To Reclaim Our Democratic Heritage
The symposium on the judicial usurpation of politics has generated an intense debate about many things, as is evident in the above responses, in the letters section of this issue, and in the many commentaries appearing in other publications. Obviously, this is a debate that will continue. William Bennett is right: the stakes are indeed high. They are too high to indulge any desire to score debating points. Our hope is to move toward a conversation that is calm, deliberate, and keenly aware of the implications of conclusions reached.
We deeply regret the resignations of valued friends who believe this entire discussion is out of order. Their distress no doubt reflects honest disagreement, but also, we believe, misunderstanding. Neither the editorial introduction nor the essays in the symposium asserted that the government of the United States is illegitimate. We thought that was made clear, but apparently not. The editorial distinguished between the judicial usurpation of politics, which we called the current regime, and the polity defined by the Constitution. The editorial said: "What is happening now is the displacement of a constitutional order by a regime that does not have, will not obtain, and cannot command the consent of the people."
What we called the regime is an aberration. We do not agree that the judicial usurpation of politics is inevitable or irreversible, that it is, in fact, to be equated with the government of the United States. It is this regime of the judicial usurpation of politics that is illegitimate. We are sorry that this crucial distinction was not clear to some of our readers. It seems part of the difficulty is in the use of the term "regime," which in some political theory has a very definite and comprehensive connotation. In order to avoid confusion, we suggest the term should be used with caution, if at all, as the discussion continues.
Of course, the question inevitably arises as to whether the aberration is somehow inherent in the constitutional order itself, in which case some may argue that it is not, properly speaking, an aberration. In the symposium, Judge Bork writes: "On the evidence, we must conclude, I think, that this tendency of courts, including the Supreme Court, is the inevitable result of our written Constitution and the power of judicial review." An aberration that is, in retrospect, seen as an inevitable result is still an aberration.
The Founders may be accused of a lack of prescience, but it is certain that they did not intend a government by what Bork calls judicial oligarchy. All the participants in the symposium, with the editors, believe that the aberration of a nation governed by judges is not irreversible. Different remedies are suggested and varying degrees of hopefulness are expressed about the likelihood of their being adopted or, if adopted, whether they will be effective. But there should be no doubt that the symposium is an urgent call for the American people to reassert the theory and practice of democratic self-government and thus revive the republic bequeathed us by the Founders.
It is said that the question of illegitimate government is not and should not be a subject of contention. That, some contend, is a question that was agitated in the radicalisms of the sixties, and should now be consigned to the past and declared undiscussable. While the editors are not of one mind as to how the discussion should proceed, the question was a subject of contention, also in our pages, before the November symposium, and will continue to be a subject of contention, whether or not we want it to be. The question of legitimate and illegitimate government, and what it means for the governance of this country, should be a subject of contention. It has been that since the founding of this republic, and will be so long as it endures. To give the experience of the sixties veto power over the …
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: To Reclaim Our Democratic Heritage. Contributors: Not available. Magazine title: First Things: A Monthly Journal of Religion and Public Life. Issue: 69 Publication date: January 1997. Page number: 25+. © 2009 Institute on Religion and Public Life. COPYRIGHT 1997 Gale Group.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.