Courting trouble: only a frontal assault on the power of the courts can restore America's constitutional balance.

Mr. George is a professor of politics at Princeton. Mr. Ponnuru is NR's national reporter.

The campaign to combat judicial usurpation seems to be fizzling. While conservatives have talked about ambitious projects like impeaching out-of-control judges or amending the Constitution to require judges to hew to the original understanding of its provisions, they have been unable even to slow down the Senate's assembly-line confirmation of Clinton judicial nominees. True, Republicans have shot down easy targets like Frederica Massiah-Jackson, whose outlandishly pro-criminal-defense record embarrassed even liberals. But overall, the Republican Senate is confirming judges faster than an earlier Republican Senate confirmed President Reagan's nominees.

Republicans appear simply to lack the will to take on the courts. And who can blame them? The public isn't up in arms about judicial imperialism. The issue isn't easy to publicize either, especially through a hostile media. Despite what is now a long history of abuses, federal judges in general are respected (even though they stand at the intersection of lawyers and politicians). Finally, politicians often don't mind having their powers usurped when it relieves them of responsibility for controversial matters.

But Republicans duck the issue at their peril. All the supposed conservative judicial triumphs of recent years, from rolling back racial preferences to restoring federalism, have been won by narrow majorities; with three Supreme Court appointments likely in the next five to seven years, all of them could be reversed. Already, only a few circuits practice self-restraint. And as President Clinton appoints more judges, the courts will grow increasingly effective in blocking Republican public-policy initiatives.

If Republicans don't care about constitutional considerations, they should consider civic and political ones. Courts have struck down state partial-birth - abortion bans on grounds stretching from the specious to the ludicrous. Thus, the ''compromise'' position that has endlessly been urged on pro-lifers -- leave the abortion license in place, and settle for restrictions at the margin -- is not permitted; even infanticide can't be banned. Pro-lifers will just have to go back to the arduous task of passing a constitutional amendment to undo the courts' handiwork. As the courts move leftward, this will not be the only constitutional amendment conservatives will have to demand.

And that is the optimistic view. If the rules are going to be changed to their systematic disadvantage, why should conservatives participate in normal politics at all? Some social conservatives will be tempted to retreat from politics; others, to resort to an unproductive and morally wrong-headed extremism or even to extra-constitutional resistance. Since social conservatives are the single largest portion of the GOP's base, either reaction would threaten its political health.

Self-interest, then, should move Republicans to act -- and more effectively than in the past. They have tried to combat judicial usurpation by appointing originalist judges and by proposing constitutional amendments. Neither strategy has worked. That's not surprising: the courts' excessive power is a structural problem not amenable to piecemeal solutions. The problem, that is, is less that liberals sit on the bench and make bad decisions than that they have a largely unchecked power to do so.

Any proposed remedy should both be educational (and thus of value even if the campaign for it fails) and solve the core problem (in case it succeeds). Some of the institutional fixes conservatives have proposed -- e.g., term limits for judges -- may or may not have merit, but aren't focused enough to meet these tests. Again, these proposals fail to challenge judicial imperialism at its root: the courts' claim always to have the last, authoritative word on constitutional interpretation.

Constitutional amendments to overturn particular judicial decisions don't challenge it either; indeed, they arguably also concede the courts' reading of the unamended Constitution.

But the Founders never intended to give the federal courts a monopoly over the interpretation of the Constitution. Marbury v. Madison, often cited in support of a monopoly, actually stands for a far more modest claim, namely that courts must apply the Constitution; nowhere does it deny that the other branches must do the same according to their own best lights. It stands, in other words, for constitutional supremacy, not judicial supremacy.

Abraham Lincoln, often reckoned the most profound student of the Founding in our political history, also challenged the idea of judicial supremacy over constitutional interpretation. Faced with an outrageous usurpation of democratic authority by the Supreme Court in Dred Scott v. Sandford, Lincoln said in his first inaugural that while court decisions must be respected in particular cases, they need not be considered binding as policy on other branches of government. His words are still apt: ''If the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.'' From time to time, the people themselves must resolve a constitutional question by the political act of supporting one branch's interpretation over another's. There is no scandal in this, since the Constitution, by its own understanding, derives its authority from the will of the people.

