December 9 1996

ARTICLE TOOLS

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Bracing for charges of irresponsibility and alarmism, the editors of the conservative monthly First Things brought forth in November a five-article symposium on "The End of Democracy?"—a title they claimed was "in no way hyperbolic." No tabloid tease there. They meant it.

The authors, a distinguished array of conservative legal theorists and political scientists, including Charles Colson and Robert Bork, argue that recent Supreme and Federal Circuit Court decisions have short-circuited the democratic process, doing an end run around the popular will in such areas as abortion, gay rights, and assisted suicide. Indeed, in the Romer case, which invalidated the express will of Colorado voters to ban gay-rights ordinances (CT News, June 17, 1996), the Supreme Court defined by fiat any disfavoring of a sexual minority as proceeding from animus (rather than principle or reason). The Court stripped the voters of their constitutional means of addressing moral problems in their midst. This left the voters of Colorado—and of every state of the Union-no recourse, no possibility of ballot initiative, referendum, or even amendment to the state constitutions. Ergo, "the end of democracy." We no longer govern ourselves. The Court has seen to that.

The First Things authors feel this pinch keenly, recognizing that, in principle, the judicial branch of the federal government has usurped powers that belong to the people, the Congress, and the executive branch. Their analysis of the Court is cogent. But the Christian's deeper dispute with such cases as Roe and Casey is not simply that they undemocratically bypassed the legislative process; it is that they undemocratically fail to recognize the moral equality of all persons (including ...