Con job.

To live as a religious believer in the terrestrial city is necessarily to experience divided loyalties. Short of the Kingdom of God, complete justice can never reign, and all temporal allegiances must be provisional. The modern American social order is sufficiently benevolent that we are usually only dimly aware of this tension. For the editors and contributors to a symposium in First Things, an increasingly influential conservative journal on religion and public life, however, recent judicial decisions have put the issue in stark relief.

The November symposium was entitled "The End of Democracy?: The Judicial Usurpation of Politics." The symposiasts -- Robert Bork, Russell Hittinger, Hadley Arkes, Charles W. Colson, and Robert P. George -- condemned recent judicial activism, particularly regarding abortion, euthanasia, and homosexuality, as both procedurally undemocratic and substantively immoral or unjust. Hittinger, a professor at the University of Tulsa, argued that these decisions not only "deny protection to the weak and vulnerable" and "systematically remove the legal and political ability of the people to redress the situation," but raise the invidious principles to the level of "essential features of the constitutional order." Further, the Supreme Court has set itself against religious believers by nullifying laws allegedly motivated by religion or even the belief that "there is an ethic and a morality which transcend human invention" (Justice Antony Kennedy's words in Romer v. Evans).

While most conservative analyses of the courts stop at or before this point, FT also discussed possible responses to this "usurpation." What troubled most of those who have since commented on the symposium was the editors' introductory statement that we may "have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime." The very legitimacy of the "regime," they argued, was in question, and those conscientious citizens might eventually -- perhaps soon -- have to consider civil disobedience or even "morally justified revolution." This use of the word "regime" was confusing: some critics took "regime" to mean something illegitimate by definition, like "junta." Further, did illegitimacy attach to the Federal Government itself, as some paramilitary groups suggest, or merely to the practice of judicial rule? This confusion caused many commentators to miss the conditionality of the editors' position: that "we are witnessing the end of democracy" and will have to consider lawbreaking if the courts are not restrained, by themselves or others.

Of the symposiasts, only Colson went as far as (if not further than) FT's editors. Writing that "a showdown between church and state" --for which believers should prepare but not hope -- "may be inevitable," Colson surveyed the key Christian texts on the limits of political obligation, including Martin Luther King Jr.'s Letter from a Birmingham Jail. His conclusion: "I have begun to believe that . . . we are fast approaching [the] point" at which "a believer must resist" the government. Such resistance would, in the first instance, take the form of persuasion. "Through her teaching and preaching office, the Church would need to expose the nature of the state's rebellion against God -- in effect, bringing the state under the transcendent judgment of God." If that failed, active disobedience would become necessary. The next step would be revolution, but "this point, I believe, we have not yet reached." Unless that point is reached, religious conservatives must "work relentlessly within the democratic process," and discussions of resistance should remain academic.

The others offered less drastic suggestions. Bork repeated his recent call for a constitutional amendment to allow the Congress to review court decisions by a majority vote or to eliminate the courts' power of constitutional review. He also suggested that elected officials not comply with unconstitutional Supreme Court decisions -- a position with a long history in American politics. Hittinger urged conservatives to treat issues like abortion as part of a "broader constitutional crisis" and, like Bork, advocated legislative remedies. If these measures did not work, he thought non-violent civil disobedience, presumably on the model of the civil-rights movement, would become necessary.

Arkes, a professor at Amherst College and longtime NR contributor, offered no prescriptions. His distinct contribution was to focus attention on the implicit threat of the new judicial activism to people of orthodox faith, who he believes could find themselves excluded from the academy and the professions as the principle behind Romer -- that traditional moral views on homosexuality are tantamount to bigotry -- unfolds to the limits of its logic. Lastly, George, a professor of politics at Princeton University, labeled the current situation a "crisis" and "a failure of American democ-racy." He called for "conscientious objection," as when physicians in U.S. military hospitals refuse to perform abortions. He concludes that citizens must ask "whether our regime is becoming the democratic 'tyrant state' about which [the Pope] warns."

