Distributivism and Catholic Social Teaching
The First Things symposium proposes as its starting point the question of "...whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime" (The End of Democracy; The Judicial Usurpation of Politics, pg. 3). The reason for withholding this assent is that "Law, as it is presently made by the judiciary, has declared its independence from morality," (6) In Fr. Neuhaus' analysis, "questions that are properly political are legalized." The core of the objections is that the courts have taken over questions that properly belong to the legislatures, most notably on the so-called "cultural issues" such as abortion, euthanasia, homosexual marriage, women's rights, etc. Hence, the "End of Democracy."
Responding to this question involves two considerations: the first is the process of making law and the second is the legitimacy of the regime under which the law is made. Neuhaus et al. question the court's right to "make" law and question the legitimacy of such judicial fiat on democratic and Constitutional grounds.
Concerning the question of judicial "law-making" the root of the complaints are given in Judge Bork's analysis. According to the judge, "The most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control." (10) Most troubling to the Judge is the Romer v. Evans decision, which is found to be "indecipherable" and which "held that the denial of special status to homosexuals violated the equal protection clause of the Fourteenth Amendment." (11) What most excites Bork's anger is the power of the Courts to strike down democratically passed laws, even laws passed by plebiscite. Bork concedes that this is not new and cites the 1857 Dred Scott decision as an egregious example. But he believes that it was not until this century when "the Court invented the theory that the Bill of Rights limited states as well as the federal government that the opportunities for judicial government exploded." (15) Bork concludes that "Without realizing quite what they were doing, generations of Americans have accorded all courts, and most especially the Supreme Court, unchecked power." (16-17) The main culprit, for Bork, is the concept of judicial review, which Bork and other First Things editors propose limiting or abolishing altogether.
The problem is that such analysis fails on at least two counts. The first is that the Judge appears to be at odds with American legal history, and the second is that he seems unaware of the traditional concept of law and of the distinctions between common and legislative law. Concerning the first point, the "usurpation" which Bork laments is, in fact, part and parcel of American History. The principle is first enunciated in 1803 in Marbury v. Madison. Further, the idea of interpreting the Constitution broadly is first given in 1819 in McCullogh v. Maryland in which the court upheld that congress had the power to establish the Bank of the United States, a power neither mentioned nor hinted at in the Constitution. Thus if the powers of the legislature have been usurped, we must trace this usurpation back to the generation of the founders.
But there is a much deeper problem with Bork's analysis. Though he laments the fact that judges make law, this has always been the case, not only throughout American History, but throughout Human History as well. We only need to glance a the law codes of Hammurabi, Justinian, Napoleon, and, most importantly for out purposes, the British and American Common Law Traditions to see that we deal primarily with the decisions of judges, not of legislatures or of kings. In fact, most of the laws under which we live (and all men live, save those afflicted with tyrannies) are common laws. It is clear that the most common form of law is common law, not statute law. Further, the Common Law Tradition is implicit in the Constitution and explicitly mentioned in the Seventh Amendment.
It is important to understand the distinction between common and statute law, for they are distinct and serve different purposes. Common law is the law familiar to "the commoner"; the law that is supposed to be written on the heart of each man, however obscurely and confusedly. Thus common law finds its roots not merely in constitutions, but in customs, traditions, and, most importantly, in "natural law." Statute law, on the other hand, deals mainly with temporal matters: the succession of Kings, the imposition of taxes and tariffs, the preparations for war, the division of land, the building of roads, the coining of money, etc. Common law is man's crude attempt to grasp the abstract ideal of justice and apply it to some set of concrete circumstances; statute law deals with the allocation of power and (what comes to much the same thing) the allocation of money. We can view the two types of law from their different starting and ending places: common law starts with the ideal of justice (natural law) and works towards the temporal order; it works not only from written law but from custom, doctrine and tradition. Statute law works from the temporal order and attempts (in just regimes) to provide laws and policies conformable to the natural law; it works by compromise between contending powers.
People have always been intuitively suspicious of legislatures and what goes on in them. We understand instinctively that the natural ambiance of lawmakers is the smoke-filled room, the power lunch with power brokers. It is only through legislation (parliamentary or princely) that we could get such tyrannies as the Doomsday Book, the enclosure movement, the seizure of the monasteries, the Statute of Frauds, the Income Tax. As Bismarck sagely noted, "if you like law and sausages, you shouldn't watch either being made." Everyone understands this sentiment, and understands it immediately. Bork's elevation of legislative fiat to an absolute contradicts not only common sense, but human experience.
