A Breach of the Constitution
"This Constitution, and the Laws of the United States which shall be made in pursuance thereof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding" - so says Article VI of the U.S. Constitution.
Beyond its amazing simplicity and forthrightness, our Constitution is an eternal source of provisions for all seasons. In this season of the artificial crisis, too, it would have provided clear direction to seven justices in Florida - had they bothered to look.
At the time of writing, Florida's Supreme Court is considering an appeal by the campaign of Vice President Al Gore to overturn an order entered last Friday by Judge Terry P. Lewis in Leon County Circuit Court. Judge Lewis denied a request by the Gore campaign to prevent Secretary of State Katherine Harris from carrying out her duties under Florida law.
Arguably, the appropriate response of the high court would have been to decline interfering with the process, as did the U.S. Court of Appeals for the 11th Circuit in Atlanta in the case of a Republican request. But going beyond what might have been merely questionable judgment, the seven Florida justices committed an outright breach of constitutional law.
The operative passage of the U.S. Constitution may be found in Article I, Section 9: "No...ex post facto Law shall be passed." This major plank in the ancient Rights of Englishmen, the root of American constitutional liberties, prohibits the imposition of laws after the fact, so that a person may not be found guilty of breaking laws not in existence at the time of the alleged act. In terms of the present dispute, it bars anyone from looking at the "situation on the ground" and adjust the legal process to bring about a certain outcome.
Florida law is entirely adequate to deal with the circumstances of the 2000 presidential election. The administration of elections is a matter between the legislative and executive branches of government. The judiciary has no role, unless and until an act of wrongdoing is brought to its attention.
Even amidst the carefully orchestrated hate campaign against Secretary of State Katherine Harris (is this covered under hate crimes legislation?), there was no hint that she acted unlawfully. She was taken to court for something she was about to do - perhaps.
Don't you often wish that police could arrest someone about to inflict harm upon you? The laws of the land do not permit any such thing. Already Judge Lewis's decision to hear the initial complaint could be open to question, though one might give it the benefit of the doubt like this: An anxious candidate was desperate to ask the court a question, and the court obliged by answering.
But: While the Florida Supreme Court's decision to review the order of the lower court - absent alleged criminal or civil wrong - merely creates a dangerous precedent, the arbitrary addition of enjoining Secretary Harris from carrying out her lawful function is tantamount to the creation of ex post facto law. To wit: if carrying out the law is likely to create a situation we do not like, say the justices, the law is hereby suspended.
An appearance of ethically sound intentions might have been conveyed, had the justices instructed the parties involved to freeze all actions while the matter remained under review. A weak case, but nonetheless a case might have been made for preserving the status quo all around. As it happened, the justices moved to prevent one kind of reality - final certification of the vote - from occurring, while facilitating the emergence of another kind of reality by encouraging the hand count to proceed.
The damage: If, in the next days or weeks, an act of actual wrongdoing will have to be brought before the Florida Supreme Court, only the terminally naive would expect an unbiased decision. In other words, whatever their verdict in the case now pending, their judicial authority has been shattered.
This becomes all the more painful if we recall the kind of justices who used to serve on those benches. As a refugee who spoke but a few words of English, I had the privilege of being introduced to The Honorable Glenn Terrell, 38th Justice of the Florida Supreme Court, during my very first week in America. (Fate landed me in Tallahassee in 1959.) Justice Terrell was famous for his memorable remarks. A quote from the book Terrellisms: "Through the ages, society has evolved a code of ethics which ultimately demands that those who travel roughshod over others be required to stew in their own juice."
Justice Terrell was a Democrat, just like then Florida Governor LeRoy Collins, whom I also met early in my new life. I cannot think of two men of greater integrity, or more faithfully committed to the American ideal. What they might feel if they saw those who today claim to be their successors!
Owing to our short memory, many among us tend to excuse the outrages of the Gore representatives because they point to the majority of the popular vote as a moral buttress, and the source of their frustration. Alas, at the time when they made the decision to hire telemarketers and reek havoc with the verdict of the voters, George W. Bush was ahead in the popular count by several hundred thousand votes.
Speaking on NBC-TV's "Meet the Press," William Safire suggested that the virtual tie produced by the 2000 elections in the House, the Senate, the presidency, compels Americans to turn to an institution they can trust, looking for an honest broker. That is what the Supreme Court of Florida is offering to be.
The question is how we trust a body of men and women whose first intervention constitutes an impeachable offense.