On judicial usurpation

By Phil Lawler (bio - articles ) | Nov 24, 2003

The flagrantly anti-democratic approach to gay "marriage" in Massachusetts recalls an important in-house debate among American conservatives, several years ago.

It all began when First Things put together a symposium on "judicial usurpation of politics," and asked a group of very perceptive writers whether the unchecked activism of a few unelected judges could actually undermine the legitimacy of the American government. Some conservatives said Yes. Others were angry that First Things even raised the question.

Now, with 4 unelected judges in Massachusetts having unilaterally changed the definition of marriage, we're once again confronted with the question: At what point does this judicial activism become a crisis for the American regime?

That old debate is worth re-reading. And our friends at Spence Publishing have published the whole controversy in paperback book form, now available for the laughably low price of $7.17.

Phil Lawler has been a Catholic journalist for more than 30 years. He has edited several Catholic magazines and written eight books. Founder of Catholic World News, he is the news director and lead analyst at CatholicCulture.org. See full bio.

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  • Posted by: - Nov. 28, 2003 4:31 PM ET USA

    I didn't suppose that Cardinal George gave up his American citizenship when he became a priest, bishop, or cardinal. I would take the consistory of cardinals, bishops' synods, and ecumenical councils to be democratic institutions, as well as legislative. And one would think that a bishop especially would be qualified to speak on constitutionalism, since the Catholic Church has indeed been faithful to its constitution, developing it not subverting it, for 2000 years.

  • Posted by: - Nov. 27, 2003 2:44 AM ET USA

    WF & Phil: What grounds do you propose for impeachment? Their reasons for disregarding the common law definition of marriage are set out in the text of their decision. You may not agree with their argument, but it was not capricious activism. John J.: Well said!

  • Posted by: Phil - Nov. 25, 2003 9:35 AM ET USA

    WF, judges in Massachusetts are appointed for life. They can be impeached, but that would require more principle than you're likely to find in our state legislature today.

  • Posted by: - Nov. 24, 2003 9:38 PM ET USA

    Phil, I'm curious what, if any, checks there are against the judiciary in Mass. Is there impeachment, recall? Are the judges life-appointees or elected or subject to occaisional plebiscite? Are any of the legislators seriously considering removing these judges? In my state, judges are appointed but must stand for a yes/no retention vote regularly. None would try to pull what your justices have. There would be quite a shockwave if the Mass. legislature simply opted to impeach rather than comply.

  • Posted by: John J Plick - Nov. 24, 2003 9:30 PM ET USA

    It amazes me that a Cardinal in our present Church circumstances would say such a thing. First of all, he (the Cardinal) occupies a place in a government that does not even recognize a legislative branch, and that "government " has allowed a climate of extraordinary abuse to exist for some time. Cardinals and Bishops rarely listen to the people, yet perhaps now they are experts in democracy?

  • Posted by: - Nov. 24, 2003 8:38 PM ET USA

    Every one should read "Original Intent" The Courts,the Constitution& Religion By David Barton until you do,you will have no idea as to what radical Judges have done the Constitution and Law in this country