February Letters 133

“The End of Democracy?”

Your symposium “The End of Democracy? The Judicial Usurpation of Politics” (November 1996) did a great service by sounding the alarm about the risks and costs associated with the farce that is modern American constitutional law. Judges have claimed the power to make our moral choices for us, and, thus far, we have permitted them to do so. As a result, our pretensions to self-government are increasingly hollow, as is our public morality. This state of affairs is indefensible. It persists only because so many people view it as an immutable part of the political landscape. Unfortunately, your symposium did little to dispel that misunderstanding. 

It was a theme of the symposium that there is no good remedy for judicial usurpation of power. Your introduction expresses certainty that the judiciary has abused its power but says, “Like our authors, we are much less certain about what can or should be done about it.” Later you summarize the remedies considered in the symposium, “ranging from noncompliance to resistance to civil disobedience to morally justified revolution.” All of these options are extralegal, some are catastrophic. Nowhere do you or your authors consider the possibility that a practical remedy for judicial overreaching is built into our Constitution…. 

The framers may never have anticipated the bold claim of authority Chief Justice John Marshall made in Marbury v. Madison, but they believed that the judiciary could not, under any circumstances, threaten self-government because the constitutional plan made it utterly dependent on the other branches of government. As Alexander Hamilton said in The Federalist, No. 78, “The judiciary… has no influence over either the sword or the purse…. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” 

What the framers failed to anticipate was that the “executive arm” would slavishly enforce any error the judiciary chose to pass off as constitutional interpretation. Hamilton assumed that the executive would independently assess the merits of what the Supreme Court had to say, and if the Court was out of line, the executive would ignore it. If our practice were in accord with this assumption, the Court could not threaten the foundations of democracy in America. The fact that it does should not be taken as evidence of a defect in the constitutional scheme, only as the occasion for a small adjustment in our constitutional practice. 

We need to restore the power of the executive to determine for itself whether judicial decisions merit enforcement and to deny enforcement to those decisions that do not. This power is inherent in the constitutional design. Without it, that design is suicidal, a futile effort at self-government doomed to end in a judicial oligarchy. The President of the United States is the head of a coequal branch of government. He cannot uphold the dignity of his office and fulfill his oath to preserve, protect, and defend the Constitution and, at the same time, subordinate his own judgment regarding constitutional interpretation to the Supreme Court. All it would take to confine the courts within their proper boundaries would be a President with the courage and vision to maintain those boundaries….

––J. Peter Mulhern
Bowie, MD

…  Any notion of Christian “moral legitimacy” to government or governing authorities must always be provisional, not absolute. Most American Christians have not taken the time or effort to reflect seriously on the whole of New Testament teaching regarding the state and our individual and corporate responses to it. The writers of the New Testament, in my view, indicate that no matter what government Christians find themselves under, they are to live responsibly (pay taxes, give proper respect to governing authorities, and comply with just laws). At the same time, the New Testament clearly teaches that all governing authority is temporal and ultimately bounded by God’s authority. As Christians, our allegiance to any government is at best provisional and always defined by our ultimate loyalty to God and his purposes. 

Our lack of biblical reflection has meant that American Christians have vacillated between one approach that sees the United States as a special dispensation in God’s economy (the temptation of many within the Christian Coalition) and another that views this nation as the source of much of the contemporary evil in our world (the view that drives much of the religious left). Historical reality is much more complex than either position allows for, and it is only through sustained and thoughtful reflection on the biblical witness that Christians can articulate and practice a responsible personal and social witness in our present historical situation….

––Robert J. Mayer
Charlotte, NC 

 Regarding your symposium, I found the tone, much of the content, and the apparent intent outrageously intemperate and irresponsible. 