In our own time, many conservatives accept judicial supremacy, merely caviling at this or that decision. Some, especially libertarians, even accept the courts' self-presentation as the guarantor of our freedoms, and would worry about the safety of liberty if the courts were forced to retrench. If, for example, Congress were to exercise its power under Article III, Section 2 of the Constitution to eliminate the federal courts' jurisdiction over, say, term limits, many conservatives would worry that this structural check on the courts could itself be abused; correct court decisions could be overturned by a majority vote.

These fears are well founded. Any power can be abused, as conservatives have always insisted. But it is also true, as Justice Felix Frankfurter repeatedly warned, that the only ultimate protection for our rights is a general public commitment to them --a commitment eroded when the task of protection is entrusted solely to an unelected elite. Many legislators today don't think about the constitutionality of their bills, despite their oaths of office, because they rely on the courts to sort it out. Nor has judicial supremacy proved a reliable ally of the individual rights we actually possess: consider, for starters, the right to life.

Congress, however, now has an opportunity to begin returning the judiciary to its constitutional dimensions. One year ago, the Supreme Court struck down the Religious Freedom Restoration Act. RFRA was a response to an earlier Supreme Court decision holding that the free exercise of religion does not exempt believers from laws that incidentally impede the practice of their faith. RFRA attempted to restore those exemptions, so that, e.g., the Native American Church's sacramental use of peyote would not run afoul of drug laws. The Court held that Congress had impermissibly second-guessed it.

Conservatives were split, some supporting the law and others the Court. NR found itself in a lonely position, opposed to both. The Justices' decision to strike down RFRA aggrandized the courts -- but so did RFRA, by giving them a sweeping, indeed conceptually boundless, discretion to grant exemptions from laws. What was worthwhile about RFRA was one of the features that got it struck down: it was the first significant attempt by Congress in decades to assert its power to ''enforce'' the Fourteenth Amendment, granted in its fifth section. (In this context, ''enforce'' can be understood only as ''give meaning to.'')

Now one group of social conservatives is pushing Congress to re-enact RFRA with an accompanying resolution denouncing the Court's decision as wrong and usurpative. Another group supports Rep. Charles Canady's (R., Fla.) Religious Liberty Protection Act, which is essentially RFRA II. This time, however, Congress is said to have authority for the bill under a combination of the commerce clause and the spending power. Thus the bill jettisons RFRA's strong point -- its challenge to the courts -- while implicitly going along with the post - New Deal loose view of the commerce clause (just when the courts are recovering the older one). So conservatives who usually work together now find themselves in conflict.

Whatever the merits of these proposals, a seemingly unrelated bill before Congress offers conservatives a chance to unite in an important strike against judicial usurpation. Freshman Rep. Robert Aderholt (R., Ala.) has sponsored, and Gary Bauer's Family Research Council promoted, a little-noticed bill called the Ten Commandments Defense Act. It would erect a ''federalism shield'' allowing state officials to display the Decalogue. (A controversy has arisen over Alabama judge Roy Moore's so doing in his courtroom.) Invoking its own authority to interpret the Tenth Amendment, Congress would declare that such display is a power reserved to the states.

Some commentators say that the congressional action proposed in the Aderholt bill is merely ''declaratory'' and thus of no legal effect. But this criticism presupposes the very judicial supremacy that the federalism-shield law challenges. Moreover, the bill may prove popular: an earlier Aderholt resolution in favor of allowing the public display of the Commandments passed the House 295 to 125. And it would plant in the law and the political culture a profoundly important principle. It would be a small way for Congress to regain some of the authority it has ceded to the judiciary.

The judges are likely to strike the bill down for that very reason. But raising the temperature of judicial politics is not a bad thing. By their actions, the judges have put themselves squarely in the political arena, and until they withdraw they are the proper subject of political battles. The goal of conservatives should be to provoke a constitutional crisis -- or, more accurately, to expose the one that judicial usurpation has already created.