For what Bork advances is nothing less than the primacy of legislature in the matter of making law, thereby erasing the distinctions in the kinds and purposes of law. This lack of distinction seems less radical to us today then it should, but in fact the idea is new, going back only to the 18th and 19th centuries; previous to this it was the courts that were the major law-givers. To reverse this ancient tradition implies the notion that the legislature can determine not only the allocation of power and money, but the allocation of right and wrong itself. Implicitly it denies that right and wrong transcend the will of the legislature, whether that legislature represents the will of a monarch, of an oligarchy, of the commons, or some combination of all. The idea of a transcendent justice is thereby broken, and having been broken, men (and jurists or legislators) can rely only on power or political correctness. This unbridled will is the sort of thing that gave the Rockingham Whigs fits; it is the opposite of the Burkean ideal of government by "the Ciceronian jus naturale, reinforced by Christian dogma and English common-law doctrine."[1]
Thus we should not find it strange that judges do what judges have always done---seek to discover justice and promulgate its dictates. That they have, in recent times, done it badly is beyond dispute. But well or badly, judges will continue to do what judges do; the causes and cures lie elsewhere than the Borkian analysis; lies closer in truth to the Burkean analysis. For the agony of modern jurisprudence lies in the fact that while justice transcends any particular law or system of laws, modern man (and hence modern judges) have abandoned the idea of transcendence altogether. If we abandon natural law, then it is quite natural that our laws should be unnatural. Having abandoned transcendence, modern jurists must seek for justice somewhere else. In America, that "somewhere else" is often located in the "penumbra of the Constitution," as Justice Douglas put it, that is, in the shadow of a brief organizational document that enumerates only a few rights. Yet they seek in the shadows that which is easily found in the light of day, in the light of reason, the moral imagination, and the natural law. If there is no transcendent, then their can be no rational basis for justice. Ex nihilo, nihil it has been said, but that is not quite true. For from nothing comes not nothing but worse than nothing, just as sure as from an overdrawn account comes bankruptcy. From the shadows of relativism comes not mere shadow but true darkness.
But having lost ourselves in the shadows of relativism, no scheme of "limiting the courts," strengthening the Congress, or what have you, will change this regrettable cultural fact. In fact, the liberal and neo-liberal (or neo-conservative, if you insist; I cannot tell them apart) say very much the same thing. Both reduce the question to one of procedure and power; both find their legitimacy in form rather than in facts.
In arguing for the ascendancy of the legislature, Bork goes so far as to propose a constitutional amendment permitting the override of court decisions by simple majority vote. (251) There is a simple name for this scheme: it is called tyranny. For since simple majorities pass all the laws, every law would be immune from judicial review, save by tacit consent of the legislature itself. But law unbounded by custom, court, or constitution, law that recognizes no higher law save its own will, is the very definition of tyranny, and every tyranny can be traced to this source. This is even more evident in Bork's hope that "Perhaps an elected official will one day simply refuse to comply with a Supreme Court decision." (17) Yet this has already happened, and it ill behooves a constitutional scholar to ignore the tragic consequences that occurred when Bork's advice was followed.
In 1830, Congress, respecting no notion of natural law, passed the Indian Removal Act, with the object of "removing" the Cherokees of Northern Georgia, among other tribes. The Cherokees were a sophisticated group governed by a system modeled on the American Constitution, and they were largely Christianized. The Cherokees sued and in Worcester v. Georgia the Supreme Court under Chief Justice Marshall found in their favor. President Andrew Jackson, anticipating Bork by an hundred and sixty years, declared "John Marshall has made his decision; now let him enforce it." He then had the army round up 15,000 Cherokees and march them 800 miles to Oklahoma, an alien land. Over a quarter died along the march from hunger, cold, dysentery, and broken hearts. This atrocity (let us call it what it is), like all atrocities, is the predictable result of legislative will unrestrained; it is the opposite of checks and balances--it is tyranny with its all too predictable consequences.
