Father Neuhaus and the Constitution

Demonizing unelected judges and “the elite classes from which the Justices come” has worked well for the American right since the 1950s. Strategy may thus explain why the editors of First Things, in their symposium of November 1996, condemn the “judicial usurpation of politics” while professing their faith in both the American people and the American Constitution. But as is attested by the resignations of Gertrude Himmelfarb and Peter Berger from the First Things editorial board and Walter Berns’s resignation from the editorial advisory board, and despite Richard John Neuhaus’s carefully qualified disclaimers in the journal’s December edition, the November symposium attacks more than the regime of judicial activism.

First Things goes beyond an attack on the Supreme Court to question the moral legitimacy of the nation’s political culture and even the Constitution itself. In what Father Neuhaus and his editorial team selected as the symposium’s lead article, Robert Bork calls rule by a “profoundly illegitimate” judicial “oligarchy” the “inevitable result of our written Constitution and the power of judicial review.” Disappointed by most of the Reagan-Bush appointments to the Court, Bork declares the Court beyond reform “as our institutional arrangements now stand” (p. 23). He proposes constitutional amendments that would subject judicial decisions to change by mere congressional majorities notwithstanding a constitutional tradition of judicial independence and the acceptance of that institution by what Bork calls a “supine” public that is “willing to watch democracy slip away” (p. 24).

One would have expected some disagreement with Bork from the legal academics who wrote for the symposium. Roe v. Wade, Planned Parenthood v. Casey, and Romer v. Evans may have been wrongly decided, but they represent a “judicial usurpation of politics” only on the assumption that judges can apply the Constitution’s general standards without making controversial moral judgments. This assumption is connected to originalist and proceduralist approaches to constitutional interpretation that a generation of scholarly reflection has completely demolished.¹

Though Bork remains stubbornly faithful to originalism, competent legal academics of the First Things community know that position is intellectually bankrupt.²

I cannot say here that the legal scholars of First Things have an obligation to acknowledge the collapse of Bork’s approach to constitutional interpretation. Their conception of scholarly responsibility may sometimes counsel the use of fallacies for morally compelling results. But if that is their attitude, they can hope to square it with democracy only if they believe they see a moral truth that the public does not now see but eventually will see and that people will either approve or forgive offending tactics that succeed in making them better people.

On these or kindred assumptions, however, the Supreme Court, as an institution, cannot be all bad. One would think — with The Federalist and the nation’s early judicial tradition, and against a moral skeptic like Bork — that an independent and assertive judiciary would sit comfortably with the belief that all government, including democratic government, is answerable to moral truths of nonconventional origin, that the public can sometimes err, and that fully responsible institutions will combat such error and eventually reconcile a people’s opinions to what is right.³

I read a reminder to this effect in Robert George’s comment on Justice Antonin Scalia’s willingness to let the several states define fetal rights up or down, as they wish. In the November edition of First Things (p. 40) George contrasts Scalia’s position with the position of Pope John Paul II that abandoning the unborn to what George terms “private lethal violence” is a form of tyranny that “betrays the substantive principle of equal worth.” In adding that American judges have a “special responsibility to preserve the core democratic principle of equality before the law,” George suggests that Scalia’s judicial restraint toward abortion is in fact a betrayal of democracy.

A related criticism applies or should apply to Bork. By abolishing the independent judiciary, instead of trying to change its direction, Bork would abandon the unborn to the private violence that more than a few states of the Union would, with Congress’s leave, surely permit. And...