I do not know the First Things November 1996 symposium that connected the end of democracy to the judicial usurpation of politics. Apparently, that symposium generated a lot of discussions about judicial activism, democratic legitimacy, and the intellectual framework of America's conservative movement in history.The debate has been collected in a book.
The theme resonates with recent posts at philosophy.com.
Going back to the original symposium I can see that Robert H. Bork made arguments that are very familar in Australia. The activist Supreme Court has overstepped its Constitutional authority in that "The most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control." Bork says that in extending their powers, the judicial activists on the Supreme Court have usurped the legislative process. Hence they must be stopped through a series of legislative and cultural reforms.
The specific issues tackled by the Supreme Court in the US and the High Court in Australia are different but the conservative argument is the same: the judicial actions that add up to an entrenched pattern of government by judges that is nothing less than the usurpation of politics. The question posed by First Things in the Introduction to the Symposium is quite radical: "whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime."That question has not been posed in Australia, as far as I know.
Personally I am sympathetic to judicial activism by the High Court in Australia in terms of discerning implied rights to free speech implied in the Australian Constitution and the laying to rest the myth of terra nullius in the Mabo case. These accord with my lefty politics.
However, my republican understanding of politics is similar to that articulated by First Things. They say:
"Politics, Aristotle teaches, is free persons deliberating the question, How ought we to order our life together? Democratic politics means that "the people" deliberate and decide that question. In the American constitutional order the people do that through debate, elections, and representative political institutions. But is that true today? Has it been true for, say, the last fifty years? Is it not in fact the judiciary that deliberates and answers the really important questions entailed in the question, How ought we to order our life together? Again and again, questions that are properly political are legalized, and even speciously constitutionalized. This symposium is an urgent call for the repoliticizing of the American regime."
"The democracy they devised was a republican system of limited government, with checks and balances, including judicial review, and representative means for the expression of the voice of the people. But always the principle was clear: legitimate government is government by the consent of the governed."
So I have a problem on my hands.
I am going to have to work through this debate in the different issues of First Things.
Posted by Gary Sauer-Thompson at October 23, 2003 11:42 PM | TrackBack