EDITORrnThomas FlemingrnMANAGING EDITORrnTheodore PappasrnSENIOR EDITOR, BOOKSrnChilton Williamson, ]r.rnASSISTANT EDITORrnMichael WashburnrnART DIRECTORrnAnna Mycek-WodeckirnCONTRIBUTING EDITORSrnHarold O./. Brown, Katherine Dalton,rnSamuel Francis, George Garrett,rnPaul Gottfried, Christine Haynes,rnE. Christian Kopff, /.O. Tate,rnClyde WilsonrnCORRESPONDING EDITORSrnBill Kauffman, William Mills,rnJacob Neusner, John Shelton Reed,rnMomcilo SelicrnEDITORIAL SECRETARYrnLeann DobbsrnPUBLISHERrnAllan C. CarlsonrnPIIBLICATION DIRECTORrnGuy C. ReffettrnPRODUCTION SECRETARYrnAnita CandyrnCIRCULATION MANAGERrnRochelle FrankrnA publication of The Rockford Institute,rnEditorial and Advertising Offices:rn934 North Main Street, Rockford, IL 61103.rnEditorial Phone: (815)964-5054.rnAdvertising Phone: (815) 964-5813.rnSubscription Department: P.O. Box 800,rnMount Morris, IL 61054. Call 1-800-877-5459.rnU.S.A. Newsstand Distribution by Eastern NewsrnDistributors, Inc., One Media Way, 12406 Rt. 250rn.Milan, Ohio+4848-9705rnCopyright © 1997 by The Rockford Institute.rnAH rights rcscn’cd.rnChronicles (ISSN 0887-5731) rs publishedrnmonthly tor $39.00 (foreign subscriptions add $12rnfor surface delivery, $48 for Air Mail) per year byrnThe Rockford Institute, 934 North Main Street,rnRockford, IL 61I03-706I. Preferred periodicalrnpostage paid at Rockford, IL and additional mailingrnoffices. POSTMASTER: Send address changes tornChronicles, P.O. Box 800, Mount Morris, IL 61054.rnThe views expressed in Chronicles arc thernauthors’ alone and do not necessarilv reflectrnthe views of The Rockford Institute or of itsrndirectors. Unsolicited manuscripts cannot bernreturned unless acconrpanied b’ a self-addressedrnstamped envelope.rnChroniclesrnVol.21, No, 6 June 1997rnPrinted in the I ‘nited States of AincriturnPOLEMICS & EXCHANGESrnOn Judicial Tyrannyrn”First Things Last” (March 1997)rnevinces the sharp analysis and pungentrncriticism we have come to expect fromrnSamuel Francis. However, I disagreernwith him on one point. Francis contendsrnthat the controversial “laws” made by thernSupreme Court are mereK’ “permissive”rnin nature. Thus, unlike Sir ThomasrnMore, who was commanded to sign anrnoath he regarded as untrue and morallyrnrepugnant, American citizens today arernnot commanded to have abortions, orrnperform euthanasia. This is true, but irrelevantrnto the problem at hand. Judicialrnsentences regarding constitutional lawrndo not directly command or prevent anyonernfrom doing anything. Rather, constitutionalrnlaw consists of rules whichrngovern the making of further rules, andrntherefore constitutional law binds peoplernonly in their public capacitv, insofar asrnthey make, administrate, and enforcernlaws. In order to appreciate the alarmrnsounded by the First Things symposium,rnwe need to sec how a constitutionalrn”law” can impair the ability of the peoplernto remedy an injustice through the politicalrnprocess. This is not merely a “permission”rnto an individual (to have anrnabortion, to order a physician to kill him,rnto enjoy a public square free of religiousrnmessages); it is a restriction on the abilityrnof the people to make or change lawsrnthat are necessarv for the common good,rnand such restrictions become part of thernsocial contract. When these same restrictionsrnarc made ultra vires, withoutrnauthority, they usurp what is “common”rn—not mere permissions to individuals.rnSo, the First Things symposiumrndoes not just allege that the SupremernCourt makes “laws” permitting immoralrnbehavior, but that the social contract isrnbeing steadily eroded to the injury of allrncitizens.rnRecall Jefferson’s brief against thernCrown: “He has refused his Assent tornLaws, the most wholesome and necessaryrnfor the public good. . . . He has forbiddenrnhis Governors to pass laws of immediaternand pressing importance…. Forrnsuspending our own Legislatures, andrndeclaring themselves invested with Powerrnto legislate for us in all cases whatsoever.rn. . . He has abdicated Governmentrnhere.” As a son of the South, SamuelrnFrancis surely understands that Jefferson’srncase did not rest on the lone individualrnexercising his private consciencernagainst allegedly wicked laws. Rather,rnJefferson complains about royal decreesrnwhich impair the ability of the people tornbe political: that is, to deliberate in publicrnassemblies, and to frame laws conducivernto their common well-being.rnThere is not the slightest hint of a “subjective”rnprivate complaint from individualrnmoral conscience.rnSo, too, the First Things symposiumrnurgently raises the problem of a Courtrnthat gradually, but persistently, changesrnconstitutional rules to favor the permissivernliberty of individuals against the politicalrnliberty of the people. Should thisrntendency go unchecked, the problem ofrnobedience is irrepressible. One cannotrntender political obedience to a principlernthat destrovs the very conditions of politicalrnorder. The First Things symposiumrndid not advocate private judgment aboutrnthe “higher law” as a remedy to thernCourt’s usurpations. While we can berncriticized for failing to develop concreternsolutions, the symposium was not intendedrnto grind the mills of Beltway policy.rnOur chief point is that the devolutionrnof the social contract will forcernindividuals to consult their private consciencernin lieu of proper constitutionalrnorder. That is precisely the result we arerntrying to prevent.rnSamuel Francis accuses certain neoconservativcsrnof being amoral servants ofrnthe status quo. It would be very unfortunaternif his own polemic falls into the traprnof regarding e cry criticism of authorityrnas nothing more nor less than an exercisernof private conscience. If that is true,rnthen I cannot see any substantive differencernbetween Mr. Francis’s position andrnthe one he attributes to some neoconservatives.rnThe conservative should notrnhave to choose between paleo- and neo-rnHobbesianisms.rn—Russell HittingerrnWarren Professor of Catholic StudiesrnResearch Professor of LawrnUniversity of TulsarnTulsa, OKrnnmmm… 1-800 – sii – 5459rn4/CHRONlCLESrnrnrn