From: Marty Jezer (mjez@sover.net)
Date: 12/15/00

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    Here's another take on the Bush ascendency.
     From the Brattleboro (VT) Reformer, December 15, 2000
    Permission is granted to distribute this article on the internet for
    noncommercial purposes.  Please include all credits and copyright.
    by Marty Jezer
         One good result of the Supreme Court's decision to designate
    George W. Bush our next President is that we will no longer have
    to give credence to the right-wing's justification of "states
    rights" and take seriously its on-going assault on "liberal
    judicial activism."
         Justices Rehnquist, Scalia, Thomas, O'Connor and Kennedy,
    the Supreme Court's "gang of five" that dictated the country's
    choice of President, did so by a stunning act of judicial
    activism that undermined long-held concepts of states rights.
    John C. Calhoun is probably turning over in his grave.  Or maybe
         Calhoun, recall, was the South Carolina politician who, in
    the period before the Civil War, most fully enunciated the theory
    of states rights. He started his career as a nationalist,
    however, as a proponent of the "American System," a national
    bank, high tariffs, and federal spending for roads and canals.
    But when the tariff began hurting South Carolina's cotton-based
    plantation economy and Northerners began questioning the slave-
    system on which that economy was based, Calhoun made a
    philosophical flip-flop: Individual states don't have to obey
    federal laws they don't like, he asserted. 
         Federalism, shmederalism: Calhoun's doctrine was not about
    principle; it was about power. His one concern was maintaining
    the power to protect slavery -- by whatever theory necessary.
    When nationalism didn't work, he transformed himself into an
    impassioned states righter. 
         And that's what the gang of five did in this presidential
    election -- only in reverse. When states rights threatened to
    deny their man enough votes to win the presidency, they abandoned
    their principle and used the power of the federal government to
    stop Florida from legally (if messily) conducting its election. 
         The majority argument was crude and bold. First they
    arbitrarily stopped a recount that was moving steadily towards
    completion. Then they ruled against the recount because, they
    said, there wasn't enough time to complete it. 
         The recount was unconstitutional, they argued, because there
    was no single standard on which to base the count. But Florida
    election law is no different from election law in a majority of
    states, including Texas. George W. Bush, as governor of Texas,
    signed a law mandating a manual recount of close elections with
    "voter intent" as the governing standard. What's good enough for
    Texas, the gang of five insisted, is unconstitutional in Florida. 
         Yes, under Florida law, like that of Texas, there is room
    for subjective interpretation. The gang of five accepted the
    Bushite contention that machines can count votes better than
    people (even though the manufacturers of the machines have
    testified that they are no more than 99% accurate). If the
    machines aren't 100% accurate, how does the public get an
    accurate tally?  Florida law (like that of Texas) gives that task
    to local citizens, under the watchful eye of a judge and of
    observers from the political parties. Their recount may not be
    100% accurate (nothing can be 100% accurate!) but local control
    of the counting process is the way we count votes in this
         So much for local control or states rights, judicial
    prudence, and the quaint notion that ordinary human beings are
    capable of making important decisions. Whenever it suits them,
    right-wingers make a fetish of states rights and local control.
    On educational issues, or when federal regulators want to stop
    corporate polluters, or when health care reformers advocate a
    national program for universal health insurance, right-wingers
    rant about big government. And when courts rule for affirmative
    action, abortion rights, and gender equality, right-wingers
    attack them for judicial activism. What phonies!
         In this election, the hyper-activist Supreme Court majority
    trampled on states rights. In any other state, including Texas,
    votes not counted by the machines would have been routinely
    reexamined. But in Florida, the gang of five did not allow that
    to happen. 
         This was an assault on existing legal precedent. When the
    so-called "liberal judicial activists" of the Warren Court voted
    unanimously to overturn racial segregation in the schools, they
    left it to the individual states to devise plans to carry-out
    their decision, insisting only that desegregation be instituted
    "with all deliberated speed." This time, however, the five
    judicial opponents of judicial activism insisted on their right
    to interfere with the details of Florida's recount, rejecting it
    even before it could be completed. 
         In ruling against the Florida recount, Justice Scalia
    brazenly acknowledged the motives behind the decision. "The
    counting of votes that are of questionable legality does in my
    view threaten irreparable harm to petitioner, and to the country,
    by casting a cloud upon what he claims to be the legitimacy of
    his election." The petitioner in this case was George W. Bush.
    Stripped of its legalese, Scalia was saying that the recount had
    to be stopped because, if allowed to continue, Bush might lose.
    No candidate -- Bush, Gore, or any other -- can be legally harmed
    by the outcome of a fair election.  Only the citizenry can be
    harmed, when their votes are not counted or when they are
    illegally disenfranchised, as tens of thousands of voters were
    this year in Florida. 
         The Bushites and their judicial allies talked about a
    constitutional crisis, but the only crisis was that Gore might
    gain and Bush lose votes in a fair recount. Before the recount
    was stopped, C-Span televised the vote-counting process in
    Tallahassee. It was boring television but great democracy.
    Ordinary citizens, much like jurors, quietly and conscientiously
    carrying out their civic duty. 
         George W. Bush is our next President, but there is no
    evidence that he won the popular vote in Florida and with it an
    honest vote of the electoral college. The right-wing has made a
    naked grab for power (what it tried to do with Clinton) and this
    time succeeded. In so doing, it subverted the philosophic pillars
    of its own political legitimacy. 
    Marty Jezer has written biographies of Abbie Hoffman and Rachel Carson, as well
    as a history of postwar America. He lives in Brattleboro, Vermont and welcomes
    comments at mjez@sover.net.
    Copyright (c) 2000 by Marty Jezer 
    Marty Jezer * 22 Prospect Street * Brattleboro, Vermont 05301
    Website <http://www.sover.net/~mjez
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