 I cannot but wonder, if recent judicial decisions had been more in keeping with the views of the symposium participants and of the editors of First Things, that there would have been proposals “ranging from noncompliance to resistance to civil disobedience to morally justified revolution.” I am appalled! There are reasonable and responsible alternatives to what you propose, including the very obvious one of persuading legislators to address the issues raised by Casey (1992) and other judicial decisions. The constitutional system has not collapsed. We simply need to insist that our elected representatives see to it that it function democratically and effectively. And that insistence goes well beyond legitimate concerns about the federal judiciary….

––Robert W. Heywood 
Flint, MI

 Shame on Robert Bork for playing politician and not scholar in his article “Our Judicial Oligarchy.” He claims in short that democracy has met its demise at the hands of a liberal Supreme Court…. 

What role the unelected judicial branch should play in American government is a question of supreme importance. The Supreme Court has unprincipally asserted itself for causes liberal, conservative, and otherwise. This should concern anyone who values democracy. Mr. Bork’s real concern, however, is the perpetuation of traditional values, which is a valid but completely different issue. Mr. Bork and the editors of First Things should be more honest.

––Kenneth C. Hardy, 
Long Beach, CA  

All five essays in your November symposium were thought-provoking. I didn’t agree with all of the suggestions presented in them, but I wrestled with them all––which I assume was the aim of the exercise. I am puzzled by the vehement reaction it evoked from some in the conservative camp. 

What is conservatism? Surely not an abstract, objectless doctrine. Conservatism aims to conserve things, especially the vital cultural traditions of our civilization. Among those traditions––central to them, I would contend––is the proposition that “laws” that aren’t really laws but usurpations of legitimate authority are unjust, and unjust laws are not morally binding. This is the core argument of all five essays, and if it is a “radical” proposition, I will inform my radical friends that they now have to include St. Thomas Aquinas, St. Augustine, and the Old and New Testament in their canon. Perhaps there is a place for them there (Aquinas went so far as to call an unjust law “an act of violence”), but I seem to remember my conservative friends also considering them worthy of serious study. 

As a living doctrine, conservativsm is hearty, robust, and challenging. It is not to be confused with timidity.

––George McKenna,
Tenafly, NJ 

 I write to commend and thank you for publishing the symposium on “The End of Democracy?” In my opinion, this is the most important and needed project you have ever done, and thinking and concerned Americans should applaud and become activated by this most serious and thoughtful discourse. 

My hope is that it will be widely circulated, reprinted, and become the subject of consideration in legislative bodies, law schools, religious organizations, and civic groups, so that the analyses and warnings of the dangers and threatened end of our democratic experiment will not be ignored. My fear is that the current culture is such that the authors and thoughtful conservatives will be condemned, demonized, and marginalized as radicals and extremists for daring to discuss these issues.

––Melvin J. Spencer
Oklahoma City, OK 

 I read the symposium on “The End of Democracy?” in the Westchester County Jail completing part of a five-day sentence for disorderly conduct. Bishop George Lynch, Brother Fidelis Moscinski, CFR, and I were arrested in front of a notorious abortuary in Dobbs Ferry, New York, for attempting to dissuade people from killing children. In fact our disorderly conduct was quietly saying the rosary while sitting in the driveway of this place where children were actually being dismembered at that moment. A representative of this agency admitted in federal court that they performed third trimester abortions, that is, the killing of viable children separated from the protection of law only by their mother’s womb and the hideous legal fiction that they are not human beings. 

 As I sat reading in my cell, each article of the symposium took on greater significance, with one writer after another describing in legal and philosophical terms the origins of our constitutional crisis. This crisis has lead to the legalized murder of infants and is now threatening to extend to the chronically ill and the aged…. 

At the entrance to the huge military cemetery above Honolulu there is a sign that reads, “War is ultimately a spiritual problem.”… To paraphrase the cemetery sign, “Abortion, euthanasia, and the constitutional crisis are ultimately spiritual problems.” We Americans with our hedonism and moral relativism are the real causes of the constitutional crisis.

