Re: supreme court decision and 'the law'

Thanks Gunder. I'd already seen this piece. Americans will simply have to
accept the fact that the people have spoken. All five of them. Here's what
the New Republic says:

Unsafe Harbor
by The Editors
The New Republic, 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
sėlentio, 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.
--
Paul
_________________________________________
Paul Frank
English translation from German, French,
Chinese, Spanish, Italian and Portuguese
Snailmail: 74500 Thollon-les-Memises, France
PaulFrank@post.harvard.edu | Fax +1 509-752-9444