Dismembering the Law

A few years ago, a film called The Truman Show came out. It featured a man in his thirties whose entire life from the moment of his birth had been filmed and -- unbeknownst to him -- watched by a vast television audience twenty-four hours a day. The small town he lived in was actually a giant movie set. The people he thought were family and friends were actors. He had the illusion of living a normal life in a normal town -- but it was just that: an illusion. It was a fascinating movie -- and it also serves as an illustration of what's happening to our democracy. We Americans think we enjoy self-government. We have all the trappings of self-government, like elections. But in reality, we have gradually lost many of our rights to govern ourselves. We have the form of self-government, but only some of the substance. We are, in a sense, a nation run by a handful of judges who often enforce, not the law, but their personal opinions. A case in point: Beginning in 1997, federal judges began ruling on a series of state laws enacted to outlaw a barbaric abortion procedure called partial-birth abortion. As Hadley Arkes, a moral philosopher at Amherst College, writes in his excellent new book, Natural Rights and the Right to Choose, these laws were written with great care -- yet, predictably, abortionists went to court, claiming the statutes were confusing. In crediting their claims and being willing to act on them, Arkes writes, "judges had to be willing to break from the conventions that defined quite sharply in the past the 'ethic' of judges in a democracy." In a democratic regime, Arkes explains, judges are supposed to confine themselves to cases in which the law is actually being enforced on particular persons -- "cases and controversies," as the Constitution calls them. But in these cases, abortionists simply said they were confused by the statute. And if judges are "willing to pass judgment on a statute, without the occasion of a case, then the judges" cast themselves in the role of legislators: "Lacking any record of a case, they would simply" vote on their sense of whether the legislation was desirable or constitutional. And in fact, the judges "would be legislators on a more exalted plane," as Arkes puts it. In striking down a statute, their own votes would override the votes of lawmakers who, representing millions of citizens, had passed the law. This kind of power has always been viewed as deeply problematic. In a democracy, a sense of propriety obliges judges to work under a discipline that confines the reach of their power. So long as judges use restraint, power remains in the hands of the people elected to office. But these were the very constraints judges willingly threw off in the partial-birth abortion cases. Judges found a reason to strike down every single law without exception. And, Arkes writes, they would not even bother to justify this extraordinary unconcern for the restraints on their office. We need to be concerned, not only about abortion, but all the issues judges will be ruling on in the next decade. As citizens, we need to insist that lawmakers confirm judges who are willing to exercise judicial restraint. If we don't, we may one day end up in our own Truman Show -- living in what looks like a democracy, but is in fact, a land run by judicial tyrants. For further reading and information: This year's March for Life in Washington, D.C., will take place tomorrow, January 22, 2003. Hadley Arkes, Natural Rights and the Right to Choose (Cambridge University Press, 2002). Patrick Henry Reardon, "The Roots of Roe v. Wade," Touchstone, January/February 2003. Learn more about the Shake the Nation campaign to appoint pro-life judges. Roger Pilon, "Toward the Restoration of the Law," Cato Institute, 17 January 2003. BreakPoint Commentary No. 020501, "When Old Friends Abandon Principle: Remembering Justice Byron 'Whizzer' White." Peter Kreeft, Three Approaches to Abortion (Ignatius Press, 2002). Learn how you can make a difference in the culture with the "BreakPoint Culture of Life Packet." It includes the booklet "Building a Culture of Life: A Call to Respect Human Dignity in American Life" and a "BreakPoint This Week" special broadcast CD that includes an interview with Wilberforce Forum Fellow William Saunders, Human Rights Counsel and Senior Fellow in Human Life Studies for Family Research Council, along with a speech, "Bioethics and the Clash of Orthodoxies," by Dr. Robert George.

01/21/03