BUSH v. GORE

by

D. J. Connolly

 

It has been observed that actions of the Supreme Court can best be understood if one looks to Niccolo Machiavelli for guidance.  Lessons from The Prince, Machiavelli's famous little instruction manual for unscrupulous politicians, are visible in most, if not all, controversial Court opinions.  It's not clear whether the lawyer-politicians who maneuver their way onto the high Court arrive with copies of The Prince in their pockets or whether they learn its principles by observing their judicial colleagues practice them [Note 1].

Perhaps Machiavelli's best known lesson can be found in his Chapter XVIII entitled, "Concerning The Way In Which Princes Should Keep Faith." This lesson can be summarized by the following quote [Note 2].

Therefore a wise lord cannot, nor ought he to, keep faith when such observance may be turned against him, and when the reasons that caused him to pledge it exist no longer.  If men were entirely good this precept would not hold, but because they are bad, and will not keep faith with you, you too are not bound to observe it with them.

The above introduction leads naturally to a discussion of the recent case of Bush v. Gore.
 

OTHER MEN ARE BAD

It's been fairly well documented that a Democratic majority on the Florida Supreme Court mounted a brazen attempt to steal the presidential election for Al Gore.  The majority was clearly composed of partisan Democrats.  And the court's Chief Justice, in a dissenting opinion to its attempted coup, made the following comments about the legitimacy of its decision [Note 3].

". . . the majority's decision cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution."

". . . the majority's decision to return this case to the circuit court for a count of the under-votes from either Miami-Dade County or all counties has no foundation in the law of Florida as it existed on November 7, 2000, or at any time until the issuance of this opinion."

"Directing the trial court to conduct a manual recount of the ballots violates article II, section 1, clause 2 of the United States Constitution, . . ."

". . . there is uncertainty as to whether the Florida Legislature has even given the courts of Florida any power to resolve contests or controversies in respect to presidential elections."

"The margin of error in this election is far greater than the margin of victory, no matter who wins (quoting John Allen Paulos, a mathematics professor).  Further judicial process will not change this self-evident fact and will only result in confusion and disorder."

Chief Justice Wells was also a Democrat.  Unlike his four colleagues, however, his opinion ran counter to his personal partisan interests.  So, also unlike theirs, it was probably given in good faith.

The U. S. Supreme Court, of course, has its own partisan divisions.  Some of its members were happy, or at least unconcerned, to allow the Florida court's Democratic majority to steal the election for the Democratic candidate.  However, a five-justice Republican majority, was not at all happy with that prospect.  The five partisan Republicans had two choices: they could do nothing and hope that Congress and/or the Florida Legislature stopped the theft, or they could articulate a rationale and stop it themselves.

History will probably approve of the choice they made.  No political excess could be more obscene than the theft of a presidential election by a cabal of minor league judicial hacks in a single state.  But history will probably not approve of the rationale they offered.  They relied on a bogus Constitution rather than the real one.
 

OUR LIVING CONSTITUTION

Imagine that you were a professor of law at Harvard, Yale, Stanford, or some other prestigious university.  One day you received a visit by a journalist from the New York Times, who invited your comment on a Supreme Court decision announced a few days earlier.  The decision proclaimed some amazing new principle the Court claimed to find in our 200 year-old Constitution.  The principle had no support in the Constitution's text; and it stood in obvious conflict with the most likely intent of the Constitution's framers.  But it did have a couple of things going for it.  It served the Supreme Court majority's idea of cosmic justice . . . and yours [Note 4].

What would you say to the press?

1. "I'm sorry, but the decision is fraudulent.  The Court is populated by a bunch of white collar criminals."

2. "The decision trashes the Constitution, but it serves my personal notion of justice.  So it's really quite wonderful."

3. "I don't understand how it could possibly be based on the Constitution.  But I'm sure the Supreme Court would never lie.  I must be getting old."

Be honest; you wouldn't say any of these things.  After investing your whole adult life in a career as a law professor, you'd rather commit suicide than admit the truth (pick any one of the three answers above [Note 5]).

Back before most of us were born, law professors got tired of being caught unprepared in this type of situation.  So they proposed a party line which most of their brotherhood accepted, and have followed ever since:

Never mind what the "written Constitution" says, never mind what its framers intended it to mean.  We now follow a "living Constitution" that evolves in accordance with Supreme Court opinions.  That's the only Constitution that matters.  Surely you don't want to be ruled by the ideas of folks who've been dead for two centuries.