The reaction to the symposium was as sharp as it was swift. Leading neoconservatives Gertrude Himmelfarb, Walter Berns, and Peter Berger resigned their affiliations with FT. Bork wrote a letter disavowing any doubts about "the legitimacy of the entire American 'regime"' (his article used the term "illegitimacy" only in connection with the Court's usurpations). NR ["First Things First," Nov. 11] also editorially criticized the suggestion that the regime was illegitimate. Norman Podhoretz, among others, detected in the symposium a whiff of the anti-American radicalism that had made the New Left so noisome in the Sixties. In the Weekly Standard, David Brooks relayed many of these charges and added two more: 1) that the symposiasts' fealty to abstract principle cut against the Oakeshottian "Temper" he took to be essential to conservatism, and 2) that their pessimism was neither warranted nor likely to serve conservatism's political prospects.

In her resignation letter, Miss Himmelfarb had issued her own tactical warning: FT's "irresponsible" conduct would make it easier to portray "any attempt by conservatives to introduce moral and religious considerations into 'the public square"' as dangerous. Liberals promptly sank to the challenge. Garry Wills, attentive to nuance as ever, claimed in a New York Times op-ed that the symposiasts "made arguments indistinguishable from those advanced by the militias." (Evidently Mr. Wills knows militias that cite classical philosophers and papal encyclicals and worry more about assisted suicide than gun control.) It was probably inevitable that some journalist would take the caricature a step further.

Which brings us to Jacob Heilbrunn. According to "Neocon v. Theocon," his cover story in The New Republic, FT brought into the open "a full-fledged war between two leading groups of conservative intellectuals." In one corner are "the mostly Jewish neoconservatives," followers of political theorist Leo Strauss, who believe that "America was founded on an idea -- a commitment to the rights of man embodied in the Declaration of Independence." The "theocons," on the other hand, are

mostly Catholic intellectuals who are attempting to construct a Christian theory of politics that directly threatens the entire neoconservative philosophy. This attempt, in the eyes of at least some of the neocons, also directly threatens Jews. . . . The theocons, too, argue that America is rooted in an idea, but they believe that idea is Christianity. In their view, the United States is first and foremost a Christian nation, governed ultimately by natural law.

Heilbrunn describes the theocons as "Thomists, would-be prophets of a new Age of Aquinas." Their "founding father" is the theologian Germain Grisez, their public face that of Alan Keyes.

Heilbrunn's New Republic article is directed not so much against the "theocons" as against the neocons. Michael Lind, Heilbrunn's sometime collaborator, has cast crafty neoconservative Jews as having opportunistically ascended to the intellectual leadership of a conservative movement whose rank-and-file is made up of anti-Semitic evangelical Christians. Heilbrunn's article is perhaps best seen as the second installment of this "sellout of the neoconservative Jews" thesis: now they've opportunistically allied themselves with even craftier anti-Semitic Catholics.

It's a well-constructed story line: gripping, coherent -- and entirely fictional. The First Things symposiasts included two Catholics (Hittinger and George), true, but also two Protestants (Bork and Colson), and one Jew (Arkes). Heilbrunn doesn't mention that Bork is not a Catholic, but takes note of "his staunchly Catholic wife." (George's staunchly Jewish wife doesn't make an appearance.) The editors responsible for the introduction to the symposium included one Catholic (editor-in-chief Fr. Richard John Neuhaus), one Lutheran (editor James Nuechterlein), and one Jew (managing editor Matthew Berke).

A more central flaw in Heilbrunn's story is his utter (and at times laughable) incomprehension of Thomist natural-law theory, which is a branch of philosophy and not of theology. Indeed, it reminds me of the classic academic put-down to empty arguments: "That's not right; it's not even wrong."

Adherents of natural law believe that moral truths can be discovered through reason alone. As Prof. George puts it, "What people like me are arguing is that the standard of public policy should be what reason can understand. So a view should stand or fall based on its reasonableness. Biblical tradition can be the carrier of wisdom on matters like same-sex marriage, as can the Talmud. But we don't appeal to the authority of the Bible or of the Catholic Church in making our case. We appeal to principles of rationality that are available to all people." So, for instance, when George and John Finnis of Oxford University testified in Romer -- an incident Heilbrunn records -- not once did they invoke the Bible or any authority other than reason itself; their reasoning was available to, and arguable by, non-believers. Indeed, natural law's Protestant critics have disparaged it precisely for its reliance on human reason in matters of moral consequence. If Thomism were merely a stalking horse for a "Christian nation," then people like David Novak -- a rabbi who is also a natural-law theorist, student of Grisez, and member of FT's editorial board --shouldn't exist.

