In recent months, a heated debate has raged in conservative circles regarding the health of the current political order. A symposium of writers in the November issue of First Things, a conservative journal on religion and public life, sparked the controversy by seriously challenging the legitimacy of the American government. Pointing to the recent expansion of judicial power and the subsequent dissolution of the democratic process, they suggested that the nation may no longer be genuinely governed by and for the people. In this issue, the Yale Free Press enters the fray and considers whether or not America has come to an end.
The label “radical” is nothing new to Father Richard John Neuhaus, editor-in-chief of the conservative journal First Things. Indeed it is very old, for before he was Fr. Neuhaus, intellectual leader of the conservative Christian political resurgence, he was (like so many others) a 60s radical. While Fr. Neuhaus’ former radical leftism had nothing whatsoever to do with the publication of the controversial symposium on “The End of Democracy” in the November issue of First Things, and while the position taken by the editors in this symposium differs from the anti-establishment radicalism of the 60s, both in substance and in degree, the parallels and the irony still remain.
The authors and editors are by no means like the “radicals” of that great misguided generation preceding our own. The motivation for such comparisons is nothing more than the question raised in First Things: might our regime be approaching a state of illegitimacy? The editors went to great lengths to make it clear that they do not believe it is so at this time, and they most certainly do not advocate the violent overthrow of the federal government. Indeed, the editors and authors who participated in the symposium did not even suggest civil disobedience as a necessary response to our government.
What then was the source of the scandal that led members of the publication’s
own editorial board to resign? Why did authors in such various publications
as National Review, New Republic and Commentary not
only disagree with the opinions expressed in the issue, but condemn the
entire symposium as “reckless,” “irresponsible,” “insidious”? What unwritten
rule did this symposium violate? And why was the reaction on both the right
and the left so extreme?
This argument, that the courts are usurping legislative power and thereby ending democracy, is then not new. It is a position grounded in the principles of the American regime. America is, or at least claims to be, a democracy. In a democracy political questions are decided by the people, not by the courts. This argument is too mundane to be the source of the most strenuous objections to the First Things symposium.
What is the real source of objection? First, there is a great deal of concern about the potential implications of this argument. If we are a democracy, and therefore our government gains its legitimacy from the people, by usurping the power rightly belonging to the people the courts risk the very legitimacy of our democracy. Many object to this position because it invokes the possibility of systematic disobedience. However, the position is not really all that controversial. The illegitimacy of which they speak is a weak illegitimacy, so to speak. It can be repaired fairly simply and does not imply extreme action. It is one problem within the system that does not corrupt the whole.
It is not my intention to suggest that the arguments concerning judicial usurpation are not valid—they are. Nor should we doubt the seriousness of these problems. Yet Mr. Rochester rightly points out that there is another concern, a concern that is not expressed on the cover of First Things, but one that, although tacit, should be enough to strike terror into the hearts of every prudent reader. This argument we shall call the argument for a strong sense of illegitimacy. It is strong both in terms of how we shall define what it would mean for a regime to be illegitimate, and also in terms of how we might respond to that regime.
The argument is almost as simple as its conclusions are disturbing. It begins with a claim that is part of the shared belief of nearly every American, certainly all those who share any traditional form of Judeo-Christian faith. This belief is that there is a law, an order, that transcends all others, and by which all laws may be judged. This order can be spoken of as a natural law or a given moral order. It does not matter what one calls it, or even necessarily where it comes from. The point is that it exists prior to the state, and is binding upon the state. It is the natural law that allows us to assert that Hitler’s Germany was wrong, regardless of whatever laws it may have passed. Without positing such a transcendent moral order, one can appeal to no right beyond the laws of a given society. It is important to understand that at this point we are not concerned with what the content of the natural law is (although we assume genocide is a violation of that law), but only that it exists.
This argument is one that itself refuses to become legalistic. It places
the question of the American regime’s legitimacy beyond the academic realm
of constitutional jurisprudence, and even beyond the jurisdiction of democracy.
If any action of the government, regardless of the government’s form or
constitution, and even irrespective of the consent of its people, violates
this natural law, that action is illegitimate, and the legitimacy of the
entire regime is endangered. Indeed, if the government continues on a course
that is contrary to the moral order it may lose all its authority to rule,
thus becoming tyrannical.