Beyond the question of the judiciary, the editors address the subject of legitimacy. Can a government that calls itself a democracy be legitimate if the will of the people can be overridden by the courts? Fr. Neuhaus even places democracy in the context of vox populi, vox Dei. He quotes the 1604 declaration of Parliament to James I "The voice of the people, in the things of their knowledge, is as the voice of God." and goes on to say "with respect to political sovereignty that declaration is a keystone of democratic government." (5) The editors then place the following proposition forward for our consideration: "The government of the United States of America no longer governs by the consent of the governed. With respect to the American people, the judiciary has in effect declared that the most important questions about how we ought to order or life together are outside the purview of 'things of their knowledge.'" (5)
What I find interesting is that the editors look only to the courts for possible violation of the democratic practice. But one wonders, along with Gertrude Himmelfarb:
what if the legalization of abortion were the product not of the judiciary but of the legislature---if it betokened not the 'end of democracy' but the very exercise of democracy? This is, in fact, the case in most Western countries, where duly elected representatives have enacted the statutes legalizing abortion (and, in some countries, euthanasia as well)." (90)
It is difficult to get over the feeling that the editors are not so much exercised by abortion, etc., as by the lack of "judicial restraint." But is this the only threat to basic rights and to democracy itself? Other commentators come, I think, closer to the mark. The courts are not alone in their abandonment of democracy and natural law. Mary Ann Glendon especially sees the problem as wider than the editors are willing to concede:
The regime question they raise is real. There is a good case to be made that we are already living in a de facto oligarchy. It is less clear, however, that the courts are, as all six writers seem to think, principally to blame. ...
For many decades now, control over the most important decisions affecting the conditions under which Americans, live, work, and raise their children has flowed steadily from the people most affected toward the state and federal legislatures and administrative agencies. The courts were hardly the only agents in this process, nor is it certain that they could have held it back. Yes, legislatures are more representative than courts, but they too are increasingly responsive to the interests and values of 'elites.' Yes the judiciary all too often mirrors the biases of the knowledge class, but the legislative and administrative processes are all too often captured by the money class.
And look not to the political parties, as presently constituted, for help. It does not seem an exaggeration to say that we currently have a party of big business playing lip service to traditional moral values, and a party of big government paying lip service to the need of working people and the poor. Even that distinction is collapsing as Democratic Party leaders cozy up to big business, and Republicans discover the joys of big government. (84- 85)
Ms. Glendon puts her finger right on the political problem. While the editors seem content with the mere form of democracy, they ignore the reality, save in the case of the courts. But since within the two party system (itself an extra- constitutional arrangement) the choices offered are frequently meaningless, the very meaning of democracy comes into question for reasons quite apart from those cited by the First Things editors. Moreover, this two party system has been enshrined in law and supported by public subsidies to the point that it is practically impossible to get third parties on the ballot in most places, and even more difficult for such a party to get a public hearing even if it does. It is not for nothing that multitudes do not register to vote, and that only half of those registered bother to vote. The people, the vox populi celebrated by Fr. Neuhaus, have determined that the choices are not worth standing in line for half an hour.
If there is a question of legitimacy (and there is) it must be wider then the question of the courts. For democracy that offers no choices is a sham democracy indeed. Yet we are very close to this. Further, the opportunities for reform are becoming more and more limited as the amounts of money for a competitive campaign increase, as the subsidies to "official" parties pile up, and as the laws restricting third parties grow tighter. It would indeed behoove the right to call for a restoration of democracy, but that involves more than judicial review, which may not be the problem at all.
