National Catholic Register


‘The End of Democracy?’

BY Jim Cosgrove

January 12-18, 1997 Issue | Posted 1/12/97 at 1:00 PM


Responding to their critics, the editors of First Things featured the following statement in the January 1997 issue of the journal (excerpted).

We did not choose this controversy. It was started by a judiciary, and most particularly by a Supreme Court, that has increasingly arrogated to itself the legislative and executive functions of government. In more recent years, the judiciary has disregarded and nullified the democratic deliberations and decisions of the American people on how we ought to order our life together, which is the subject matter of politics. That is what is meant by the judicial usurpation of politics. The Supreme Court itself, notably in the Casey decision of 1992, has raised the question of the legitimacy of its rulings, and called upon the people to ratify that legitimacy by following its lead. We believe the governed have not given their consent to being governed by the courts, unless ignorance and indifference are construed as consent.

At question here is not merely a series of errors, even appalling errors, in particular court decisions. If the judiciary continues on its present course, if it does not restrain itself, and if there is no way to restrain it, we are witnessing the end of democracy. And when we speak of the end of democracy it is not inappropriate to allude to the authoritarian and totalitarian alternatives to democracy, no matter how uncomfortable such allusions may be.…

[W]e note only that a government, such as ours, that makes its claim to legitimacy on the basis of democratic theory and practice raises a question about its legitimacy when it violates democratic theory and practice. The judicial usurpation of politics is a grievous violation of democratic theory and practice.…

Perhaps the most ominous development is the growing explicitness with which the judiciary rejects any moral law superior to the law of the state, as defined by the courts. The Supreme Court decisions analyzed in detail in the November symposium would seem to declare that the Judeo-Christian moral tradition has no standing in our polity. More than that, the court suggests in Romer that citizens whose vote is motivated by “an ethic and morality which transcends human invention” are illegitimately imposing their religion upon others. That claim figures prominently also in circuit court decisions on assisted suicide that are now before the Supreme Court.

Almost all Americans claim adherence to an ethic and morality that transcends human invention, and, for all but a relatively small minority, that adherence is expressed in terms of biblical religion. By the strange doctrine promulgated by the courts, Christians, Jews, and others who adhere to a transcendent morality would, to the extent that their actions as citizens are influenced by that morality, be effectively disenfranchised. It is a doctrine that ends up by casting religious Americans, traditionally the most loyal of citizens, into the role of enemies of the public order. We cannot help but believe that the courts do not intend that consequence. They must be given every possible encouragement to abandon the reckless course they are presently pursuing.…

Some critics claim that the symposium and its reverberations prove once again that religion in the public square is a subversive force. There is a strong element of truth in that. Certainly authentic religion cannot be captive to any political or ideological movement, whether of the right or of the left. The crisis of the judicial usurpation of politics is not created, however, by religion's problem with the judiciary. It is created by the judiciary's problem with religion. Indeed, it is created by the judiciary's problem with being held accountable, in accord with the will of the people, to any judgment other than its own. In Casey the court worried about the legitimacy of the law that it is making. It is right to worry. It should be more worried than it apparently is. If, as we hope, we are not on the way to the end of democracy, the judiciary will restrain itself, or it will be restrained.

Readers can obtain the full text of the First Things November symposium as well as the letters and statements by critics and supporters of the symposium by contacting The Institute on Religion and Public Life, which publishes First Things:

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