To compare the American regime to Nazi Germany is uncomfortable and offensive to many. However, it seems that for many Americans conscience would indicate that such a comparison is not ridiculous. For most, if not all, of the authors who contributed to the discussion in the pages of First Things, and certainly for myself, the fact that 4400 abortions are performed daily in this country, not only without opposition by the federal government but with its support, may warrant such analogies. For it is believed that this reality translates into the government’s sanction of 1.6 million murders in the last year, and over 20 million in the years since Roe became the law of the land.
This debate is not just about a single injustice such as abortion; for
those who share the principles held by the editors of First Things,
the litany of crimes against natural law and the human flourishing which
that law commands the state to serve is long. A sampling of the kind of
intolerable evils believed by the editors of First Things to threaten
this regime’s legitimacy include: “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,
[and] the exclusion of religion from public life” (FT Jan. ’97).
The Supreme Court gives us no such hope. In Romer the Court declared exactly the opposite, saying that persons such as the editors of First Things, myself, and even Mr. Rochester, whose political life is motivated by “an ethic and morality which transcends human intervention,” are wrongly imposing their religion upon others. It seems that in the eyes of the Court there is no higher law than its own, that is, than the Constitution, a “human invention” which they interpret. Further, it seems that the governing elite share the view of the Court. It would be impossible here to make a complete argument against the optimistic possibilities Mr. Rochester will point us toward, but something must be said. Regardless of its moral legitimacy, the current situation profits those in Washington and the economic establishment, and suits the tastes of the cultural gurus who wish to remain powerful in our society. Given this ideological corruption of the government it would seem that something at least akin to a radical reform would be necessary to correct the ills we have discussed. Unfortunately, it is unlikely that a comfortable and entertained populace will act unless motivated by some unforeseeable and dramatic catalyst.
Believers in legitimacy argue that America retains the potential for reform: we can be good citizen-activists, and we can elect a conservative President in four years and hope that he will have the opportunity to appoint three good Justices, who will proceed to overturn Roe v. Wade and thereby restore the republic. This optimism is both vain and irresponsible. If the annual murder of 1.6 million children is at stake, how can we justify biding an indefinite amount of time? King George himself had free will enough to have second thoughts about taxation without representation. Unfortunately the likelihood of reform in our regime is similarly dubious.
The conclusion that is facing us then is one that the editors of First Things will dare only to suggest. If our government is not already illegitimate altogether, it is pursuing policies that could make it so as they continue to be compounded. It is then the duty of moral men who recognize the higher law to make difficult decisions. First, the example of the Founding Fathers should be followed, exhausting every legal means offered by the kings of our regime. If this continues to be ineffective, as it has in recent years, the next step is to pursue peaceful civil disobedience. The day may come when some citizens will find themselves no longer able to pay taxes to support the activities of this government in good conscience. Whatever the coming years and decades bring, prudence must be what separates the moral citizen from the radical revolutionary. This does not mean, as Mr. Rochester would suggest, that we should be so cautious, so frightened, to avoid challenging the legitimacy of a regime that acts in illegitimate ways. For it must be understood that prudence must be employed as an extension of unwavering principle. There may be a time in which radical measures are the only right response to a radically wrong regime.
—Christopher Thacker is a junior in Davenport College
I must confess, in the last issue of the Yale Free Press I took great pleasure in exposing the intellectual imprecision and confusion that all too often characterizes the liberalism which, sadly, now reigns on this campus. It is with an equal degree of displeasure, however, that I now find myself forced to turn my guns toward my friends on the Right.
Nonetheless, I believe my criticisms to be justified, and if I am fortunate, constructive as well, for I fear that these conservatives are pointing us down a path as misguided as it is dangerous. The editors and contributors to the symposium in First Things, as well as their apologists, of which my friend Mr. Thacker is only one, have reasoned inconsistently throughout this debate, a failing, I imagine, that is more a product of untamed passion that inferior intellect. Whatever the case, these individuals are mistaken in suggesting that the American government is “illegitimate,” and at the same time, they are undermining the conservative majority that would be necessary to reform it.
The most striking problem with their argument can be located in the symposium’s title: “The End of Democracy?” Ultimately, the authors of First Things are not motivated by the dissolution of American democracy, but by its failure to conform to some universal standard of justice. Nonetheless, I fully agree that the judiciary has over the last 60 years taken many strides to subvert the democratic process in this country. Again and again, Americans are finding it increasingly difficult, and in some cases impossible, to have any say over those moral and political issues which are of greatest concern to them.
