Davis Merritt: Defiance of court dangerous for democracy

10/15/2013 12:00 AM

10/14/2013 5:44 PM

Kansas legislators who are making noises about defying any school-funding order from the Kansas Supreme Court would do well to spend some time between now and January contemplating the implications of that.

Winning an election in a democracy doesn’t give you permission to destroy it, which is precisely what defiance would do.

Strong words? Imagine this entirely feasible scenario:

The Supreme Court upholds the ruling by a three-judge District Court panel that the level of school funding does not satisfy the state constitutional requirement that the Legislature make “suitable provision for finance” of public education. The district judges order the proper official in the government to provide the money, but the order is ignored.

Then what? Under the co-equal branches concept of our democracy, the court cannot order the legislative branch to do anything. But it can, on pain of contempt and imprisonment, require that all state officials, including legislators, obey the laws, the core of which is the constitution itself. That power to require constitutional obedience reaches even to Gov. Sam Brownback.

The issue defiance raises is larger and more fundamental than the political or economic ones of whether the expenditure is wise, or the court’s definition of “suitable” appropriate. Defiance of a final court order, even by another of the co-equal branches, tests whether we are a government of laws or a flailing, warring banana republic in which the rule of law has no validity.

At both national and state levels, the past few elections have seen the rise of a cohort of people who believe passionately that government has too much power, that taxes are too high, that the country has drifted from its traditional moorings of personal liberty and self-reliance. They throb to change that. Whether you agree with their complaints or not, you must admire the conviction, if not the tenor, with which they are voiced.

But the result, at both levels, of the newcomers’ anger and zeal has too often been chaos. Simply because enough people voted for them instead of someone else does not mean everyone did. Nor does winning guarantee that campaign promises can be instantly delivered upon, or that all who disagree are rendered irrelevant.

A government not of men but of laws is a deliberate process, not an act of instant and continuing revolution. No matter how fervent or urgent the desire for it, fundamental change in governing takes time.

For more than two centuries, our democracy has stayed intact through stressful times because we have understood it as a process. Part of that process has been that in our system, since Marbury v. Madison in 1803, as Chief Justice John Marshall wrote then, it has been “the province and duty of the judicial department to say what the law is.”

Even Antonin Scalia, the U.S. Supreme Court’s consummate originalist, concedes as much. As he said in his confirmation hearing, “in no instance can either of the other branches call into question the action of the Supreme Court.”

While neither the U.S. nor the Kansas constitution explicitly grants that power to courts, the very existence of a justice system requires that to be so.

Trimming government doesn’t require shutting it down. Settling a dispute about school funding doesn’t require dismantling our system of government.

Governments can be changed and constitutions amended over time, but only through due process, not main force.

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