Court Fence Ruling Upholds Rule of Law


In 1832, the U.S. Supreme Court ruled that the United States government could not force the Native American Cherokee tribe out of its Georgia homes and into reservations in Oklahoma. President Andrew Jackson, appalled by the court’s interference in a jurisdiction he considered exclusively his own, vowed that he would ignore the court’s decision with the words: "[Chief Justice] John Marshall has made his decision; now let him enforce it."

The court could not. Jackson pushed ahead with his implementation of the Indian Removal Act, and the Cherokees were force-marched westward. Some 4,000 died along the way.

Jackson’s decision to ignore a Supreme Court ruling is considered a low-water mark in America’s history as a nation governed by the rule of law. But, fortunately, the Jackson precedent did not stand.

By the time the Supreme Court ordered President Richard Nixon to surrender those infamous Watergate tapes, there simply was no possibility that Nixon would respond with a Jacksonesque, "Come and get ’em. I dare you." Today, rulings of the Supreme Court are supreme, although it took many years for us to get to that point.

It has not taken Israel quite as long. Last week, Israel’s High Court of Justice ruled that the route of the security barrier would have to be altered, at significant cost to the state, to eliminate the negative impact the fence had on the lives of some 35,000 Palestinians living adjacent to it. The case was brought by a group of Palestinians, led by the village council of the town of Beit Sourik, just outside Jerusalem.

The unanimous decision stated, "The fence’s current path would separate landowners from tens of thousands of dunams [quarter acres] of land … and would generally burden the entire way of life in the petitioners’ villages."

Adding significance to the ruling is the fact that the court in no way ruled against the concept of the barrier, itself. On the contrary, it endorsed the barrier as a legitimate self-defense measure.

It even conceded that the alterations it was recommending could conceivably reduce security for some Israelis. But, the judges said, "This reduction must be endured for humanitarian considerations."

The judges wrote: "Our job was a difficult one. We are members of Israeli society. Although judges sometimes dwell in an ivory tower, this tower is located inside Jerusalem, which has suffered from unbridled terror. We are aware of the killing and destruction that the terror against the state and its citizens brings. We recognize the need to defend the state and its citizens against terrorism. We are aware that, in the short term, our ruling does not ease the struggle of the state against those who would attack it. This knowledge is difficult for us. But we are judges. When we sit on the bench, we ourselves stand trial…. We are convinced that there is no security without law. Upholding the law is a component of national security."

This decision not only does credit to Israel. It provides a beacon of guidance for all nations struggling to balance security needs and individual rights in the post-Sept. 11 era.

And so does the response of the rest of Israel’s government to the court’s decision. Prime Minister Ariel Sharon and Defense Minister Shaul Mofaz both responded that the court had spoken, and that was that. The route of the fence would be altered.

Sharon even addressed the humanitarian considerations that produced the ruling, touching on the justices concern about the olive groves that were being uprooted to make way for the fence.

Speaking to Cabinet ministers, he said, "I don’t know how many of you are farmers. It is very hard when one harms these groves. People invested hard work and sweat here. People invested all of their lives in these groves."

Then, referring to the possibility of legislation overturning the court’s decision, he said, "There will be no law to bypass the High Court of Justice. Forget about it."

So the route of the barrier will be changed. And, the likelihood is that there will be more cases brought to challenge any portion that unnecessarily interferes with the lives of Palestinians. That probably means that the barrier will move closer to the ’67 border, the Green Line.

That is probably good. The barrier that will best accomplish Israel’s security goals — while simultaneously guarding the rights of the Palestinians — is not one that meanders hither and yon through the West Bank, but one with the shortest (and most defensible) lines. A barrier that adheres fairly closely to the Green Line is also the route that defends Israel’s demography to the greatest extent.

The more it strays from the Green Line, the more Palestinians who are included against their will in the Jewish state. That is why the Palestinian leadership says that a Green Line wall is fine with them.

One Palestinian expressed the common sentiment when he said, "Let them build the wall on the Green Line. That is Israel, and any country can build anything it wants on its own territory. But keep it away from my parents’ olive trees."

But all that is commentary. The most significant aspect of the court’s ruling is the ruling itself, and the fact that it will be implemented. The precedent established, for Israel and for all democracies, is a gift to us all.


M.J. Rosenberg, director of policy analysis for the Israel Policy Forum, is a long-time Capitol Hill staffer and former editor of AIPAC’s Near East Report.

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