Since at least the 1960’s, federal judges in the United States have overturned a number of state and federal laws dealing, broadly speaking, with marriage, sexuality, and the family—most notoriously in the 1973 Roe v. Wade decision on abortion.  And numerous commentators have pointed out the constitutional absurdity of these decisions, based on no clear text of the written Constitution but on “penumbras, formed by emanations from [the Bill of Rights],” as Justice William Douglas called them in the 1965 Griswold opinion invalidating Connecticut’s anticontraception statute.  Of course, the reason those opposed to such remnants of Christian morality have resorted to the judiciary in order to gain their ends is that rarely, if ever, would they be able to get their measures enacted by an honest appeal to voters.  The current debate on same-sex “marriage” is another case in point.  Neither in Hawaii nor in Massachusetts—two very liberal states—would a majority of voters ever approve same-sex “marriage” in the foreseeable future.  So what we have in such cases are nothing but examples of “raw judicial power,” as Justice Byron White termed it in his dissent in Roe v. Wade.

Unfortunately, however, many of these critics and commentators who quite rightly point up these instances of judicial usurpation do not understand the issue completely.  For while complaining of the tyranny of unelected judges, they seem to think that, if only such measures were enacted by elected legislators, there would be nothing much to complain about.  Sen. Rick Santorum of Pennsylvania, for example, in a graduation address that he gave at Christendom College in 2003, said that,

While much of our culture is removing moral guideposts, so too is the government.  With this I have no dispute.  We are a representative democracy and eventually the collective conscience of the popular culture is going to be reflective [sic] in our laws.  My concern is the usurpation . . . by the United States Supreme Court, of the people’s rights, through their elected representatives, to decide these crucial moral issues and the resulting dulling of our collective consciousness and that this vital debate of who we are and what we’re about is being moved from the living rooms of America to the court room.

Similar were the remarks of Supreme Court Justice Antonin Scalia in his dissent in the 2003 case of Lawrence v. Texas, which invalidated Texas’s anti-sodomy statute.

Let me be clear that I have nothing against homosexuals . . . promoting their agenda through normal democratic means.  Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.  That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts.  But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else.

Now, what is wrong with what Senator Santorum and Justice Scalia say here?  Do not the people indeed have the right to determine such matters?  If not the people, then who?  Contrary to what Senator Santorum or Justice Scalia think, however, the people have no more right—either directly or through their elected representatives—to allow abortion or same-sex “marriage” or other such evils than unelected judges do.  There simply is no such right, because whatever authority a government exercises comes not from the people but from God, and God does not give governments authority to enact such legislation.

Our Declaration of Independence says that “governments are instituted among men” and that they derive “their just powers from the consent of the governed.”  This does not exactly accord with the traditional Christian view.  St. Paul said that “there is no authority except from God, and those that exist have been instituted by God” (Romans 13:1).  There is nothing wrong with the people choosing their rulers or their form of government.  But a ruler, even if designated by the people, receives his authority ultimately from God.  A man and a woman can freely choose each other in marriage, but the authority and duties of the husband and wife come not from their mutual agreement but from the divinely instituted order of the family.  The couple has liberty only as to whether and whom they will marry.  The essential order of marriage is from God.  It is similar in the political realm.  Rulers, however chosen, cannot lawfully enact anything contrary to the law of God.  Whether the rulers are kings, an aristocracy, or a popularly elected legislature makes no difference.  They govern as administrators of God and by His authority.

One of the wisest political writers of modern times, Gioacchino Pecci (1810-1903), better known as Pope Leo XIII, discussed these points exhaustively in a series of encyclicals beginning in 1885 with Immortale dei.  In his 1888 encyclical Libertas, he speaks of those

who affirm that the morality of individuals is to be guided by the divine law, but not the morality of the State, so that in public affairs the commands of God may be passed over, and may be entirely disregarded in the framing of laws.

He says of this position that its “absurdity . . . is manifest.”  And Pope Leo here is simply repeating what is part of the entire tradition of Christian wisdom.  Of course, this does not mean that a government is obliged to forbid by its laws every sin, for the tradition is equally clear that political prudence allows many acts that God will punish to remain unpunished by human law.  Thus, according to Saint Thomas (Summa Theologiae I-II:96:2), “by human law not all the vices are prohibited from which virtuous men abstain, but only the more serious, from which it is possible for the greater part of the multitude to abstain.”  This conception of law, then, does not point toward a tyranny but simply toward a subjection of human law, however enacted, to the law and sovereign authority of God.

Democracy is a perfectly legitimate form of government and can, at times, be the best form.  The democratic ideology that insists that the people have an inherent right to rule themselves, and thus are answerable to no higher authority, however, must be rejected.  In truth, the choice of democracy, or of any of the other just forms of rule that the ancients enumerated (monarchy, aristocracy, or a mixed regime), depends on political prudence, historical traditions, and accidental circumstances.  As long as the rulers seek to promote the common good, the type of regime that we have matters less than most people think.  Better a monarchy, for example, that governs with a genuine view toward promoting the common good than a faction-ridden democracy that has been hijacked by special interests.

In thinking about issues such as abortion, then, let us not be misled into supposing that the only problem is that our judges rather than our legislators have imposed the practice on us.  For the latter have no more right to do so than the former.  I am not sanguine about this point of view becoming widespread in the near future.  Still, however difficult it would be to convince the majority of our fellow citizens of its truth, it is the correct view.

Any attempt at political wisdom that ignores this point is simply avoiding facing the most important political question of all.