––(The Rev.) Benedict J. Groeschel, CFR
Larchmont, NY

 I have practiced law for over twenty-one years and I completely agree with the major thrust of the symposium––American courts, particularly the federal courts, have abandoned the concepts of rule of law and limited government under constitutionally delegated authority. In many instances they have substituted rule by judicial fiat. 

However, if our nation does face the end of democracy, and I fear it does, I submit that the problem cannot be traced simply to usurpation of power by the judiciary. That is merely a symptom of the disease, and the prognosis is extremely grim.

Our founding fathers recognized that limited, constitutional government by majority rule was possible only for a people imbued with certain concepts of the obligations of a citizen, and subject to restraints imposed by an authority higher than government. Even the deists among our founders would have agreed that these concepts of duty and restraint were based on the Christian faith…. 

I think there is a universal tendency in mankind that will always worship the greatest force, and in America that greatest force appears to be the force of secular government.

––Steven Kropelnicki, Jr.
Asheville, NC

For a small but growing number of conservatives today, there comes a terrible moment when one realizes that America is not just illegitimate in isolated pockets (as many conservatives have long believed), but that it is in some sense fundamentally illegitimate, because its dominant institutions and ideals have become illegitimate. For me, this epiphany came with the Supreme Court’s decision against the Virginia Military Institute last June, and the broad public acceptance, even celebration, of that decision. At the time I said to friends: “We’re not living in a free country any more, we’re living under a tyranny.”… 

 The importance of such insights––painful though they may be to those who want to believe in America––cannot be overstated. The fact that we are no longer living under a free government based, however indirectly or unofficially, on Christian morality, but under an entrenched countercultural tyranny, makes the usual conservative slogans and solutions meaningless. We need a whole new politics, aimed at dismantling the illegitimate powers that the federal courts have usurped over the past sixty years and at directly challenging the culture of decadence enshrined in the schools and the media. Without such a counterrevolutionary politics, to go on speaking of conservative goals like “remoralizing society” or “returning to the limited government of the Constitution” is to indulge in empty rhetoric. 

Indeed, the extreme distress of leading establishment conservatives over the First Things “End of Democracy?” symposium spectacularly confirms the suspicion, long held by some on the right, that those conservatives’ opposition to liberalism is at bottom only an intellectual game. They don’t want to face the truth of how corrupt and illegitimate our regime has become, because that would require them to challenge it seriously. As their indignant denunciations of the symposium suggest, the only thing these conservatives really want to conserve is the existing left/liberal system, and their own comfortable (if essentially powerless) places within it….

––Lawrence Auster
 New York, NY 

 I’m finishing my third reading of your symposium and I can’t think of enough good things to say about it. But the more I think about the Supreme Court’s dictum in Casey (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”), also taken up by the Circuit Courts of Appeal in the assisted suicide rulings, there’s either less to it than appears, or it’s much worse than that. 

The heart of liberty as defining one’s concept of existence? What does it mean, in a secular understanding, to define a personal concept of existence? You either exist or you don’t, what’s to conceptualize? Is there a grey area in between? 

And how can suicide be a defining of one’s concept of existence? If you’re dead, you have no existence to define. The first rule of logic is that a thing cannot both be and not be at the same time. Oh, but that’s Scholasticism, which is disallowed on the grounds of religious motivation.
The heart of liberty as defining one’s concept of meaning? At the heart of madness lies the fact that one’s concept of meaning has been defined privately. Madness is the privatization of meaning. The ancient Greek word for a private person was idiotes. According to the Supreme Court’s dictum, the most free person in the world would be the schizophrenic. This isn’t freedom, it’s solipsism. 

The heart of liberty as defining one’s concept of the universe? Do astrophysicists define their personal concept of the universe? Or do they try to discover and explain what is really there for the benefit of all? Why does the Court bother to elevate the legal status of fictional constructs of the universe? Is it the juridically correct understanding that the universe is an occasion for the projection of fantasies?
So, apparently illogic and insanity are the only legally permissible meanings of meaning. As to “the mystery of human life,” where to even begin, except to say that if the justices would recognize the natural right to life, they might not find it such a mystery….

