Here's another take on the Bush ascendency.
From the Brattleboro (VT) Reformer, December 15, 2000
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POWER OVER PRINCIPLE
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
not.
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
country.
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.
-30-
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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