The Rules of the Game

Paul Hill sits in a lonely cell awaiting his final sentence. The jury that convicted him of murdering an abortion doctor and his body-guard outside a Florida clinic recommended the death penalty. The judge will soon decide. But whether or not Hill is executed, his case raises troubling questions that haven't been answered. Principally: What could cause a former Presbyterian minister to kill two people? Was Hill a half-crazed religious zealot, as the press painted him? That would be an easy explanation. But it's apparently not quite true. At the trial, Hill was rational, clear-headed, and seemed to know exactly what he was doing. What, then, moved him to such a dreadful act? While there's no excuse for Hill's crime, part of the answer, I believe, may be found in the way federal courts have been systematically closing off access to the political process. Take an example from California that has nothing to do with abortion. In November, voters passed Proposition 187 to deny illegal aliens benefits like welfare. But a federal judge immediately issued a restraining order over-ruling the new law, at least temporarily. The same thing recently happened in Cincinnati, Ohio, and in Washington state: Reasonable laws on controversial issues approved by a vast majority of voters were overturned by federal judges. When judges act this way they are practicing what scholars call "judicial activism." It is based on the theory that voters can't be trusted with self-government in local jurisdictions, so federal judges force them to accept what the liberal elite wants as national policy. The abortion debate has been dominated by judicial activism ever since the Supreme Court overturned all 50 states' laws against abortion in 1973. In case after case since, federal judges have slammed the door to political change for millions of prolife Americans. As columnist Joe Sobran notes, judges have done "everything possible to make sure that peaceful political methods would be totally unavailing." And this judicial activism, he says, "created the dilemma [Paul] Hill shot his way out of." Yet this is the very dilemma our founding fathers tried to prevent. Government, they declared, derives its just powers from "the consent of the governed." Today, however, as soon as the people consent to laws, some judge—solely on the basis of elite ideology— denies them the right to govern themselves. The founders denounced this as a "usurpation" of the people's right to self-government. And what happens when judges close the political process to fair, free debate and change? The answer is that people are shut out and feel shut out. They are driven to the margins of society, and sometimes—like Paul Hill—they react in violence. That is no excuse, I emphasize; Paul Hill should be punished for his crimes. But America will never resolve the dilemma Paul Hill shot his way out of until the federal courts once again respect the free democratic process. Paul Hill was subsequently sentenced to two life sentences for violating the Federal Freedom of Access to Clinic Entrances Law. He was also given the death penalty by the State of Florida for killing the abortionist and his escort.

12/1/94