 ––Frank Medlar
Chestnut Hill, MA 

 Thank you for your brilliant and most appropriate symposium. Thank you for saying what has been on the minds of so many of us. 

Having read the article on the symposium by David Brooks in the Weekly Standard, I know that you are taking many hits, but I believe it is our old friends who are abandoning you who are wrong in this instance. 

How are we to demonstrate the truth to our children who must be raised in this philistine culture? How do we pass on the faith to them? 

If I am right about the harsh despotism that is showing signs of coming forth, I trust our old neoconservative friends will see that their self-interest, as well as the interest of constitutionalism, resides in discussing these kinds of questions. 

––Robert Jeffrey
Kennesaw, GA

… Felix Frankfurter, reflecting the constitutional sensibility of a bygone era, once observed that “the circumambient condition of the Constitution is federalism.” The contemporary judiciary, in a development that would have appalled Frankfurter, makes bold to offer a substitute proposition. For our present robed oligarchy, the circumambient condition of the Constitution is the “mega-right” enveloped in the “mystery passage”: “the right to define one’s own concept of existence.” 

If in common law, as its practitioners are wont to say, there is no right without a remedy, then perhaps we might similarly contend that, in constitutional law, there is no right without a reference. At one level of encounter, the “all-purpose right to define the meaning of the universe” represents a right without a reference, either in respect to procedure or in respect to substance. First, what would constitute the process according to which this right might find expression? Presumably, the process would amount to nothing more than the untutored promptings of the unfettered self. Second, given this protean provenance, what reasonable substantive content could conceivably result? In referential perspective, the mystery mega-right––since the process of its exercise would be as boundless as the myriad promptings of the myriad selves within a society, and the resultant product no less so”can mean, in hopeless indetermination, anything, at any time, under any circumstances….

––Edward J. McBride
Halifax, Nova Scotia 

 Bravo for your symposium. It makes compelling Lockean arguments that the judicial usurpers who rule us lack legitimacy. I like to say we have a system of “student government,” because we are treated like high school students––able to govern ourselves only insofar as our black-robed “principals” care to let us do so. 

But a more focused critique is called for both by prudence and by practicality. Political prudence requires that we affirm rather than abjure the American constitutional tradition, for it was a relatively good one of ever-expanding inclusivity up to the time of Roe. Practicality requires that we provide ways for ordinary citizens, rather than only for political leaders, to express that affirmation through what Evangelium Vitae calls “conscientious objection” to unjust laws. My proposal would be to avoid the broader issue of regime legitimacy and simply identify the concrete consequences of the fact that Roe v. Wade is invalid both under the Constitution and under natural law….

One would hope that the Catholic bishops and other moral or religious leaders would join this educational effort and would point out, for example, that any police officer or judge who understands the invalidity of laws denying human dignity commits a legal and moral wrong in arresting or condemning rescuers at abortion clinics. Public officials could be initially excused who had made a reasonable mistake of law in reliance on the U.S. Supreme Court, though as the legal invalidity of Roe became more widely known, the reasonableness of such a mistake would become less and less plausible…. 

Perhaps we and the bishops should begin with, and specifically encourage and participate in, nonviolent sit-ins to stop partial-birth abortions. Not that children partially born have a right to more protection than other unborn children, but the natural law tradition counsels active resistance to injustice only insofar as one has a reasonable hope of success without causing still greater harm. (For this reason, among others, violence must be absolutely excluded.)…

––Richard Stith
Valparaiso, IN 

The symposium dramatized the dilemma of those concerned, from a faith perspective, with the future of this Republic. 

Somewhere in Democracy in America, Alexis de Tocqueville joined the survival of the American system to popular confidence in the Supreme Court. The symposium’s careful and responsible analysis of the reasons for the erosion of confidence contributes to a discussion that can only grow more insistent in the years to come. Many thanks.