That last line is particularly slick.  It begs the question whether you should be ruled by unelected judges at all.  The "written Constitution" assigns "All legislative Powers" to a Congress whose members we get to throw out if we don't like the rules they make.

In any case, the "living Constitution" grows apace.  Each year the Supreme Court decides somewhere around 100 cases, about half purporting to interpret the U. S. Constitution.  After two centuries of this game, the resulting published opinions fill up a room full of books.  Those books constitute the "living Constitution." It's full of contradictions, mistakes, and outright frauds.

When a Supreme Court justice approaches a new case, he doesn't worry about the text of the Constitution or the intent of its authors.  He couldn't care less about any of that.  First he decides how he personally wants the case to come out.  Then he tells his law clerks to go search the "living Constitution" and collect material with which to fabricate a story to support his preferred outcome [Note 6].

When you've got a whole room full of books to work with, you can come up with a story line to support any thing you like.  So, as time goes on, the "living Constitution" gets ever longer, more contradictory, and more fraudulent.
 

PILING FRAUD UPON FRAUD

The five justices who voted for George W. Bush wrote two separate opinions to justify their actions.  The four justices who voted for Al Gore wrote four opinions, one apiece, to justify theirs.  In the aggregate, those six opinions contained 50 citations to earlier Supreme Court cases the six authoring justices thought supported their respective arguments.  There were several duplications on the six lists.  That is, different justices cited the same earlier opinion to support opposite conclusions.  The opinion which carried the day in Bush v. Gore was based squarely on Reynolds v. Sims, a 1964 case that's as bogus as a three dollar bill.

With one possible exception, the six opinions were nothing but a bunch of noise.  An honest constitutional interpretation would simply cite the Constitution's guarantee of a Republican Form of Government (Article IV, Section 4).  That would clearly rule out the theft of a presidential election by a cabal of unelected state judges [Note 7].
 

OUR PRINCIPALITY OF JUDGES

In the 2000 general election, for the first time in history, the U. S. Supreme Court elected the United States President.  Many were shocked by this development, but they shouldn't have been.  It was quite predictable; and you can be sure it will be repeated and perhaps even become routine.  The theft of a presidential election by unelected judges was simply the latest episode in a 200 year-old judicial crime wave.

Throughout our history, our judicial employees have relentlessly expanded their power at the expense of elected bodies accountable to "We The People."  They've already stolen most of the legislative powers that the Constitution assigned to Congress.  Now they've robbed us of our right to choose our 43rd president.  God only knows what outrageous coup they'll pull off next.
 

NOTES AND CITATIONS

1. This observation is a recurring theme in The Temple of Karnak.

2. The quote is from the public domain Project Gutenberg translation of The Prince which can be found on the Internet at http://promo.net/pg/.

3. Gore v. Harris; Dec.08, 2000; No. SC00-243.  Reprints of the various opinions in Gore v. Harris and Bush v. Gore can be found in Bush v. Gore: The Court Cases and the Commentary, by E. J. Dionne Jr. & William Kristol Editors, R. R. Donnelley and Sons, 2001.

4. A fellow named Thomas Sowell wrote an excellent book entitled, The Quest For Cosmic Justice.  It was published by The Free Press in 1999.

5. A retired prosecutor and successful author named Vincent Bugliosi did refer to the current Supreme Court majority as a bunch of criminals in a recent magazine article and book.  See his "None dare Call It Treason," The Nation, Feb. 5, 2001. See also The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose our President, Thunders Mouth Press, 2001.  However, this sort of thing hardly ever occurs.  I've never heard of a currently employed law professor saying anything similar.

6. Many years ago law professors thought up a name for this approach to deciding cases.  They call it "legal realism."  See, for example, the lexis.com on line essay, "Origins of American Legal Thought: Legal Realism and the Realist Critique."  As of this writing, it could be found at, http://web.lexis.com/xchange/Content/Bridge/R2/LegalRealism/essay3.htm.  See also the article, "A Brand New Game: No Turning Back From The Dart The Court Has Thrown," by Scott Turow, Washington Post, Dec. 17, 2000.  A reprint of Turow's article can be found in Dionne and Kristol, see Note 3 above.

7. The Supreme Court refused, as a matter of policy, to enforce Article IV, Section 4 in an 1849 case, Luther v. Borden.  So it's been removed from the "living Constitution."  But it's still in the real (written) Constitution.

The one Bush v. Gore opinion that exhibited a bit of judicial integrity was the Rehnquist-Scalia-Thomas opinion which actually mentioned Article IV, Section 4 as possibly being relevant to the case at hand.

 

 

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D. J. Connolly