A Question That Won’t Go Away Print
By Robert Royal   
Monday, 02 April 2012

In 1996, a symposium appeared in the journal First Things entitled “The End of Democracy? The Judicial Usurpation of Politics.” It seriously examined whether the wholesale departure from constitutional order had, in fact, led to the kind of regime in America that was no longer legitimate.

Strong brew, of course. Several of the magazine’s board members resigned. Even though they largely agreed with the descriptive side of the case, they reacted strongly to the stark conclusion that many Americans may no longer feel a need for loyalty to such a regime.

That symposium makes for good reading in light of the somewhat superficial arguments that swirled around the Supreme Court hearings on Obamacare last week. Sixteen years ago, it took a group of distinguished thinkers to point out the deep problems within our polity. Today, just about anyone who pays attention can see the large dimensions of the threat (two-thirds of Americans want the healthcare reform modified or repealed).

But even if the law is struck down, it’s only temporary relief for a deep-seated set of issues that will, beyond all doubt, soon be back to haunt us.    

According to reports, the justices already voted on Friday whether to void the individual mandate in Obamacare and, perhaps, the whole healthcare law. Justice Kennedy, the expected swing vote, weighed in heavily during oral arguments about the “high burden of justification . . . when you are changing the relation of the individual to the government.” He even suggested that judicial restraint might lie in simply voiding the whole thing, not trying to decide which of the 2700 pages might stand.

Justice Scalia had some fun, asking whether the government might next require us to eat broccoli, and Chief Justice Roberts wondered whether everyone will have to buy cell phones to report medical emergencies. It’s quite easy to mock powers government is now claiming, almost unconsciously, since limited government is an almost dead notion. When Nancy Pelosi was asked about the constitutionality of Obamacare, she replied, “You can’t be serious?”        

The Court was very serious last week, good news for civil and religious freedom. But there’s also a possibility that we may see the law voided on constitutional grounds and still face administration officials wedded to the notion that morally objectionable treatments are basic rights in “women’s health.” President Obama made a video for Planned Parenthood this week that put abortion in that slippery category.

The 1996 symposium shows why a single good decision now cannot undo decades of bad habits. The late Fr. Richard John Neuhaus characterized the debate thus: “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.”

Citing both the form and substance of decisions on matters like abortion and homosexuality, he compared them to the “long train of abuses and usurpations,” invoked by the Declaration of Independence:

The courts have not, and perhaps cannot, restrain themselves, and it may be that in the present regime no other effective restraints are available. If so, we are witnessing the end of democracy. . . .What is happening now is 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.

Behind this lay a series of judicial decisions forcing a choice: “God or country.”

For Robert Bork, another contributor, an additional problem lay in the fact that this was no mere passing state of affairs: “The idea that the Constitution should be interpreted according to that original understanding has been made to seem an extreme position. That is convenient for those who want results democracy will not give them, but the truth is that violation of original understanding ought to be the extreme position. . . . It seems safe to say that, as our institutional arrangements now stand, the Court can never be made a legitimate element of a basically democratic polity.”

Liberal observers of the legal system, of course, pooh-pooh such language. After all, these are simply discrete issues on which they’ve won. But in the symposium, Russell Hittinger exposed this line of reasoning for what it is, not a matter of isolated statues, but:

authoritative renderings of the fundamental law, such laws would be laws (1) that deny protection to the weak and the vulnerable, especially in matters of life and death, and (2) that systematically remove the legal and political ability of the people to redress the situation. A polity that creates and upholds such laws is unworthy of loyalty.

The Catholic Thing’s own Hadley Arkes, saw an even further threat that has become only too palpable in subsequent years: “It is one thing to say, as the courts already have, that the moral precepts of Christianity and Judaism may not supply the premises of the law in a secular state. It is quite another to say that people who take those precepts seriously may be enduring targets of litigation and legal sanction if they have the temerity to voice those precepts as their own and make them the ground of their acts even in their private settings.”

Finally, Robert George put the case strongly: since ancient times, it’s always been believed that an immoral law is no law and must be resisted – not “personally opposed,” and never tolerated. He cites John Paul II’s Evangelium Vitae: that when human dignity is disregarded, “democracy, contradicting its own principles, effectively moves towards a form of totalitarianism.”

And adds: “People of good will – of whatever religious faith – who are prepared to consider seriously the Pope's teaching in Evangelium Vitae cannot now avoid asking themselves, soberly and unblinkingly, whether our regime is becoming the democratic ‘tyrant state’ about which he warns.”

That question has not gone away and may be back – sooner and more urgently than we think.

Robert Royal is editor-in-chief of The Catholic Thing, and president of the Faith & Reason Institute in Washington, D.C. His most recent book is The God That Did Not Fail: How Religion Built and Sustains the West, now available in paperback from Encounter Books.

The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.

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