––(Most Reverend) Francis E. George, O.M.I.
Archbishop of Portland in Oregon 

 I strongly disagree with the underlying assumption of the symposium. Despite some legitimate grievances concerning some bad court decisions, I believe the judicial branch remains our “least dangerous branch.” You let the other branches of our government off too easily by asking the essayists to focus exclusively on the failings of the judicial branch…. 

Our governmental regime is suffering from a crisis of legitimacy, but your symposium sought to frame the issue in terms of a choice between democratic self-governance and judicial ukase. The issue should have been framed in terms of the appropriate role of government in a free society. The American experiment is not so much about democracy as much as it is about human liberty. Our Founding Fathers recognized that our inalienable rights to life, liberty, and property preceded all human legislation. They sought to create a government that would secure those rights. And by establishing limited, constitutional governments (federal and state), the Founders thought they could keep government from interfering with the way individuals choose to live their own lives. Over the course of the twentieth century, however, our social contract of strictly limited government has been severely breached and more and more of life’s decisions have become politicized. The American people resent this loss of control over their lives––and this is why the current American regime is in a crisis of legitimacy.

––Timothy Lynch
Reston, VA

Waving the Flag

Your correspondent has dispatched to Alan Jacobs (“Flags, Tradition, and Charity,” November 1996) the gift of a flag––the Stars and Bars––confident that he will be able both with devotion and with charity to display it for the Wheaton College Dixie Club. The Stars and Bars, you see, being the first national flag of the Confederate States of America, is wholly to be distinguished from the Southern Cross––also known as the Battle Flag––which is strictly a military banner. The Stars and Bars was designed by Nicola Marschall at the behest of the Confederate Congress; the Southern Cross was designed by General P. G. T. Beauregard in response to battlefield contingencies. 

One hesitates to remark the sundry other misjudgments of history that detract from Mr. Jacobs’ poignant musings on an unnecessary predicament. Perhaps his misgivings with regard to Southern symbols and his Southern heritage would be happily resolved were he to consider A Defense of Virginia (And Through Her of the South) by the redoubtable Presbyterian divine Robert Lewis Dabney, the pertinent poems of Father Abram Ryan, Catholic priest and poet laureate of the Confederacy, and the contemporary observations on history, slavery, and the American South by David Brion Davis and (especially) Eugene Genovese. Perforce Mr. Jacobs would discover that he is anguished only by misconceptions of the Southern tradition, and that these misconceptions have been foisted upon unsuspecting generations by the overzealous victors in 1865 and by uninformed or ideologically committed zealots since. 

Moreover, perhaps Mr. Jacobs would be comforted in apprehending that the resulting misconception of Southern purposes and practices has not only confounded him but also has confused and therefore misled generations of all Americans. The confusion amounts to nothing less than the loss of our actual patrimony, including a true understanding of our only original quest of a comprehensively just social and political order (see Anne Norton’s Alternative Americas and Genovese’s The Slaveholders’ Dilemma ), of our founding principles of self-government, and of inspiring examples of devout faith in the face of the ideological forces that Southerners confronted in the nineteenth century. Those forces, having prevailed over Southerners then, bedevil us all now. 

Indeed, if First Things finds itself compelled (wisely and courageously) to ponder “The End of Democracy?” a Southerner might be forgiven for suggesting that it manifestly is not “democracy” that is imperiled today––would that it were so. Rather, the peril is for those remnants of the republican institutions (including the Constitution) that were either damaged, destroyed, or destined for dismantling by the politicians of the 1860s and thereafter who knew which Southern flags were which, what the several Southern flags meant, why they had been unfurled, and why––if the god Demos were to prevail––the symbols and thus the principles of the fighting South had to be discredited. 