If one adopts a "vox pop" line in regard to social issues, then one must confront the fact that most polling data shows that most people, though they have doubts about the morality of abortion, are not in favor of criminalizing it. Though they feel that basic rights are involved, they feel this is "morality," and, as the culture tells us, you cannot impose your "morality," even to defend the unborn, the handicapped, or the elderly. Thus it would seem that the public is afflicted by the same relativism as the courts, and would likely, if given the opportunity, act in the same way. The editors of First Things point to various "liberal elites" as the culprit in the cultural question. While it is certainly true that America is, to some degree, elitist (as are nearly all societies), one can't help but wonder if the importance of academic elites isn't exaggerated. It seems that there are more pervasive and obvious means of social control. The media is not really controlled by liberals or conservatives; it is controlled by materialists. It is controlled by people whose only interest is in selling product, and the best way to do this is to convince people that in products lies their happiness. Of course, the concomitant of this is relativism, a doctrine they are only too happy to spread. Hence, despite their nominal and economic "conservatism", they are impatient with conservatives who see "social issues" as important. They proclaim, along with Madison and Calvin Coolidge, that "the business of America is business." It seems to me that the editors ignore the means of propaganda most visible and most effective to concentrate their fire on a few academics. I merely point out what should be obvious to everybody: that in the "culture wars," Murphy Brown is more influential then Jacques Derrida, and Chevrolet commercials more influential than either. Rather then hectoring each other with partisan fervor, a better course would be for Christians of the Left and Right to join hands to combat what is acknowledged to be the common enemy. The methods of this enemy are outlined by Mary Ann Glendon:
For spare moments, when regime-threatenting questions might come to mind, the oligarchs have authorized a modern form of bread and circuses, an array of new sexual freedoms to compensate for the loss of the most basic civil right of all -- the right of self- government. With the democratization of vice, the man in the street can enjoy exotic pastimes once reserved to Roman emperors." (86)
How could this happen in the most "Christian country in the world" (as some have called it)? James Dobson supplies the answer; citing Thomas Reeves he notes that "Christianity in America is 'in large part, innocuous. It tends to be easy, upbeat, convenient, and compatible'---not the sort of faith likely to usher in anything like another Great Awakening." (83)
Further, the entire economic system argues against us, as Mary Ann Glendon notes:
Most Americans are highly dependent on big business and government: about a fifth of the labor force are public employees; a third work for the central core of large corporations (many under government contract or subsidy); the pensions of retirees are invested in the same corporations; recipients of governmental largesse include not only welfare clients, but a substantial fraction of the middle class (through government-insured loans, Medicare, and retirement income funded with general tax revenues). Most of these dependents have children or others who are in turn dependent on them.
On this neo-feudal landscape, we find precious little politics in Aristotle's sense of ordering our lives together. You might say of anyone who is looking for sturdy, independent citizens these days what Rousseau said of Diogenes with his lantern: The reason he failed is that the man he was seeking lived in a different age. (85-86)
The "neo-feudal" landscape is at the source of our troubles. The exercise of self-government requires precisely these independent men, but we live in an age of dependence. But not the dependence of community, of persons who rely on each other; that is, on family and neighbors, on their own abilities to work their own lands or their own trade, but the dependence of slaves upon masters, be they governmental or corporate masters, who hold the keys to economic well-being as well as to the sources of information, education, entertainment and culture.
How can we overcome these problems? How to recover our independence? Mary Ann Glendon suggests that the way out lies in:
...reinvigorating the structures of civil society. Local governments, families, religious groups, workers' associations, and the like are our 'schools for citizenship' as well as our seedbeds of character and competence. They are the only real counterforces to the excesses of market and state. (87)
I would only add to Ms. Glendon's analysis that our economic structures must also be responsive to the local level, if they are to be saved from the headlong rush to nationalization and globalization and the consequent loss of economic independence in the local structures.
How are these things to be accomplished? In the first place by a Christianity that is not at all "innocuous", but indeed highly noxious to the modern state. One that is hard, inconvenient, and incompatible with the current culture. Like our noble and saintly forbears, we must be willing to go down to the catacombs, if need be, and undermine the very sources of the empire. This is a task of reform, but first of all a reform of our own religious attitudes; for without fortifying ourselves with the Gospel, we can do nothing, and our impotence will merely deepen. After that, it is a task for evangelization, and only then for political, social and economic action. Not that these tasks, extensive as they are, are serial, with one waiting upon the other, but all must be done at once. But they must be perceived in the proper order.
Yet having said all this, can we still conclude that the current regime is "illegitimate?" If regimes depend for their legitimacy on moral perfection, then we can give no regime this side of the eschaton our allegiance. As Christians, our role in any regime is to be perfect servants, insofar as we can, and of perfect subversives, insofar as we must and insofar as we have the spittle for it. We are never truly citizens of any place, but always only sojourners, pausing for a moment on our way Home. But we must, while we do sojourn here, work to make the gospel alive in every aspect of our society. And as we bear no final allegiance to any state, nor do we to any faction or party. We are conservative or liberal, democrat or republican, for the working moment only, always ready to change if need be and always willing to cooperate with all wherever we can.
Footnote
Copyright © 1999-2003 John C. Médaille. john@medaille.com Design by Granat Editorial Services