WASHINGTON, D.C. -- Let's face it: Most magazine articles have the half-life of Strontium 90. So it is hard to recall a single edition of a magazine that has caused as much discussion as the First Things symposium on "The End of Democracy" back in November. The symposium, for those of you who missed it, castigated in varying tones "the judicial usurpation of politics" (such as, for example, Judge Henderson overruling Prop. 209). But what really has tongues wagging was the editors' questioning "whether we have reached or are reaching the point where conscientious citizens can no longer give moral assent to the existing regime."

Whoa now. While no one on our side of the political center-stripe doubts that the judiciary is traducing government by the consent of the governed, itÍs another thing to suggest, however guardedly, that the time has come for us to begin regarding our country as "Amerika." A specter haunts the neoconservative mind: It is the specter, not of long-haired 60s radicals, but clean-cut members of the Christian Coalition, burning the flag. Many of editor Richard John Neuhaus's oldest friends have had second thoughts and have resigned from the board of First Things. National Review, The Weekly Standard, and The New Republic have all taken prominent notice of the episode. And now the February edition of Commentary carries its own symposium focusing in part on the First Things gauntlet.

We don't especially want to take sides in the intramural argument over the propriety of First Things, but we do have a lot of thoughts on the broader issue of judicial oligarchy, and we think the First Things controversy may be helpful in the fullness of time in focusing our concentration on the problem of judicial irresponsibility.

It occurred to us shortly after the 1994 election that all the talk of "revolution" was incomplete (never mind imprudent), if it did not include some serious reflection on how to put the genie of judicial activism back in the bottle. In one sense, the real revolution of 20th century American politics was the idea that we have a "living" Constitution, meaning that the government need not find it much of an impediment when it really wants to do something.

Hence, a real counter-revolution against big government involves more than just ending the entitlement state; it requires restoring some fixity to the Constitution. Judges wonÍt do this for us. It will require, among other things, Congress contending with the courts for ownership of the Constitution. Former Attorney General Ed Meese offers some helpful suggestions about how Congress might go about this in the latest issue of Policy Review. Robert Bork has revived Teddy RooseveltÍs idea of allowing Congress to override Supreme Court decisions. We rather like the idea of threatening court-packing again. Worked wonders for FDR.

Above all, we think judicial encroachment could emerge as the leading issue of the presidential campaign in 2000. Any takers?

-By Steven Hayward