What This Country Needs Is A Good, Old-Fashioned Constitutional Crisis

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Lawyer
Delay: He has never lost a case!

My
wife thinks that Al Gore is using his teams of lawyers to gum
up the results of the election in Florida, which will result,
Gore hopes, in the annulment of Florida’s 25 Electoral College
votes. Gore will win the election if Florida’s electoral votes
do not get counted. So, his goal is not to get any more ballots
counted. His goal is to call into question the legality of Florida’s
election results, leading to their legal annulment. This argument
makes sense to me.

Gore
speaks of democracy. He speaks of the rule of law. What he is
really after is the overturning of this Presidential election
by means of tag-team lawyers. He is pitting his lawyers against
a majority of Florida’s voters, counted legally and certified
by lawful procedure. He is simultaneously pitting the rhetoric
of democracy against the U.S. Constitution. "I won the popular
vote." That is to say, "The Constitution be damned."

This
is why the Florida legislature is preparing to meet next week,
just in the case of court-imposed gridlock. The legislature is
making sure that the state’s 25 electoral votes are not lost to
courtroom procedures and delay. Constitutionally, the legislature
is sovereign over the naming of electors; the courts are not.

To
have the Florida legislature make the final decision would be
a great thing for the United States. First, this would re-validate
the authority of the U.S. Constitution. The state legislatures
do lawfully control who gets elected as electors. There is no
question about this. It would be nice to see the honoring of this
Constitutional provision make the deciding difference in the outcome
of a Presidential election.

Second,
by publicly re-validating Constitutional supremacy, this decision
by the Florida legislature might lead to a Constitutional crisis.
This crisis would pit the Constitution against the American political
tradition. There are two reasons why.

First,
the Left has been at war with the Constitution throughout this
century. In the name of social Darwinism and central planning,
the Left has called for a living, organic Constitution. This means
amendment by legislation and judicial activism. Second, the Right
has been at war with the Constitution since 1803: the Marbury
v. Madison decision, in which the Supreme Court successfully
interposed a new doctrine, unforeseen by most of the Constitution’s
Framers: judicial review. The Court arrogated to itself the right
to overturn Federal laws. With this doctrine and a majority on
the Court, the Federalist Party’s supreme politician, Chief Justice
John Marshall, hamstrung the Jeffersonians for over three decades.

On
December 5, the New York Time’s Anthony Lewis appeared
on PBS’s News Hour. For those who are not familiar with
Mr. Lewis, it can accurately be said that he is the jerk in “knee-jerk
liberal.” He warned that the Florida legislature could create
major problems for the legitimacy of any Bush Administration.
He admitted freely that the Constitution grants this authority
to every legislature, but he insisted that a century of democratic
voting had de-legitimized this Constitutional practice.

Predictably,
he did not mention the possibility that Gore’s tactic is to get
the state’s 25 votes annulled. He did not mention that this legalistic
tactic would disenfranchise the Florida voters who voted for Bush
and all the other voters who voted for Bush nationally. He did
not mention that by annulling the state’s 25 votes and electing
Gore, this tactic would de-legitimize any Gore administration.
No, he was just all so terribly concerned about maintaining the
legitimacy of a Bush administration and also the legitimacy of
the Florida legislature. He shed copious crocodile tears for the
dilemma of the alligator state.

Legitimacy:
Democratic, Constitutional, or Political

I
hope and pray that the courts gum up the ballot-counting process
so badly that the Florida legislature will be forced to act Constitutionally
in order to secure Florida’s 25 votes. What this country needs
is a nice, fat dose of Constitution.

Would
this decision undermine the legitimacy of the Bush administration?
One can only hope.

Would
it make the court system appear utterly impotent to make meaningful
decisions fast enough to make a difference in crises? Again, one
can only hope.

Would
it lead to a call to amend the Constitution and eliminate the
Electoral College? Here, prayer is called for. What a Godsend
that would be! First, the enormous amount of money, time, and
political effort to get the Constitution amended would be a drain
on the Left for years. Second, the odds are against the success
of any such Constitutional change. Third, Constitutionalists would
get their best opportunity since 1861 to debate the issues of
limited national government, checks and balances, and the Framers’
undying hostility to "one man-one vote" democracy.

The
hullabaloo in Florida would have caused no major problems if the
provisions of the Constitution had been upheld and defended for
the last 135 years. The legislature would have acted, and that
would have been the end of it. Anthony Lewis and his ideological
peers could busy themselves with other matters.

We
do face a major political problem today, and have for almost two
centuries. Americans think of the courts as above the political
fray, and therefore as the source of legitimacy. They see court-interpreted
law as superior to legislature-enacted law. They see the court
system as John Marshall wanted them to see it: as finally sovereign.

Americans
still trust the courts, even though Americans do not trust lawyers.
Somehow, black robes legitimize lawyers. Put a black robe on a
lawyer — worse: a lawyer-politician — and he miraculously
turns into the Voice of the Law, which is the Voice of the People.
He possesses the Voice of Authority. He is the Voice of Virtue.

Almost
four decades ago, I heard a speech by the conservative political
philosopher, Wilmoore Kendall. He said in that speech that Madison
had wanted a provision in the Constitution that a three-quarters
vote by both houses of Congress, plus the President’s signature,
would overturn a ruling by the Supreme Court. I have never found
evidence that Madison wanted this, or even worried about it, but
it sure sounds to me like a reasonable provision. It would keep
final civil sovereignty from being lodged in any single earthly
assembly — a provision against tyranny if there ever was
one.

We
live in a unique political order that no other nation tolerates
or would be so naive as to believe. Final political authority
to enact laws by stealth is granted to five politically appointed
lawyers in a nine-lawyer club that pretends to be above politics.
In no other nation is such political sovereignty granted by the
public or by a legislature to a closed elite of black-robed social
experimenters.

A
few years of political gridlock and nasty partisan recriminations
about the "Florida robbery" would go a long way to encourage
a re-examination of the Constitution and what it was intended
to achieve, as well as what it failed to achieve because the Framers
did not see John Marshall coming.

Let’s
hear it for the partisan Florida legislature. “Come on, people!
Don’t be wimps! Give the Bush dynasty a boost! The hopes of the
nation — not to mention the hopes of Jupiter
Island
— are resting on you!”

December
7, 2000

Gary North is the author of a ten-volume series, An Economic
Commentary on the Bible. The latest volume is Sacrifice and
Dominion: An Economic Commentary on Acts. The series can be downloaded
free of charge at www.freebooks.com.

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