First Things November 1996 symposium, The Judicial Usurpation of Politics, might as well have been written today:
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.
Americans are not accustomed to speaking of a regime. Regimes are what other nations have. The American tradition abhors the notion of the rulers and the ruled. We do not live under a government, never mind under a regime; we are the government. The traditions of democratic self-governance are powerful in our civics textbooks and in popular consciousness. This symposium asks whether we may be deceiving ourselves and, if we are, what are the implications of that self-deception. By the word “regime” we mean the actual, existing system of government. The question that is the title of this symposium is in no way hyperbolic. The subject before us is the end of democracy.
Since the defeat of communism, some have spoken of the end of history. By that they mean, inter alia, that the great controversies about the best form of governance are over: there is no alternative to democracy. Perhaps that, too, is wishful thinking and self-deception. Perhaps the United States, for so long the primary bearer of the democratic idea, has itself betrayed that idea and become something else. If so, the chief evidence of that betrayal is the judicial usurpation of politics.
Politics, Aristotle teaches, is free persons deliberating the question, How ought we to order our life together? Democratic politics means that “the people” deliberate and decide that question. In the American constitutional order the people do that through debate, elections, and representative political institutions. But is that true today? Has it been true for, say, the last fifty years? Is it not in fact the judiciary that deliberates and answers the really important questions entailed in the question, How ought we to order our life together? Again and again, questions that are properly political are legalized, and even speciously constitutionalized. This symposium is an urgent call for the repoliticizing of the American regime. Some of the authors fear the call may come too late.
The emergence of democratic theory and practice has a long and complicated history, and one can cite many crucial turning points. One such is the 1604 declaration of Parliament to James I: “The voice of the people, in the things of their knowledge, is as the voice of God.” We hold that only the voice of God is to be treated as the voice of God, but with respect to political sovereignty that declaration is a keystone of democratic government. Washington, Madison, Adams, Franklin, Jefferson, and the other founders were adamant about the competence—meaning both the authority and capacity—of the people to govern themselves. They had no illusions that the people would always decide rightly, but they would not invest the power to decide in a ruling elite. The democracy they devised was a republican system of limited government, with checks and balances, including judicial review, and representative means for the expression of the voice of the people. But always the principle was clear: legitimate government is government by the consent of the governed. The founders called this order an experiment, and it is in the nature of experiments that they can fail.
The questions addressed have venerable precedent. The American experiment intended to remedy the abuses of an earlier regime. The Declaration of Independence was not addressed to “light and transient causes” or occasional “evils [that] are sufferable.” Rather, it says: “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government and to provide new Guards for their future security.” The following essays are certain about the “long train of abuses and usurpations,” and about the prospect—some might say the present reality—of despotism. Like our authors, we are much less certain about what can or should be done about it.
The proposition examined in the following articles is this: 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. The Supreme Court itself—notably in the Casey decision of 1992-has raised the alarm about the legitimacy of law in the present regime. Its proposed solution is that citizens should defer to the decisions of the Court. Our authors do not consent to that solution. The twelfth Chief Justice of the Supreme Court, Harlan Fiske Stone (1872-1946), expressed his anxiety: “While unconstitutional exercise of power by the executive or legislative branches of the Government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of restraint.” 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.
I spoke with Charlie Camosy recently, and he commented on the strangeness that is Congress’s obsession with, on the one hand, party-obsessed pitched battles, and on the other, deference to executive power in most of the ways that are of truly grave importance. In short, the legislative branch hasn’t sought to check the executive branch for a very long time. And no one is checking the judicial branch.
A central reason for the political anxiety of American life since the end of the Cold War might be that “checks and balances” seem to no longer be in effect.