If the courts were making their decisions on the basis of authority granted them by law, then our indignation would largely be out of order. But this has not been the case. Instead, our judges are constantly overriding the decisions of the people, legislating their own “culturally elite” preferences, and in short, exercising powers that they have unjustly declared to be their own simply by force of will. Consequently, the fundamental principles of self-government on which this nation was founded are now being undermined. In this sense, and in this sense alone, we could then reasonably ask whether or not American democracy has come to an end. Indeed, it would appear that this country is no longer governed by the consent of the governed.
If this had been the argument made by Neuhaus and friends, then most conservatives would no doubt have been sympathetic—but this observation should not strike anyone as terribly novel inasmuch as many conservatives have been saying similar things for nearly 25 years.
However, First Things did not stop there. Instead, the authors go on to claim that the conditions of legitimacy do not ultimately rest upon the consent of the governed, but rather in a divinely approved moral law to which all men and governments are subject. Accordingly, when civil laws violate this higher law, men and governments have a moral obligation to oppose them, even when they are democratically sanctioned. As one contributor to the symposium writes, “Laws which violate the moral law are null and void and must in conscience be disobeyed.” In other words, Caesar can rule, but only with God’s permission.
Herein lies the inconsistency, and perhaps even the implicit motive, behind the First Things symposium. The essential issue is not the end of democracy or the judicial usurpation of politics but a government which the writers now understand, particularly in regard to abortion, to be in violation of the moral law. What if the current laws pertaining to abortion, euthanasia, homosexual marriage, and so on were a product of the legislature and not the judiciary, as is the case in most of Western Europe? Suppose, for instance, the Supreme Court overturned a state law that permitted abortion. Do we honestly think that the editors of FirstThings would go up in arms and declare the regime illegitimate? Probably not.
I make these points not because I totally disagree with the First Things conservatives, but because they have unfairly equivocated on what they mean by legitimacy. As a Jew, I also believe in a higher law—although it of course differs from the Christian understanding. Moreover, I agree that many of the nation’s laws are in violation of this moral law and that Jews, Christians, and, indeed, all believers ought be disturbed by them. But it is quite another things to “ask sobering questions about the moral legitimacy of the current political order and our allegiance to it,” as one of the contributors to the symposium thinks.
First Things is not entirely to blame for their imprecision. From the Revolution to the present day, the question of legitimacy has always been a difficult question for Americans. This confusion is understandable because our nation is founded in some sense on a confusion, although perhaps a salutary one. On one hand, we believe that governments “are instituted among men, deriving their just powers from the consent of the governed,” but on the other hand, we believe that governments derive their authority by the “Laws of Nature and Nature’s God.” We uphold that man is born in freedom and that governments exist and acquire their legitimacy by preserving that freedom, but we also uphold that man is born subject to a higher law and that governments exist and acquire their legitimacy by conforming to that law. We maintain that the fundamental fact about man is his natural right, and at the same time that the fundamental fact about man is his natural duty. America is based on two different and often antagonistic sources, Enlightenment Rationalism and Biblical Faith, and if I might go even deeper, Athens and Jerusalem. This is the delicate balance, or confusion, behind the great American experiment.
This experiment was bound to run into difficulties because it relied upon hybrid conceptions of important moral and political categories such as “right,” “nature,” and “law.” For example, religious believers maintained at the time of the founding, as they still do, that the duties of man precede his rights, and that the latter are in fact derived from the former. However, the more secular members of society, some of whom included the founders themselves, believed that the rights of man are prior, both in time and in sanctity, to his duties. Every high school student knows the common formulation of this: each American has a duty or responsibility to respect the rights of his fellow citizens.
For many years, believers and non-believers were able to sustain this strange and often confusing contract. In the early history of the republic, due to the strong religious character of the nation, men of faith felt confident that the moral law would guide political life, even though the government itself was not explicitly founded on theological principles. The one exception to this, of course, was the evil institution of slavery.
However, history has proven that these men were perhaps naïve to take this religious presence for granted. Over time, the nation has become increasingly hostile to traditional religious and moral principles of any sort. As a result, serious Christians and Jews find themselves isolated from the political discourse, the public neither wanting nor even admitting their beliefs into the public square. This was perhaps best revealed in Romer v. Evans, in which the Supreme Court essentially ruled that religion—and for that matter any transcendent moral value—no longer has any role to play in public life.
There can be little doubt that this growing opposition toward religion will spell trouble for this nation in the years ahead—this is a peculiar phenomenon in a culture which supposedly praises itself for its tolerance, humanity, and open-mindedness. We cannot forget that Biblical Faith constitutes one of the fundamental roots of American democracy. Without it, our way of government becomes imperiled as well as unintelligible. John Adams understood this well when he said that “our Constitution was made only for a moral and religious people. It is wholly inadequate for any other.”
