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
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.