Day 14 -- 11/21/00

The Florida Supreme Court was asked to rule on two decisions by a lower state circuit court that upheld the legal right of the Florida Secretary of State to certify the election at the time of the statutory deadline. In other words, state law in Florida states that votes have to be certified by 5 PM of the Tuesday following the election, with the exception of the overseas absentee ballots which have until midnight the following Friday. The law gives the secretary of state some discretion as to whether or not to accept any vote counts turned in after the statutory deadline.

Since the law is clear, the question brought before the courts in Florida was therefore nothing other than the Gore campaign seeking to except itself from the law. This is hardly surprising behavior from the candidate who coined the phrase "no controlling legal authority". However, it is surprising that the Florida courts have even entertained the notion of the law of their state not applying in this election.

In its decision, the Florida Supreme Court threw out the deadline established by Florida law and set a new deadline for votes to be certified, and this is where the court crossed the line. By setting an arbitrary new deadline, the court assumed the role of the Florida legislature in not simply interpreting the meaning of the law, as is the function of the court under our system, but of actually writing new law. This type of behavior by courts is commonly referred to as judicial activism, and it is a dangerous practice.

Why is judicial activism so dangerous? It's a simple concept: The very design of a constitutional democracy as we have in the United States is that the government gains its power to govern from the consent of the governed. In order for this to be the case -- to hold the government accountable to the governed, as it were -- the people who make the laws must be elected. Our Constitution was carefully written to ensure that this would be the case, which is why the Founders provided for the election of representatives and the president, and why they set up a system of checks and balances to prevent any one branch from becoming too powerful and thereby creating a dictatorship rather than a democracy. The Constitution also set up the court system to interpret the laws, to make sure that any laws passed by Congress were not in violation of the Constitution, and to make sure that the law was applied according to Congress' intent. These judges were not elected; this was intended to provide some insulation from their being swayed by shifting political winds.

Now, here is the danger of judicial activism: When the courts, either federal or state, take upon themselves to overstep the limitations (and these limitations have historically been quite broad) of their original purpose of interpreting the law and begin themselves creating new laws, you have a scenario where laws are being passed, not by elected representatives of the people, but by largely unaccountable (to the voters), unelected dictators. This kind of action on the part of jurors is a direct threat to constitutional democracy, regardless of the nobility of the cause they may be serving. The Florida Supreme Court has done just this in its decision tonight. It has gone well beyond taking a liberal interpretation of a particular law or of an enumerated right; it has created a new law that is in direct conflict with that already passed by Florida's duly elected representatives in the state's Assembly.