The November issue of First Things, the conservative monthly, features a symposium called “The End of Democracy: The Judicial Usurpation of Politics. ” Its introduction, by editor in chief Richard John Neuhaus, suggests that an unrestrained judiciary is seizing control of crucial sections of American life and taking decision-making power away from the democratic process and the American people. “If so, we are witnessing the end of democracy,” Neuhaus writes. Then, citing a papal encyclical on the supremacy of moral law over secular power, Neuhaus warns, “America is not and, please God, will never become Nazi Germany, but it is only blind hubris that denies it can happen and, in peculiarly American ways, may be happening here.”
The symposium asks whether Americans have a duty to commit civil disobedience or even “morally justified revolution” against such a “regime.” For the existing U.S. government may be not only undemocratic, but immoral. Neuhaus posits: “Law, as it is presently made by the judiciary, has declared its independence from morality.” If the conflict is between loyalty to state and loyalty to God, then surely duty to God comes first. “We are prepared for the charge that publishing this symposium is irresponsibly provocative and even alarmist,” his introduction declares.
Well, at least they were prepared. Although just published, the symposium has already generated anger, angst, and controversy. Peter Berger and Gertrude Himmelfarb have resigned from the magazine’s editorial board, and Walter Berns has resigned from the editorial advisory board. Others have independently written letters of protest — some of them, like Norman Podhoretz’s, quite heated. And it has given those of us in conservative circles something to talk about. (Members of the staff of THE WEEKLY STANDARD are intertwined with the dispute by familial bonds, professional relationships, and ties of friendship; our contributing editor J. Bottum works fulltime as associate editor of First Things.)
The First Things controversy is more than just a tempest in a conservative teapot. It raises one of the more interesting questions of the moment: Is the Right about to go anti-American? Already, many conservatives are profoundly disturbed by the calm way the American public seems to have accepted Bill Clinton’s character, and find themselves asking the same questions as Ross Perot: “Is there no sense of decency in this country? Is there no sense of honor? Is there no sense of shame?” Robert Bork’s Slouching Towards Gomorrah is number two on the New York Times bestseller list — a book in which Bork argues that America “is on the road to cultural disaster.” And now, along comes First Things, questioning the legitimacy of the American government itself.
Neuhaus, a Lutheran pastor turned Catholic priest who is on close terms with Pope John Paul II, has gone into all this with his eyes open. The idea for the symposium emerged after years of articles and discussions about the imperial judiciary, and following a three-hour brainstorming meeting of the First Things editorial board in June (Berger, Himmelfarb, and some others were not in attendance). The editors chose five authors to contribute to the discussion — Bork, Charles Colson, and the academics Russell Hittinger, Hadley Arkes, and Robert George. Peter Berger, the distinguished sociologist of religion and an old friend and collaborator of Neuhaus’s, argues that the respondents are only backing up the point that the American “regime” is illegitimate. “I don’t accept the idea that the issue is simply an exploration of the matter, though that’s the language,” Berger says. “It’s not a symposium. It’s a position paper with a chorus of papers to support it. . . . To explore whether the American government is legitimate is a slippery slope, and the most distasteful portion involves the mention of Nazi Germany.”
Actually, none of the respondents endorses fullbore civil disobedience or declares the government illegitimate, although Colson comes close. But a tone of crisis, a sense that history itself is moving in the wrong direction, does pervade the pages. And it is a tone mainstream conservatives have not used in a long while.
The contributors are troubled by several recent court decisions. In 1992s abortion-related Planned Parenthood v. Casey, the Supreme Court adopted a preference for the radical notion of autonomous individualism: “At the heart of liberty,” Justices Kennedy, Souter, and O’Connor wrote for the majority, ” is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Neuhaus argues this decision, among others, proves the judiciary has chosen to side with moral libertarianism in the culture wars and is busy imposing its will on the nation.
In 1996’s Romer v. Evans, the First Things contributors argue, the Supreme Court looked improperly into the psyches of Colorado voters who voted to prevent localities from adopting gay-rights statutes. The court decided these Coloradans were motivated by “animus” and declared their motives unconstitutional. “In other words,” Hitringer writes, “individual liberty is defined not merely by the kind of act or decision that one is free to engage in, but by immunity from a certain kind of motive or purpose on the part of the legislator.”
Finally, in the 1996 euthanasia case Compassion in Dying v. Washington, Judge Stephen Reinhardt’s majority decision for the Ninth U.S. Circuit Court of Appeals struck another blow for the notion of the autonomous self. Reinhardt argued that people with religious convictions are not free to impose their beliefs on others. But by declaring that, Hittinger argues, the court “excludes from the political process the objects of mutual deliberation that make political order desirable, indeed even possible. Desirable, because the culture-forming institutions cannot be sustained without common effort. . . . Possible, because once private individuals are allowed rights to use lethal force for vindicating justice in their own cause (as in abortion or euthanasia), it is difficult to see how even the most rudimentary foundations of the older political society — those that reserve the use of lethal force to public authority — still remain.”