I am happy to concede these points to First Things and its defenders. We certainly have fallen off the proper path. But the American experiment has not failed. Experiments by their nature are messy and involve mistakes, but most importantly, they require hopeful men who possess the strength to restore the project when it has been derailed. The editors at First Things reveal their underlying un-conservatism by forgetting that our entire history has been littered throughout with instances of injustice and evil. Each case of wrongdoing, however, did not undermine the government’s legitimacy but instead provided the grounds for civil argument and due process. Only in 1861 did injustice provide the basis for armed violence.
Neuhaus and friends also forget their history when they overlook the simple fact that they would be hard pressed to provide an example of a more decent, courageous and prosperous people in the entire history of man. Even when our many ills are counted, America is still one of the greatest achievements of all time. If these conservatives know of a better place to live in this world, I remind them, with a strange tinge of irony, that they of course enjoy the liberty to leave. But, in spite of their clamor and indignation, I imagine that they will stay put.
As the founders understood, the burden of proof must fall on the party that determines “to dissolve the political bonds which have connected them with another.” In other words, those who would declare the government illegitimate must demonstrate convincingly that the current political order cannot be corrected from within. This standard is far from radical, and in fact is consistent with even the most orthodox theology.
This argument was not made by the writers of First Things because it would have required them to transcend the bounds of reason. With the intellectual and political collapse of modern liberalism, a Republican majority, and a nation slowly moving in a conservative direction, we cannot in good faith conclude that the current government is irreparable. If conservatives are to demonstrate any respect for both pillars of our unique system of government, then we must allow for change within the democratic process, even if this means that unjust laws remain temporarily intact.
First Things was deeply mistaken to intimate that the government is illegitimate. Arguing that some of our laws are unjust is a far cry from challenging the authority by which they came into being. As Gertrude Himmelfarb has written, “Those who cannot, in good conscience, condone legal abortion [and other such practices] have the moral as well as legal right to press their case and, if it goes against them in a properly democratic manner, they may, subject to the penalty of the law, have recourse to the alternatives mentioned in First Things, ‘ranging from noncompliance to resistance to civil disobedience to morally justified revolution.’” But such men do not have the grounds to argue that the government as a whole has forsaken its authority to rule. For this proposition must be motivated more by passion than reason.
Mr. Thacker charges me with unwarranted optimism. I can only respond that he is unduly pessimistic, something that is partly understandable when I remember that he has spent the last three years at Yale. But, thank God, Yale is not Country. Moreover, conservatives are bound toward a certain sort of cynicism, given their view of man and politics. This pessimism can devolve into despair and then violent outrage when God and the moral law are invoked. It is precisely this sort of political passion or thumos that the founders wanted to soften, a decision that has proven to be very wise in light of the disasters that have resulted from the other major revolutions of the modern age, and it is a lesson that the editors of First Things ought to have heeded.
I also fear that First Things could be guilty of self-fulfilling pessimism. In the years ahead, as these men grow less reluctant to throw around such bold and radical words, it will become increasingly difficult to maintain the current conservative majority. Neuhaus and friends may not agree with or even care for many who consider themselves part of this majority, but such indignation is politically imprudent, especially when one considers all that is at stake. The current majority on the Right, consisting of social conservatives, mainstream Republicans, ideological libertarians, religious believers, and supply-siders, have one common enemy: liberalism. If this coalition can be kept together, the editors and contributors at First Things can be sure that the state will remove itself form those areas that currently are the focus of their anger. However, continuing to challenge the legitimacy of the government can only destroy this majority and our mutual hope for restoring the American experiment.
I want to conclude by addressing a less important but still relevant point. There are some on the Right, and on the Left, who might think that as a Jew I am at bottom simply looking out for the interests of my people. I would be dishonest if I did not admit that America has been a wonderful country for Jews—although in light of recent problems regarding assimilation, it has to some extent been a mixed blessing. Nonetheless, I can only hope that my friends and enemies trust me when I say that American democracy is good for both Jews and non-Jews alike. My friend, Mr. Thacker, says that I am frightened by his words, and he is right. But I am frightened not because I fear challenging the government, but because I fear what it would mean for all Americans if we were to lose it.
—Stephen Rochester is a senior in Saybrook College
Joseph A. P. De Feo
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