Scalia (yet once more)

[stoke001 at maroon.tc.umn.edu]

Sandy asks whether The Abortion Republic would still be morally
illegitimate, and thus justify Christian resistance (form of which
left open for discussion), if adopted by morally legitimate
majoritarian deliberative popular self-government.

In a nutshell:  Yes, the human law would still be monstrously unjust,
warranting resistance.  It does seem to me, however, that the form
which such resistance takes -- in particular, quasi-insurrectionary
violence against the regime, or peaceful attempts are persuasion --
depends on whether one thinks that the unjust law is the product of
an unjust process that continues to stand in the way of
self-correction through non-revolutionary means.  To me, that means
that the fact of judicial usurpation of proper constitutional
governance and hijacking of the specific provisions of the
Constitution is relevant to a citizen's consideration of his or her
duty to continue to follow the "law" of the state.

This is a difficult problem for me (and thus, one that occupies much
of my academic writing).  I do not regard the institution of judicial
review as intrinsically illegitimate.  Properly applied, it merely
gives effect to the decisions of one majority (the people, at the time
of the framing) over those of another (the people, today).  There are,
of course, numerous issues about whether *that* is illegitimate, but
the assumption of a written Constitution is that it is.  (I view
Article V as the crux of the problem of the Constitution's
legitimacy.)  If one buys into the legitimacy of judicial review,
one will have to accept that the judges can make some errors.  This
is regrettable, to be sure, but only becomes deeply problematic if
the errors cannot be corrected.  I view it as vitally important
to the legitimacy of our constitutional system -- and thus the
obligation to work within the Regime -- to consider the extent to
which errors can be corrected (1) by the judiciary itself; (2) by
the checks exercised by other branches on the judiciary; and (3)
by the people directly, through amendment.  The legitimacy of the
Regime is weakened, in my view by (1) a Casey-like view of (selective,
and dishonest) near-absolute stare decisis, in the sense of deliberate
entrenchment of substantive decisions that a majority of the justices
would view as erroneous; (2) judicial supremacy, in the sense that
other branches of government are thought bound by the decisions and
opinions of the judiciary, and may not exercise executive or
legislative "review" of the validity of the judiciary's constitutional
judgments; (3) a hugely anti-majoritarian amendment process.  *All* of
these features of our constitutional system must show some more
"give", or we have a Regime in which Judicial Supremacy become's
America's Fuhrer principle, and resistance to state horrors is left
with few options other than violence against the Regime.

Throughout the 1980s I remained optimistic that the route for
correction of judicial errors was to bring the issue back to the
judiciary, and to work for the appointment of justices likely to
reach sound conclusions with regard to constitutional
interpretation.  Casey leads me to wonder whether this was a
misguided trust in the possibility of judicial self-correction (or
simply indication that the appointments weren't good enough).

For the record:  I think that the fourteenth amendment's protections
of due process and equal protection for "persons" do not, of their own
force, authorize courts to invalidate state laws failing to protect
unborn children from the private violence of abortion.  However, I
think that the language of the fourteenth amendment is sufficiently
broad to permit Congress to choose a broader understanding
of "persons" than the courts could enforce on their own, and thus
could employ the section five power to accomplish such a result.  The
issue, in my mind, is exactly parallel to RFRA.

Michael Stokes Paulsen
University of Minnesota Law School