Colson speculates on how religious conservatives will respond as the judiciary continues to usurp power to enforce its own “amoral libertarian regime.” Either traditional theists will be forced to abandon their religious beliefs, or, more likely, they will be forced to withdraw from public life and become what theologian Stanley Hauerwas calls “resident aliens” in America — no longer “concerned about the fortunes or misfortunes of a flawed Republic, no longer considering this land their country.”
Colson no longer puts much stock in the political process. He declares that the “putative alliance” between the religious right and the Republican Party offers little solution. But he says despair is premature. The country has not reached the point at which Christians should cease to swear allegiance to the United States. But that moment may be fast approaching, and in the meantime Christians should consider all options: “The fervent and ceaseless prayer of every Christian should be that the discussion of resistance and revolution remains an academic exercise.” But “we must — slowly, prayerfully, and with great deliberation and serious debate — prepare ourselves for what the future seems likely to bring under a regime in which the courts have usurped the democratic process by reckless exercise of naked power.”
It’s worth emphasizing here that Colson is a major figure in the evangelical movement, and those familiar with the scholarly literature generated by that movement (and by the orthodox Catholicism represented by Neuhaus, Hittinger, and George) say these sorts of questions are common. Indeed, this is just another chapter in a long-running debate in religious quarters over how to square duty to God with duty to nation.
Participants in this centuries-old discussion make a distinction that Americans are not prone to consider, one between the nation and the “regime.” Americans are accustomed to thinking that ours is a government of the people. But the word “regime” suggests that government is something placed over the people, in this case by arrogant judges. It is possible, with this distinction, to admire the American people (as Neuhaus does) and still declare the government illegitimate. The distinction means that the nation is not embroiled in a culture war, but has instead been the victim of a culture coup in which secularists have simply imposed their will through the courts.
Those who object to the symposium insist that the nation is not in such desperate straits and that it is reckless and foolish to question the “regime. ” In her letter of resignation from the First Things editorial board, Gertrude Himmelfarb agrees that the judiciary has vastly exceeded its proper powers. “But I do not at all agree that this raises the specter of the illegitimacy of the government,” she continues. Himmelfarb points out that Neuhaus’s contribution “cites the American Revolution as if we are now in a similarly revolutionary situation — an analogy that, in my opinion (and that, I believe, of the overwhelming majority of Americans) is absurd and irresponsible.” All the talk of “regime” is not proper political discourse and discredits, “or at least makes suspect, any attempt by conservatives to introduce moral and religious considerations into ‘the public square'” — an effort Himmelfarb supports.
First Things is a magazine about religion and the public square, and Neuhaus is a leading proponent of the idea that religion must play a larger role in political life. A certain number of people who regard the symposium as alarmist or worse will say it proves how dangerous it can be to bring a religious sensibility into close contact with politics. Those who apply religious principles directly to politics, their opponents will say, measure the political realm by moral criteria that are inappropriately abstract. They consider declaring government morally illegitimate when decisions don’t go their way. Thus, religion can breed apocalyptic extremism and zealous outbursts.
Berger thinks the symposium is a huge overreaction: “The first charge is that the courts have usurped power. But through American history other branches have historically usurped power. To conclude from that the system is illegitimate is absurd.”
Norman Podhoretz sees it as an outburst of anti-Americanism reminiscent of the anti-Americanism found among left-wing intellectuals in the 1960s. In those days liberals were the ones who sought to declare the American “regime” illegitimate. “I am appalled,” Podhoretz wrote to Neuhaus, “by the language . . . you use to describe this country, especially your own reference to Nazi Germany; by the seditious measures you contemplate and all but advocate; and by the aid and comfort you for all practical purposes offer to the bomb throwers among us.” Podhoretz, like others, fears the symposium could be seen as bolstering the case of the vigilante militias and other extremists on the right.
Neuhaus argues that no topic should be out of bounds for discussion and that the radical nature of the recent court crisis demands new types of thinking in response. This symposium is only the beginning of the discussion, he maintains. “Most people throughout history have lived under dubious regimes,” Neuhaus says. “It may well be that the end result of this discussion will be that we will have to get used to asking how you live in an order that is morally dubious and not amenable to change. This symposium will look like the last gasp of American exceptionalism.”
