17 November 2000
In what probably doesn't bode well for the Bush camp, the Florida Supreme Court today issued an injunction to prevent an executive officer of that state from following the law. More specifically, the Court consolidated several cases and issued an injunction against the Secretary of State that had not been requested by any legal party. In a certain sense, this is a good ruling and not altogether unusual: on such an important series of cases, the Supreme Court, because of its statewide nature, can bestow legitimacy on a case that county or circuit judges cannot, and can also bring an end to the numerous lawsuits. Those are both good things.
However, the Court can only bestow legitimacy if it follows the law -- rather than making new law -- and the law is clear in Florida: hand recounts can only take place in the case of fraud (nobody has alleged fraud), machine malfunction (nobody has alleged malfunction), or calamities such as massive hurricanes or the like causing some precincts not to be able to function (nobody has alleged such calamities). This is clearly spelled out by the legislature via statute, and Secretary of State Harris (whatever her partisan affiliation) has followed the letter of the law in refusing to accept hand recount totals.
The Supreme Court in Florida is known as a liberal activist court. That is to say, this Court has been known to go beyond strict construction of law (remember Mr. Bush talking about strict construction and Justices Scalia and Thomas during the campaign?) to effect creative remedies for perceived injustices. It would not be at all surprising to see the Court effect just such a remedy here, and enjoin the Secretary of State to accept those hand recounts, substituting its own judgment for that of the legislature and substituting its own authority to run elections for that of the Executive branch in Florida.
To do so would be a mistake, and a mistake very dangerous to liberty. American constitutionalism is far more than the practice of codifying rules to govern political behavior and political institutions. Properly understood, American constitutionalism is a method by which mere majority will is tempered and refined, in order to protect the rights of everyone in the regime, including those in the minority (sometimes it even works in reverse -- to temper and refine intense minority will to protect the rights of the majority). The separation of powers (both at the state level and the national level) is an attempt, for example, to temper majority will in order to protect the rights of the minority; let us recall Madison in Federalist #47 instructing that "The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elected, may justly be pronounced the very definition of tyranny." The separation of powers was not just a novel experiment that Madison, et al, came up with during a long night of drunken debauchery, but rather something they saw as clearly required for the defense of liberty.
So, if the Supreme Court Monday "interprets" the law contrary to how the law is clearly written, make no mistake: the Court will not be merely interpreting law -- which was expressed quite clearly by the legislature in terms that could only be misunderstood by epistemological dullards who debate the meaning of "is" -- but will instead be substituting its judgment for that of the legislative branch (the Florida legislature), and substituting its orders for those of the executive branch (the Secretary of State). Madison would have deemed this action the very definition of tyranny. That should frighten (small l) libertarians.
On a different conceptual level, what we are witnessing is the playing out of a question: is law (and, by extension, reality) objective? The Founding Fathers thought it was and could be, and the American constitutional tradition is built upon an affirmative answer. The Florida Supreme Court is about to give us its answer to that question when it examines the Florida statute. If the answer is negative, it surely won't spell the end of the regime -- regimes don't tend to fall apart on the basis of one court decision -- but it will continue a disturbing trend in American constitutionalism (and for fun, let me remind you that the trend began with the Progressives and debates over the 14th amendment) away from the notion of objective law (or what some critics have called "constitutional formalism) to a Thrasymachian (for you Plato fans) view of law that essentially substitutes majority will (and whims) for "law."
What is bothersome to me is the fact that so few people even understand or care about the issues involved. I see a constitutional tradition crumbling and yet people have the audacity to write me with such nonsense as I'm too harsh in my assessment of Democratic behavior in Florida (no, actually, it's not my "assessment" but reality, and if anything I've not been HONEST enough about their behavior) or that both sides are wrong (Why? To paraphrase, because the republicans act arrogant. Yes, even assuming that this is true, it's certainly the moral equivalent of trying to steal an election! Whatever. What is "is?" Who am I to say? Who is John Galt?). Thankfully, I do know a few people who understand. Our dilemma: What to do? Do we continue to try to educate (despite responses such as those above)? Do we adopt the scorched earth tactics of Democrats and engage in war and, therefore, in the same sort of destruction of the regime? Do we withdraw our consent by moving? If so, to where?
Copyright (c) 2000, Kevin L. Whited