Articles on “judicial arrogance” and the “judicial usurpation of power” are not new. The following symposium addresses those questions, often in fresh ways, but also moves beyond them. The symposium is, in part, an extension of the argument set forth in our May 1996 editorial, “The Ninth Circuit’s Fatal Overreach”
The Federal District Court’s decision favoring doctor-assisted suicide, we said, could be fatal not only to many people who are old, sick, or disabled, but also to popular support for our present system of government.
This symposium addresses many similarly troubling judicial actions that add up to an entrenched pattern of government by judges that is nothing less than the usurpation of politics. The question here explored, in full awareness of its far-reaching consequences, is whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime . . .
Those were opening words of “The End of Democracy? – The Judicial Usurpation of Politics: (First Things 67 November 1996: 18-20), a controversial symposium of Robert H. Bork, Russel Hittinger, Hadley Arkes, Charles Colson, and Robert P. George, in which they discussed the rise of judicial tyranny:
The government of the United States of America no longer governs by the consent of the governed. With respect to the American people, the judiciary has in effect declared that the most important questions about how we ought to order our life together are outside the purview of “things of their knowledge.” Not that judges necessarily claim greater knowledge; they simply claim, and exercise, the power to decide. The citizens of this democratic republic are deemed to lack the competence for self-government. . . .
and the divorce of law from morality, and consequent failure of trust, that comes as a consequence:
Law, as it is presently made by the judiciary, has declared its independence from morality. . . . [M]orality — especially traditional morality, and most especially morality associated with religion — has been declared legally suspect and a threat to the public order. Among the most elementary principles of Western Civilization is the truth that laws which violate the moral law are null and void and must in conscience be disobeyed. In the past and at present, this principle has been invoked, on both the right and the left, by those who are frequently viewed as extremists. It was, however, the principle invoked by the founders of this nation. It was the principle invoked by the antislavery movement and, more recently, by Martin Luther King, Jr. It is the principle invoked today by, among many others, Pope John Paul II.
The stated purpose of the symposium was not to advocate “noncompliance to resistance to civil disobedience to morally justified revolution,” but to question the future prospects of a country host to “a growing alienation of millions of Americans from a government they do not recognize as theirs . . . an erosion of moral adherence to this political system” and “the displacement of a constitutional order by a regime that does not have, will not obtain, and cannot command the consent of the people.”
Mind you, this was written in November 1996. With the life of Terri Schiavo (and others in similar circumstances) literally at the mercy of our courts, it seems fitting to consider this symposium again.
See also: The End of Democracy? A Discussion Continued, First Things 69 (January 1997): 19-24.