Modern American conservatism rose by changing its character. What had been a prosaic, incrementalist political clique became a visionary, ideological creed. So it’s perhaps fitting that if conservatism rose to political power by wedding itself to abstract ideas, it should also withdraw from political power because of that tendency.
Long gone is the thing that used to be known as the Conservative Temper. This is the mood that fears change, distrusts abstract notions, reveres the here and now, and is obsessed by historical continuity. That style of conservatism was extinguished, many conservatives would say, when the unconscious assumptions upon which it was based were challenged by the 1960s. Suddenly the just prejudices that nobody had much thought about — for example, that the two-parent heterosexual family is naturally superior — were called into question. Conservatives could no longer just mutely cherish and preserve. They had to argue for propositions that had previously been unquestioned. They needed to put into words things that had been accepted as given, and they needed to apply abstract ideals to political debate. Some secular conservatives took the ideals of the free market and applied them to politics. Some religious conservatives brought their religious beliefs more closely to bear on political issues.
The new conservative style, based on conscious fealty to abstract ideals and beliefs, is not necessarily bad. But it does contain its own dangers. What happens, for example, when the nation doesn’t live up to the high ideals and shows no prospect of doing so? Maybe the people themselves are corrupt. Maybe they have become morally deadened, quite untroubled by the fact that 1. 3 million abortions are performed every year. Or maybe the people are not corrupt, but are still in the sway of a corrupt elite whose hold on the leading institutions gives it the power to determine the course of the nation. What happens, in short, when the conservative finds he loves his ideals more than his country?
The first thing that happens is that the conservative (maybe it is more accurate to call him “orthodox” because of his love of abstract ideals) starts proposing radical solutions in an effort to jerk his country back to where he thinks it should be. Radical revolution is the opposite of the original Conservative Temper. But revolutionary talk has become common in conservative circles. Robert Bork has a proposal that would radically alter the constitutional order, one that would allow the Congress to overturn by majority vote any Supreme Court decision. Other conservatives would pass a constitutional amendment doing away with judicial review.
The other thing such people do is hold debates about whether they can support their government. “Jefferson was too reckless when he said the ground of democracy needed to be watered every thirty years by the blood of revolution,” Neuhaus says, “but we should raise fundamental questions and look things over from time to time.” That sentiment in favor of a return to first principles is the antithesis of the Conservative Temper.
Religious thinkers who are active in the public square do not want to avoid debates about First Things. And they will dwell on when the sovereignty of God demands breaking off loyalty to nation. They will cite, as the contributors to the First Things symposium do, the many different ways theologians have addressed this question over the centuries. They will declare, as Neuhaus does, that the phrase “God and country” should not come tripping off the tongue because the two are not necessarily linked.
If conservatives feel that they love their ideals more than their country, then you will see them withdrawing from public life, as Colson warns religious conservatives will. If they find that the revelations about Bill Clinton’s character produce no response in a public too deadened to care about certain standards, then they will become more interested in preserving small communities of virtue than in influencing the entire nation. If they decide that the political elites are impervious to reason, or simply ignore reason, then they will abandon reasoned argument and simply deliver caustic commentaries on their opponents’ unreason.
That is the trend Washington Times columnist Tod Lindberg noticed in Antonin Scalia’s recent dissents. Such a conservatism won’t present a very happy face to the world. It would console itself with the glories of transcendence and hope these could compensate for its abandonment of the here and now.
American conservatism is far from going down this road. Many conservatives still think history is moving in their direction. They interpret Clinton’s resurgence as an odd confirmation of the conservatism of the time; he has adopted many conservative-sounding policies and is more comfortable with being religious in public than any president since Jimmy Carter. They note that while the judiciary is headed in the wrong direction on abortion and gay marriage, it has been handing down comforting judgments on school choice and the role of religion in public (and on affirmative action). They retain faith in the wisdom of the American people, in their ability to eventually correct the errors of their courts, and in the basic health of the American government.
But the First Things symposium, while still an outlier, may also be a harbinger. American conservatism/s based on abstract ideals, and if there is a wave of disenchantment on the right it will take the form we see here. It will call America into question in the name of higher things.
The Republican party proudly calls itself the party of ideas. Well, Republicans had better learn to take the good with the bad. Idea-driven people are quick to abandon political parties. They have been known to fly off the handle. And intellectuals sometimes blithely engage in discussion of civil disobedience and revolution, as if talk of these horrendous subjects had no real-world consequences.
Two years ago, in the midst of the controversy over The Bell Curve, one writer did warn his fellows that not all subjects are fit for public discussion. “America is not an academic seminar limited to a few utterly dispassionate and socially disengaged intellectuals interested only in ‘the truth’,” he declared. That writer, of course, was Richard John Neuhaus.
By David Brooks
