On Judicial Tyranny


"First Things Last" (March 1997) evinces the sharp analysis and pungent criticism we have come to expect from Samuel Francis. However, I disagree with him on one point. Francis contends that the controversial "laws" made by the Supreme Court are merely "permissive" in nature. Thus, unlike Sir Thomas More, who was commanded to sign an oath he regarded as untrue and morally repugnant, American citizens today are not commanded to have abortions, or perform euthanasia. This is true, but irrelevant to the problem at hand. Judicial sentences regarding constitutional law do not directly command or prevent anyone from doing anything. Rather, constitutional law consists of rules which govern the making of further rules, and therefore constitutional law binds people only in their public capacity, insofar as they make, administrate, and enforce laws. In order to appreciate the alarm sounded by the First Things symposium, we need to sec how a constitutional "law" can impair the ability of the people to remedy an injustice through the political process. This is not merely a "permission" to an individual (to have an abortion, to order a physician to kill him, to enjoy a public square free of religious messages); it is a restriction on the ability of the people to make or change laws that are necessary for the common good, and such restrictions become part of the social contract. When these same restrictions arc made ultra vires, without authority, they usurp what is "common"—not mere permissions to individuals. So, the First Things symposium does not just allege that the Supreme Court makes "laws" permitting immoral behavior, but that the social contract is being steadily eroded to the injury of all citizens.

Recall Jefferson's brief against the Crown: "He has refused his Assent to Laws, the most wholesome and necessary for the public good. . . . He has forbidden his Governors to pass laws of immediate and pressing importance. . . . For suspending our own Legislatures, and declaring themselves invested with Power to legislate for us in all cases whatsoever. . . . He has abdicated Government here." As a son of the South, Samuel Francis surely understands that Jefferson's case did not rest on the lone individual exercising his private conscience against allegedly wicked laws. Rather, Jefferson complains about royal decrees which impair the ability of the people to be political: that is, to deliberate in public assemblies, and to frame laws conducive to their common well-being. There is not the slightest hint of a "subjective" private complaint from individual moral conscience.

So, too, the First Things symposium urgently raises the problem of a Court that gradually, but persistently, changes constitutional rules to favor the permissive liberty of individuals against the political liberty of the people. Should this tendency go unchecked, the problem of obedience is irrepressible. One cannot tender political obedience to a principle that destroys the very conditions of political order. The First Things symposium did not advocate private judgment about the "higher law" as a remedy to the Court's usurpations. While we can be criticized for failing to develop concrete solutions, the symposium was not intended to grind the mills of Beltway policy. Our chief point is that the devolution of the social contract will force individuals to consult their private conscience in lieu of proper constitutional order. That is precisely the result we are trying to prevent.

Samuel Francis accuses certain neoconservatives of being amoral servants of the status quo. It would be very unfortunate if his own polemic falls into the trap of regarding every criticism of authority as nothing more nor less than an exercise of private conscience. If that is true, then I cannot see any substantive difference between Mr. Francis's position and the one he attributes to some neoconservatives. The conservative should not have to choose between paleo- and neo-Hobbesianisms.

        —Russell Hittinger
Warren Professor of Catholic Studies
Research Professor of Law
University of Tulsa
Tulsa, OK

Dr. Francis Replies:

I remarked in my article that Dr. Hittinger's contribution to the First Things symposium was the most closely reasoned part of it, and his letter is equally well argued. Indeed, I have no disagreement with much of it. I raised the issue of "compulsive" as opposed to "permissive" laws in the context of passive resistance or civil disobedience, concepts that simply cannot apply to laws that are merely permissive. One can passively resist or civilly disobey a law only if the law is compulsive and commands the subject to take some action. Civil disobedience consists simply in declining to obey the command. To resist a permissive law, one must undertake some action against the law-making power itself. A permissive law still can be illegitimate and is illegitimate if enacted in a way that violates the legitimate (constitutional) procedures for making laws; but to invoke extralegal means as a remedy for illegitimate permissive laws opens the door to what historically has been an ever-escalating staircase of antisocial action and increasingly subjective and fantastic grounds for climbing it.