Similarly, Heilbrunn's account of the conservative "battle over the identity of the American nation" doesn't even rise to the level of being wrong. If there is a distinctively conservative theory of American nationhood, it isn't any sort of "idea nation" thesis, let alone a "Christian nation" idea, but rather the culturalist view of nationhood adumbrated by NR and in particular by John O'Sullivan (a Catholic, for those keeping score). Heilbrunn provides no evidence for his claim that the "Christian nation" thesis is central to "American Catholic conservatism," because there isn't any. Perhaps R. J. Rushdoony or John Lofton believes in religious tests for office, but no prominent mainstream conservative intellectual does. NR's David Klinghoffer, in some of his writings, seems to endorse the view that divine law should sometimes be imposed on non-believers; I can't think of a contemporary conservative Christian intellectual who agrees. Fr. Neuhaus and Prof. George both subscribe to the "neoconservative" view that the principles of the Declaration of Independence constitute American nationhood. It is Heilbrunn who can't make up his mind about the Declaration. Judge Bork and the theocons are damned for rejecting it, Alan Keyes for embracing it too closely. (It does, after all, speak of people being "endowed by their Creator with certain inalienable rights.")

The attempt to cast Germain Grisez as the eminence grisez of the Catholic conspiracy against democracy is singularly inappropriate, since Grisez isn't primarily a political theorist and indeed did not hear of the FT symposium until after publication. Moreover, Grisez, George, and Finnis (who believe moral truths can be derived from self-evident first premises) are heterodox among Thomists (most of whom think moral truth can be derived from human nature). Prof. Hittinger wrote an entire book, A Critique of the New Natural Law Theory, rebutting Grisez.

And Fr. Neuhaus belongs to neither camp. As one might expect of a convert from Lutheranism, he's drawn more to Augustine than to Aquinas. Meanwhile, Alan Keyes, the supposed champion of the Catholics who are supposedly at odds with Jewish Straussian neocons, is a Straussian -- and one who devoted a pre-primary speech in New Hampshire to blasting the idea of a "Christian nation." Finally, Norman Podhoretz -- who is surely a neocon if the term means anything any more -- is no Straussian. Heilbrunn's map of the Right just doesn't do justice to the intellectual geography he tries to cover. It's rather like those early maps of Africa that, though topographically unreliable, confidently declared: "There be lions here."

Heilbrunn's journalistic malpractice extends to his use of quotation and paraphrase. He describes Miss Himmelfarb's letter as having "warned that Catholics threatened to undermine the very thing they claimed to want, the ordering of American society according to Judaeo-Christian ethics." In fact, her letter said nothing about Catholics; Heilbrunn was putting words in her mouth to make it seem that she accepted his Jews-v.-Catholics framework. He deploys his shoddiest tactic, however, on Prof. George. In his FT essay, George wrote that the "doctrine of the necessary conformity of civil law to moral truth long predates the rise of modern democracy. It is present in both Plato and Aristotle, and was given careful, systematic expression by St. Thomas Aquinas. It has been a central feature of the tradition of papal social teaching." George's reference to Plato and Aristotle is inconvenient to Heilbrunn's argument that Catholic "theocons" are trying to impose their religious views on the nation. So he simply uses ellipses to eliminate it. (In his article, the second sentence of the passage reads, "It . . . was given careful" etc.) Heilbrunn also chooses not to quote George's comment a few paragraphs later: "These are no mere sectarian teachings. Belief that laws and the regimes that make and enforce them must be evaluated by reference to universal standards of justice is shared by people of different faiths and of no particular faith."

Heilbrunn's cascading confusions would matter little (except to those whose views he distorted) were they not coupled with astonishingly reckless charges. Take the claim, quoted above, that the so-called "theocon" enterprise "in the eyes of at least some of the neocons, also directly threatens Jews." No on-the-record or even off-the-record quotes are provided for that incendiary remark; nor is any argument for the plausibility of the underlying claim.

Toward the end of his article Heilbrunn casually slanders Thomists, about whom he demonstrably knows nothing, as "not so much anti-American as un-American." Insinuations of Catholic disloyalty to America, reckless charges of Catholic anti-Semitism, slanderous portrayals of Catholic elites plotting to build a theocracy: Heilbrunn traffics in the most cliched forms of anti-Catholic bigotry. Perhaps he should have entitled his article Protocols of the Elders of Rome.

