A Nation Divided

It's Christmas time. The monthlong ordeal in Florida is behind us. The presidential electors cast their votes without the "faithless elector" scenario playing out and creating a new constitutional crisis; all that remains now is the counting of the votes in Congress on Jan. 6, with the vanquished Vice President Al Gore presiding. Our fundamental institutions seem to have weathered this storm, at least for now. President-elect George W. Bush has extended an open hand across the partisan divide, and the Democrats, playing the opposition role in all branches of the national government for the first time in a half century, are at least talking as if the new president will have something of a honeymoon with Congress.

I hate to be the bearer of bad news in this joyful holiday season, but the things that divide this country are not so easily papered over. Moreover, the evenness of the divide all but ensures that it will be with us for many years to come, unless a dramatic realignment in our thinking occurs. For we are today divided not just on priorities or on tactics, but on core principles. It is the kind of disagreement that has manifest itself only a few times in our nation's history, once with disastrous consequences.

We are, of course, divided on the matter of the tax cut proposed by Bush during the campaign. We disagree on how to fix Social Security, provide for our schools and help seniors on fixed incomes with the escalating cost of prescription drugs. But these are all disagreements in tactics and priorities - minor disputes, really, in the grand scheme of things.

More fundamentally, the nation is at odds over the definition of the rule of law. The two candidates referred obliquely to this core disagreement during their debates last October. Bush stated that he would appoint judges like Antonin Scalia and Clarence Thomas who would interpret rather than make law from their positions on the bench, giving force to the text of the U.S. Constitution and of statutes validly enacted pursuant to it. Gore, on the other hand, suggested that he would appoint judges who, like John Paul Stevens and William Brennan before him, viewed the Constitution as but a starting place, a living organism into which judges continuously breathe new life to meet the exigencies of their own ever-evolving notions of fairness and equity.

It is uncanny how the events of the past two months were rooted in this fundamental disagreement. Finding in the Florida Constitution a background principle that elevated the right to vote above all other considerations, the Florida Supreme Court altered statutory deadlines, completely undermined the discretion that had by statute been placed in the Florida Secretary of State and, in reversing the decision of the trial court in the contest proceeding, ignored well-established evidentiary rules and burdens of proof and ordered a remedy against counties that were not even parties to the litigation.

Conservative Republicans excoriated the decision; liberal Democrats sang its praises. Because the decision was generally understood to favor Gore, many commentators found in that convenient alignment proof that legal realism is alive and well. But those commentators failed to appreciate the extent to which each side's position was fully consistent with its judicial philosophy and not simply with its candidate preference. Conservatives supported the position that constrained the judiciary to the actual text of statutes and the Constitution; liberals favored a broad, loose reading of text and Constitution (and, where necessary, a complete repudiation of the text) in furtherance of what was in their view a higher end.

The danger of the latter position became manifestly clear this past month. Judges do not have a monopoly on wisdom, nor on setting priorities about higher ends. Nor do they have any peculiar insight into the amorphous "will of the people." Indeed, as unelected officials with life tenure, they constitute the branch of government that is least responsive to the will of the people. When they rewrite perfectly constitutional statutes enacted by the people's chosen representatives, they substitute their will for that of the people, a dangerous thing in a democratic republic such as ours.

Thomas Jefferson was concerned about wayward courts. "You seem to consider the judges as the ultimate arbiters of all Constitutional questions," he wrote. That is "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. And their power [is] the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots."

Of course, many commentators have leveled the same accusation at the U.S. Supreme Court for overturning the Florida Supreme Court. In defense of the decision, one might be tempted to say that courts that exercise raw political, rather than appropriate judicial, power should not complain when a higher court does the same. But a more sober treatment of the U.S. Supreme Court's decision views it as a repudiation of that idea, imposing the fitting judicial restraint on the Florida Supreme Court that it had been unwilling to impose upon itself.

It is indeed unfortunate that the U.S. Supreme Court had to weigh in at all, for the Constitution ultimately assigns control over this most important of political decisions to the political branches of the government: the state legislatures, and ultimately to Congress. The political branches dodged responsibility on this matter, courtesy of the Supreme Court, but when they finally have to grapple with the full import of the textualism divide - by, for instance, recognizing the limits of their own power as well as of the judiciary's - the gentlemanly détente that has enveloped Washington, D.C., this past week will quickly evaporate into warring factions of almost equal strength.

That is where the President-elect will have the real opportunity to prove his statesmanship.

John C. Eastman teaches constitutional law at Chapman University School of Law and is the director of the Claremont Institute Center for Constitutional Jurisprudence. "First Principles" addresses legal issues in light of the principles of the American founding.