The long list of Supreme Court usurpations decried bravely and well by Messrs. Bork, Hittinger, Colson, Arkes, and George is the inevitable consequence of the purposes and the policies of the victors and the ideological heirs of the victors of Appomattox. Which is not at all, one must hasten to add, to diminish, let alone to condone, the admitted imperfections of the Southern past. Rather, it is to remark and to lament the gold that has been so carelessly and disastrously discarded with the dross, and also to suggest that the lead foot of a national (as distinct from a federal) tyranny, and especially of a national judicial tyranny, was made inevitable when Thaddeus Stevens and his cynical cohorts won and the Confederates were conquered. Now that even Virginians have shamefully forsworn their ancient credo––sic semper tyrannis !––and acquiesced in United States v. Virginia, what state, what sovereign of any sort, remains to defy Leviathan for the sake of liberty?

––David A. Bovenizer
Indianapolis, IN

…  When Alan Jacobs refers to the Stars and Bars, he is showing an ignorance of Southern history endemic to those who have not studied it. The Stars and Bars was the first national flag of the Confederate States of America. It appeared in 1861 and had three wide horizontal stripes: red across the top and bottom, and white through the middle. The canton was blue, and contained seven white stars arranged in a circle. If we took “a walk through the south side of Chicago with the Star and Bars on our (shirt) backs” as Professor Jacobs dares us to do, nothing unusual would happen. 

The flag Jacobs meant when he called it a symbol of “pain,” “racism,” and “causing our brothers and sisters to stumble”––the flag he compares with the Nazi swastika––is the Confederate Navy and Battle Flag. It is red, with thirteen white stars on a blue St. Andrews cross edged in white. (It is worth noting here that the St. Andrews Cross is the flag of Scotland, and was chosen by the South because it belonged to an agrarian country which also fought for independence from an overbearing government.) 

Professor Jacobs is remarkably concerned about symbolism, if somewhat indifferent to reality. He says “symbols have histories,” and, because white supremacists have carried it, he cites “racism” and “slavery” as the message symbolized by the Confederate Flag. Would he say that, because Madonna and Mapplethorpe have adopted the cross of Christ as their “symbols,” the cross now represents coarseness and obscenity and should be discarded by Christians? The enduring message of that ancient Scottish flag and the beautiful flag of the Confederacy is freedom from oppressive government…. 

I fly this beautiful banner at my home because I love it, and because there is a bit of the rebel in my tired old heart. I love it because it gives the soul a lift…  because it whispers, “None can own your spirit.” It does not speak of color; rather it touches the spark of independence which lives in us all. And when arrogant white supremacists, resentful blacks, liberal professors”or any others”would reduce this bright banner to a dark “racist symbol,” I must protest that only the most grievously ignorant, the most woefully confused, and the most mindlessly hostile would participate in that effort. 

––Mary L. Kaoy
Otis, OR 

 Professor Alan Jacobs presents a new and interesting argument in suggesting that his fellow Southerners strain Christian charity when they display the Stars and Bars. Perhaps so. But he is wrong when he says the flag “was created to serve as the symbol of an institution whose members… agreed about the moral and legal acceptability of slaveholding.” 

The Stars and Bars was the Confederate battle flag, created for purposes of battlefield identification, not the lesser known Confederate national standard against the display of which he might have made a moot case since it’s almost never flown today. And while there were virulent racists who fought under the Stars and Bars (as was also the case with the Stars and Stripes), one cannot accuse Southern soldiers of a blanket agreement on anything, including slaveholding. The record of their lives and letters proves otherwise. 

Professor Jacobs would have been more accurate to say that the Stars and Bars was the battle flag of armies that fought primarily to resist armed invaders so that their new nation might go about its business without molestation and in peace. 

 Those who fly the Stars and Bars intending to give offense surely sin against Christian charity. Those who take offense where none is intended may be guilty only of ignorance.

––Robert P. Hilldrup
 Richmond, VA 

I am a native New Englander living in Virginia, and as such I have developed a sympathy for both sides with regard to the strained feelings that still remain after