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Unsafe Harbor

by The Editors

Post date 12.14.00 | Issue date 12.25.00    

Healing? Sure. American culture requires it, and so do the careers of American politicians. But healing is also a part of the strategy of the Republican larcenists, in and out of robes, who arranged to suppress the truth about the vote in Florida and thereby to make off with the election of 2000. Having satisfied their lower impulses, they are counting on us to act on our higher impulses, and to come together. Well, we cannot come together, at least not yet, because we have just been driven apart. The rupture is real, and it demands to be analyzed. After what happened at the Supreme Court on December 12, anger is a mark of analysis.

The casuistry of William Rehnquist, Antonin Scalia, Clarence Thomas, Sandra Day O'Connor, and Anthony Kennedy--this was a 5-4 decision, not a 7-2 decision, as some Republican spinners would have us believe, on the utterly false assumption that every justice who acknowledged the chaos in the standards of counting concurred in shutting the counting down--will be exposed by scholars of the law. We will leave it to them to demonstrate, for example, that the "safe harbor" provision in Florida law has no constitutional stature, that an extension of the deadline for a fair and methodologically consistent tally of all the votes of Florida would not have violated Article 2 of the Constitution. We insist instead that the election of the president of the United States by the Supreme Court of the United States needs to be regarded not only legally, but also morally and historically. And morally and historically speaking, we have witnessed an outrage.

The Orwellian character of the majority opinion in Bush v. Gore is plain from even a cursory reading. The justices cite precedents affirming "the one man, one vote basis of our representative government," and then they proceed to nullify the votes of thousands of men and women. They castigate the contest provision of the Florida Supreme Court for failing to "sustain the confidence that all citizens must have in the outcome of elections," and then they proceed to shatter the confidence that all citizens must have in the outcome of elections. They protest that "none are more conscious of the vital limits on judicial authority than are the members of this Court," and then they proceed to extend judicial authority into the very heart of American politics--an extension so vast and so unprecedented that it can only be described as un-American.

Are the justices, then, hypocrites? Alas, they are not. They are--sub silentio, as they might say--Republicans. This ruling was designed to bring about a political outcome, and it is an insult to the intelligence of the American people to suggest otherwise. There was a basis for the suspicion about the politicization of the Supreme Court already on December 9, in the startling decision to grant the stay that George W. Bush desperately needed. That decision was 5-4; and those who clung to the fine conviction that politics stopped at this chamber's door were hoping that the partisan split would not reproduce itself in Bush v. Gore, when the integrity of the American system of government hung in the balance. But it did. Not even O'Connor and Kennedy, the most illustrious open minds in America, opened their minds.

Dissolve to Philadelphia on July 25, 1787. On that Wednesday morning the Constitutional Convention took up the question of how the executive in the American republic was to be elected. In his notes on the debates, James Madison recorded his own opinion of the matter. "The election must be made either by some existing authority under the National or State constitutions--or by some special authority derived from the people--or by the people themselves. The two existing authorities under the National Constitution would be the Legislative & Judiciary. The latter he presumed was out of the question." It now appears that he should have made no such presumption. And so it will be that George W. Bush's presidency will forever be haunted by James Madison's ghost. Constitutionally speaking, this presidency is ill-gotten. It is the prize of a judicial putsch.

Needless to say, James Madison will not keep George W. Bush awake at night. But there is something else that should trouble the vacant and victorious man's sleep. There are all those sealed metal boxes in the Sunshine State, the ones upon which the Supreme Court does not want the sun to shine, the ones that hold the dimpled and undimpled instruments of the people's will. It is very likely that those ballot boxes contain an arithmetical secret that could cast doubt upon the legitimacy of his electoral success. After all, everything that Bush and his minders have said and done since November 7 has been premised on a terror of the contents of those boxes, a frantic fear of what they might reveal, which is that George W. Bush won the election but Al Gore won the vote. And the Supreme Court of the United States has made itself a party to this dread of the democratic truth.

We disrespectfully dissent.

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