First Things, a “Survey of Religion and Public Life” edited by Father Richard John Neuhaus, caused a stir in the academic and journalistic communities when it posed the question, “The End of Democracy?” in its November 1996 issue. Going beyond the debate over judicial activism in the United States, the symposium questioned whether or not “conscientious citizens can [any] longer give moral assent to the existing regime.”

A debate, or more properly a conversation, about the issue was the goal. What resulted was an often hysterical argument over what critics perceived to be intemperance and recklessness in questioning the legitimacy of the American regime. Some members of the both the journal’s editorial board and editorial advisory board resigned; fellow conservatives criticized the symposiasts for things they never said.

The argument warranted not just one, but two books looking back at the original proposition, the subsequent reaction and some retrospection: The End of Democracy? The Judicial Usurpation of Politics: The Celebrated First Things Debate with Arguments Pro and Con by Richard John Neuhaus (Spence Publishing, US$11.95) and The End of Democracy? II: A Crisis of Legitimacy, edited by Mitchell S. Muncy (Spence Publishing, US$12.95, 287 pages).

The End of Democracy? (EOD) includes the original symposium (Robert Bork, Russell Hittinger, Hadley Arkes, Charles Colson, Robert George) and a follow-up symposium from the January 1997 First Things (William Bennett, Midge Decter, James Dobson, Mary Ann Glendon, John Leo), as well as some of the original reactions. The End of Democracy? II(EOD II) includes new essays from Arkes, George, Hittinger and Neuhaus, plus new ones looking at the historical antecedents of judicial usurpation and American-specific constitutional issues.

In one such essay George W. Carey summarizes this whole debate about the “crisis of self-government” succinctly: “The old regime … is dying. It has been mortally wounded by an opportunistic attack at a vital point that totally distorts its allocation of powers and authority … the attacking forces have provided none of the rationale and justification for a new regime …”

We have moved, Arkes noted in EOD, from a society where “the moral precepts of Christianity and Judaism may not supply the premises of the law in a secular state,” to where “people who take such precepts seriously may be enduring targets of litigation and legal sanction …” Hittinger notes the courts, having usurped power from the legislature, have made the government unlivable for people of faith. Thus, Colson says “all believers” must “ask sobering questions about the moral legitimacy of the current political order and our allegiance to it.” Put most simply, are believers still part of the “We the people,” or has democracy become a “tyrant state,” as George put it?

Critics accused the editors/symposiasts of supporting treason and advocating rebellion. Far from it. As Colson said, “We dare not at present despair and advocate open rebellion. But we must – slowly, prayerfully, and with great deliberation and serious debate – prepare ourselves for what the future seems to bring.” What the editors sought was such a debate, and to bring attention to not just the issue of judicial activism but how the government and the role citizens play in it, are affected by this usurpation of power.

For as George noted, in upholding the 1992 Casey decision, Justices Souter, O’Connor and Kennedy “called upon American pro-lifers to stop their resistance to legalized abortion and accept ‘a common mandate rooted in the Constitution.'” That is, shut up and accept abortion on demand. As the editors say in EOD, the illiberal courts do not allow the polity to do what a properly functioning democracy does: have an open debate about issues, persuade one another and change their minds. But once the courts have spoken, as they do on an increasing number of important issues, the debate is over. “Serious damage” is done to democracy, a problem compounded by the fact, as Budziszewski notes in EOD II, the “unelected elite” who decide “the most important questions about how we shall live” hold “the moral traditions of the people in contempt.”

In EOD II, Frederick Vaughan examines the roots of judicial usurpation. He finds it in John Austin and his 19th-century essay The Province of Jurisprudence Determined. Austin thought judges were better legislators because their laws were more just than those of “avowed legislators.” This is because legislatures can only create general rules and by reason of this universality, the law is deficient. The failure to accommodate particular circumstances makes the judiciary not merely a necessary check and balance to legislative decision-making but superior in creating law.

When this judicial philosophy is “armed with a constitutional bill or charter of rights that calls for ‘equal protection of the law,'” Vaughan says, “the temptation to overreach the strict intention of the legislature becomes virtually irresistible.” Vaughan finds one ominous example of this happening in the Vriend decision where the Alberta Court of Appeal and Canadian Supreme Court wrote into Alberta’s Individual Rights Protection Act something the legislature explicitly never intended: the inclusion of “sexual orientation” as a protected class. In Vriend, a private Christian college that excluded practicing homosexuals from employment was found to be denying a open homosexual’s Charter rights when they terminated his employment.

Vaughan’s solution is for judges to turn away from Austin’s thinking and restrain themselves. But that is unlikely to happen anytime soon. Nonetheless, this is not a mere academic debate, for the stakes are too high. What is the role of the believer, when as the editors note in EOD, “The legal killing of millions of unborn children, the extension of that license to kill the sick and elderly, the redefinition of marriage and family, the unlimited tolerance of pornography, the exclusion of religion from public life – these and others are what Lincoln called the vital questions affecting whole people,” are removed by judicial fiat from “democratic deliberation and decision”? What happens when the courts recognize no law higher than the ones they create?

The remedies proposed include “noncompliance to civil disobedience to organized resistance to justified revolution.” But this debate seeks to begin a discussion that will result in the reining in of the judiciary before the aforementioned remedies become necessary. Robert Bork, for instance, suggested allowing a two-thirds majority of the elected legislature to overrule Supreme Court decisions although he has since had second thoughts about his proposal.

The symposium was a “reflection” in the “tradition of moral and political thought about legitimate responses to illegitimate government,” all while noting the United States (or Canada for that matter) has not yet reached that point. As Arkes notes in EOD II, reflection itself is important because without it “the moral reflexes” are “dulled.”

Neuhaus concludes his essay in EOD II with the hope the debate will help people clearly understand “our present crisis” so a remedy can be found. If one isn’t found, “If it cannot be remedied, we are indeed discussing the end of democracy – this time without the question mark.”

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