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

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.

Political Theatre

LRC Blog

LRC Podcasts