The 225th anniversary of U.S. independence is a good time to look back so that we may assess where we are going. When it comes to that pillar of freedom, the rule of law, we have come a long way – but in the wrong direction.
As the Supreme Court has reaffirmed, America’s founders separated judicial power from legislative power “to ensure our fundamental liberties.” What government may do is more important for our freedom than what we might want government to do.
In 1781, the Supreme Court of Pennsylvania described this critical principle in a case titled Republic vs. Chapman: “But we cannot be influenced by observations of a political nature in the exposition of the law; it is our duty to seek for, and to declare, the true intention of the Legislature; the policy of that intention, it is their duty to consider.” How the game is played is more important than who wins or loses. Legislators, accountable to the people, determine what the law ought to be; judges unaccountable to the people, must ignore what the law ought to be and follow the law as it is.
By 2001, those fundamentals of freedom have changed completely. To many, how the game is played hardly matters at all – only whether they win or lose. They expect judges not to follow the law, but to deliver the goods. A great example of these new priorities is a letter to the editor in the July 3 Washington Times. An attorney with the Tobacco Control Resource Center attacked the Supreme Court for “com[ing] down squarely on the side of the predators” in the tobacco industry through two decisions limiting tobacco regulations.
In one of them last year, the Court concluded that Congress had not given the Food & Drug Administration the authority to regulate tobacco products. The Court’s only question was whether Congress had done so (“the true intention of the Legislature”), not whether they should have done so (“the policy of that intention”). As the FDA itself has repeatedly admitted, Congress did not, at least so far. It certainly could, but the point is Congress alone has the power to make that decision. If anyone, then, is “on the side of the predators” in this debate, it is Congress.
Then, last week, the Court said that a federal statute regulating cigarette advertising trumps a state statute regulating cigarette advertising. The Constitution is clear that “the laws of the United States … shall be the supreme Law of the Land … (the) Laws of any State to the Contrary notwithstanding.” The Court’s only question was whether such pre-emption had occurred here (“the true intention of the Legislature”), not whether or how cigarette advertising should be regulated or restricted (“the policy of that intention”).
Legislatures, not courts, exist to take sides. “We the people” and those we elect to represent us take sides, set priorities and make choices. That’s what legislating and self-government are all about. Courts, on the other hand, must follow the law and implement the choices made by the people. If results – the ultimate sides taken – are instead all that matter, government can act without legal authority and our fundamental liberties do not matter.
The distance we have traveled since America’s founding is also in stark relief in the trashing of the Supreme Court since its decision in Bush vs. Gore. Yet Republicans and Democrats live under the same Constitution. No matter who you might have voted for last November, the Constitution’s 14th Amendment still says that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws.” No amount of partisan fervor or lust for political power can change that. The Court’s question was whether using varying and arbitrary standards to count votes denied people the equal protection of the laws. The Court’s 7 to 2 conclusion that it does is hardly remarkable.
Similarly, both Republicans and Democrats can read the federal statute guaranteeing that Congress will conclusively honor the slate of presidential electors chosen by December 12. As even the very liberal Florida Supreme Court had to acknowledge, the Florida legislature intended to take full advantage of that statute by following election procedures that would choose electors by December 12 (“the true intention of the Legislature”). The U.S. Supreme Court had only to look at the calendar – its conclusion that the ballot counting procedures violated the Constitution was reached on December 12. The Court could not set a new deadline (“the policy of that intention”) or change those procedures. It had to follow the law.
In Bush vs. Gore, the Court emphasized “the vital limits on judicial authority.” Ensuring our fundamental liberties requires observing those limits, with judges determining and applying the “true intention of the Legislature” while leaving to the people the “policy of that intention.” The fundamentals of freedom remain the same in America’s third century. The only question is whether we have the courage to maintain them.