SACRAMENTO, CA -- The continuing ruckus over the Florida election is starting to have one salutary effect: it
has ignited public reflection and argument about the scope and limits of judicial activism in American
government. The role of the judiciary in affecting the outcome of this election may prove to be the Waterloo
for judicial activism, with the likes of Lawrence Tribe and Alan Dershowitz finally being brought to heel.

For decades conservatives have been complaining not simply about “judicial activism,” but the concomitant
acquiescence from the executive and legislative branches of government to the tacit presumption that
the judiciary is the superior branch of government. It is not. The Constitution belongs to all three branches
of government equally; both the executive branch and the legislative branch have just as much right to
construe and interpret the Constitution in matters under their own purview as the Supreme Court does in
cases brought before it.

Lincoln put the problem this way after the dreadful Dred Scott decision: If it is “the policy of the
government, upon vital questions, affecting the whole people, that [constitutionality] be irrevocably fixed
by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, then 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.” (Emphasis added.)

Quite aside from the issue of whether the Florida Supreme Court was overreaching in re-writing Florida’s
election statutes, it was surely a sign of judicial usurpation to assert, as the Court did in its opinion,
that Secretary of State Katherine Harris had no right, as an executive branch officer, to be wrong about the
law. To the contrary, she has just as much right as the judiciary to interpret the constitutional operation of
the laws under her purview, subject only to correction in particular cases reviewed by courts. But even that
does not mean the courts have the last word.

Let me give a real example: In 1861, Lincoln announced that his administration, while respecting the result in
Dred Scott, would recognize that case only as “binding … to that particular case,” and would not accept the
principle of the broader rule of law the Court was trying to create in the decision. This was important
because the Patent Office in Boston had denied a patent to a free black, citing Dred Scott that blacks were not
citizens, and the State Department had denied a passport to a free black to travel to Europe on the
same grounds. Lincoln ordered these executive branch departments to reverse both decisions, saying that he
would not apply the legal principle of Dred Scott to these cases (whose circumstances were slightly
different from Dred Scott: neither free black in these cases was an ex-slave).

Was Lincoln wrong to have acted this way? Today’s judicial imperialists who say the Constitution means
only what the Court says it means would have to say Yes. The Gore campaign may have unwittingly done us a
great favor by inflaming this issue.

- Steven Hayward