December
11, 2000
We Are
Not Meant To Be Governed Solely By Courts
By John
McIntyre
The "rule
of law" is a phrase we have heard often, from both sides,
over the past month. And indeed the "rule of law" has
been critical in America's success in becoming the greatest democracy
the world has ever seen. The "rule of law" is the lifeblood
of any functioning democratic system. But the genius of the "rule
of law" in our Constitutional democracy is founded on the
checks and balances established by the founding fathers in our
tripartite system of government.
Contrary
to the conventional wisdom of the political left, the "rule
of law" is not simply relegated to the court room. Marbury
v. Madison in 1803 did establish the doctrine of judicial
review and assured the court's coequal position
with the executive and legislative branches of government. However,
the idea that the courts are automatically the final arbiter of
how we are governed is plainly wrong.
The Florida
Supreme Court is a perfect example of why the founding fathers
set up a constitutional framework that allowed for the judicial
branch to be confronted when they usurp power that is the prerogative
of another branch of government. The legislative and executive
branches in Florida have every legal right to fight
what they feel to be illegal actions by the state judiciary. For
the New York Times, Alan Dershowitz and like-minded liberals to
scream bloody murder about the "rule of law" when the
Florida Legislature chooses to assert its 100% LEGAL RIGHT
is absolutely pathetic. Florida Speaker Tom Feeney and Senate
President McKay have been adhering to the "rule of law,"
but because the liberals don't like the result that such a legal
option may produce, they try and deligitimize the process as an
assault on the "rule of law." This is absolutely untrue
- and they know it.
The GOP should
be grateful the U.S. Supreme Court has most likely decided to
put an end to the Florida Supreme Court's clearly unconstitutional
actions. But Republicans and the Bush campaign should not make
the mistake and imply that the Judiciary is the final and only
arbiter of how our Constitutional system works. From a public
relations standpoint, it is obviously preferable that the Judicial
system has, in the end, decided in the Governor's favor. But it
would be disingenuous for James Baker to imply Bush was willing
to abide by what ever the courts decreed when, to Governor Bush's
credit, his campaign made it clear from very early on in this
process that they would pursue all legal options through all branches
of Government - if such action proves to be necessary.
What these
last few weeks have made abundantly clear is that the "rule
of law" as administered by our court system, just like all
institutions of government, is far from perfect. While it may
have always been known by lawyers and the people who deal with
the judicial system in this country, what has become obvious to
the public at large, is the importance of what judge and what
court hears your case. In every single important court
case the Gore campaign has initiated in this election fiasco,
they have only been able to find success in front of the Florida
Supreme Court.
The latest
4-3 ruling demonstrated the ridiculous lengths a majority on the
Florida Supreme Court were willing to go to achieve their desired
result, irrespective of what the law may allow. Republicans have
every right to criticize and attempt to overturn by Constitutionally
legal means the actions of that court. The idea, preferred by
the Democrats and media elite, that the courts are somehow beyond
reproach, and we must accept their rulings as if they were delivered
from the mouth of God, deliberately chooses to ignore the legal
rights that we the people have to confront judicial tyranny. Our
Constitutional system works precisely because we have checks and
balances that constantly keep one branch of government from ruling
supreme.
Had Republican
Governors instead of Democrats been filling vacancies on the Florida
Supreme Court, this entire election fiasco would have ended weeks
ago. Had Bill Clinton perhaps just appointed one more Justice
to the US Supreme Court, the nation's high court would have probably
let the Florida Supreme Court go about its business of electing
Al Gore. The
importance of this presidential election was always who would
be filling vacancies in the Federal Judiciary. One of the reasons
the Democrats are fighting so hard to insert Gore in the Presidency
is they know they are very close to losing the U.S. Supreme Court
for a generation.
These last
few weeks have demonstrated how important it is who sits on our
nation's highest courts. The Florida Supreme Court perfectly illustrates
the damage a court controlled by liberal judicial activists can
wreak on society. Even though the U.S. Supreme Court stepped in
to restore the proper constitutional balance in this particular
court case, the judicial result did not have to end this way.
Republicans should not take this likely victory and hypocritically
talk about the sanctity and finality of the courts only days after
bashing the Florida Supreme Court.
The struggle
in Florida has made clear to the public that our court system
wields tremendous power in America and that the outcome of critical
cases such as the presidency can be determined by the ideology
of the bench. But whether the court is deciding for conservatives
or liberals, one must never forget we the people are not meant
to be ruled solely by the courts. The "rule of law"
includes respecting our tripartite system of government and its
separation of powers. This means respecting all branches of government
equally, not just the judicial branch - even if you don't always
like the results.
John McIntyre writes for RealClearPolitics
Mr.
McIntyre can be heard live every Monday morning on the
Hugh Hewitt Show 9:30 EST