Presumably almost all conservatives, and other people of good will, will reject TNR's attempt to drive a wedge between Catholics and Jews. But that is not to deny that the FT controversy has revealed real intra-conservative divisions. One of these divisions has less to do with Leo Strauss or Thomas Aquinas than with Thomas Hobbes, the early modern theorist of absolute sovereignty. The Hobbesian streak among conservative critics of the symposium was most evident in NR's editorial, which argued, "Our general obligation to obey the laws rests upon the fact that the laws protect us (against our fellow man), not upon the ultimate justice of the government's founding, still less (fortunately) upon its general moral character." Whatever else might be said of this view, it does seem at the very least in tension with the principles and spirit of the American Revolution, in particular with the principle of majority consent.

But the influence of Hobbesianism can also be detected in the insistence of many conservatives that the "legitimacy" of a political status quo should not be the subject of sustained public argument. To be sure, not every proposition is worth discussing. But once one has been raised, to say that it should not be discussed is self-defeating. More importantly, as FT has noted, the Supreme Court has itself raised the question of the legitimacy of the law. As Notre Dame Law Professor Gerard Bradley observes in his brilliant essay "Shall We Ratify the New Constitution?" recent Supreme Court decisions (most notably Casey and Lee) can reasonably be construed as asking the American people "to ratify and thereby legitimate" a constitution of the Court's devising. In that light, the First Things symposium was simply a resounding, "No!"

The editors' reference to Nazi Germany -- which outraged many of the critics -- is a dicier issue. Quoting the papal encyclical Evangelium Vitae on the general point that a law's binding force on the conscience depends on its morality, they noted that the footnotes in the encyclical refer to earlier papal statements that specifically condemned Nazi crimes. The editors add, "America is not and, please God, will never become Nazi Germany, but it is only blind hubris that denies it can happen here and, in peculiarly American ways, may be happening here." The passage, in other words, was intended as an antidote to an uncritical version of American exceptionalism that denies the possibility that human rights could ever be tyrannically violated here. Whether or not the argument was tactfully made, it ought to be openly debatable.

For many of the neoconservative critics of the symposium, the anti-American rhetoric of the 1960s was a formative, and traumatic, political experience. But the parallel is weak, the result of analyzing arguments formally rather than materially. Quips Bradley, "Except for the hair, Hadley Arkes doesn't have much in common with Abbie Hoffman. Nor is Jerry Rubin the same as Dietrich Bonhoeffer." Or as Fr. Neuhaus puts it, "There is nothing so elementary as that there are criteria for just and unjust government. It astonishes me that people think that we came up with something new or something retrieved from the ash heap of the Sixties."

A very mild anti-American strain does indeed exist on the Right --think of the number of conservatives who interpreted President Clinton's re-election as a verdict on the intellect or morality of the American public -- but conservatives remain more likely to make the opposite mistake of uncritically embracing populism. I'll get worried about anti-Americanism on the Right when I see Neuhaus burning a flag.

If anything, the symposium could be faulted for laying insufficient stress on the permanent nature of the tension between the demands of God and those of Caesar. Putting the symposium in such a context would have raised the needed alarms without being alarmist. It might then have reminded conservatives that liberty requires eternal vigilance -- without apocalyptic rhetoric.

Meanwhile, if the Right is repeating an error of the late Sixties Left, perhaps it's factionalism: a tendency for intellectuals to get caught up in theoretical disputes while ignoring points of concordance that have far more practical relevance. Almost all conservatives agree that the federal judiciary has needlessly and destructively intervened in the nation's social and moral controversies (most recently when it blocked implementation of the California Civil Rights Initiative). Almost all conservatives agree that it's important to address the problem. If this debate concentrates the conservative mind on a program to rein in the courts and a strategy to advance that program -- if it makes efforts to curtail judicial review respectable -- all conservatives would have reason to cheer. Some conservatives may balk at delegitimizing the courts, but an aggressive campaign to demystify them is long overdue. Justice Scalia's recent dissents offer a model of how to do this.

First Things may also have performed another public service. After more than 16 years of sitting in the back of the Republican bus, social conservatives are getting restive. Already, important players like Gary Bauer and Phyllis Schlafly are taking shots at Ralph Reed's accommodationism and moving into Pat Buchanan's orbit --which is to say, out of their alliance with the rest of the Right. Something good will have come of this debate if conservative intellectuals are awakened to grassroots discontent with the party's handling of moral issues, most importantly abortion. If the conservative coalition is to be kept together, that sentiment is going to have to be responsibly accommodated.