canada, where federal-provincial issues are debated endlessly, while one province, viz., Québec, raises the spectre of separation every decade and a half or so. (Oh dear: which, where and while in the same sentence. Too many dependent clauses!) We’re past due for another such episode.
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