by The Editors
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.