I will pass over Dr. Hittinger's argument that court rulings are illegitimate if they restrict "the ability of the people to make or change laws that are necessary for the common good." Such rulings may be bad things, but the test of legitimacy in the American political order is the constitutionality of the law, not its goodness or badness, and restricting the ability of the people to make or change laws in itself is not necessarily unconstitutional or illegitimate. Indeed, for all the latitude left to the states and the people in the Constitution, there are some restrictions on their powers in the original constitutional text, and there should be such restrictions. The issue today is whether recent court rulings are consistent with or violate the Constitution.

Dr. Hittinger's appeal to Jefferson strikes me as irrelevant, since, one, Jefferson was speaking for a collective entity (the Continental Congress, the American people) and not merely for his own subjective impulses on the subject; two, Jefferson spends two paragraphs explaining that the Americans have exhausted all peaceful and legal means of redress against the British abuses to no avail and that therefore political separation, enforced with arms, is the only recourse that remains to them; and three, the abuses to which he was objecting were violations of long-standing and wellknown political norms and customs, not merely of what a handful of eccentrics have this week discovered to be the higher moral laws of the universe.

I do not for a moment place Dr. Hittinger in the latter category, but his colleagues' reliance on what can only be called "higher law" is an invitation to those who do belong in that category. I simply cannot grasp how Dr. Hittinger can claim with a straight face that the symposium "did not advocate private judgment about the 'higher law.'" Again and again in the symposium the point is made that recent rulings on abortion, homosexuality, and euthanasia violate natural or divine law. That may be, but unless such law is clearly codified and institutionalized, it can be known only through "private judgment." The whole point of a constitution and laws made pursuant to it is to avoid forcing recourse to such judgments. Again, the point is not what churches have taught or philosophers have thought but what the Constitution permits. The rulings in question (as well as many, many others) are illegitimate because they violate long-standing and well-known constitutional rules, not because they violate laws higher than the Constitution, of which our Constitution knows nothing.

In addition to their illegitimacy, they also are bad "laws"—because they destroy local arrangements long held to be necessary and useful to the preservation of order in particular communities, because they permit crime and disorder to flourish, and for many other reasons. Even if they were legitimately enacted, the evil they do would justify concerted efforts to change them.

I hardly see how my criticism of the symposium "falls into the trap of regarding every criticism of authority as nothing more than an exercise of private conscience." I stated in my column that "The courts have been abusing the Constitution and handing down illicit commands to states and localities for at least 50 years," that "we have had nothing but an illegitimate regime in the United States for the last 50 years," a regime that is not only illegitimate in its violations of known constitutional restrictions and law but is actually tyrannical in its systematic attack on cultural norms and institutions. The question is not whether authority should be resisted or criticized but the best way to do it. It might be exciting to call for "civil disobedience" to an "illegitimate regime," but that accomplishes nothing. My point is that even today there remain many avenues of legal, peaceful, and democratic (though nevertheless radical) resistance and change that most conservatives have not even begun to pursue—mainly through effective mobilization of increasing popular alienation from the "regime."

Conservatives do not pursue these avenues because they involve hard work, sometimes unpleasant associates, patience, and a willingness to do, say, and think unfashionable things that might lose you your job, your respectability, and your access to the rewards offered by the very system you claim to want to overthrow. The neoconservatives who attacked Father Neuhaus and his colleagues are perfectly comfortable within that system, have no inclination to change it, and constitute its guardians against those who do seek change. Father Neuhaus and his colleagues have now arrived at the point that they see at least some flaws of the system but not, I suspect, at the point that they are willing to jeopardize the rewards the system offers them. Sooner or later the best of them will reach that point too. When they do, they may give me a call.


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