Alexander's Column

Constitution and the Courts

Mark Alexander · Nov. 24, 2000

It’s Day 17 of the Election 2000 hostage crisis…

Based on the Florida Supreme Court’s ruling Tuesday, The Federalist is releasing a second update in a week we would much prefer our focus on Thanksgiving not be distracted. We know many of our readers share that sentiment, but we are, indeed, on a possible collision course with a constitutional crisis. Perhaps it is fitting that in this week we set aside to give thanks to God for our great nation, too many years of constitutional devaluation and neglect are threatening to tear our nation apart. In response, The Federalist offers the following observations.

CONSTITUTION AND THE COURTS

“You seem…to consider the judges as the ultimate arbiters of all Constitutional questions: a very dangerous doctrine indeed, and one, which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. …And their power (is) the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.” –Thomas Jefferson

In the months leading up to this year’s presidential election, conservatives overlooked George Bush’s prolific and exasperating failures to articulate a conservative message, reasoning that his shortcomings notwithstanding, his election would prevent Albert Gore from appointing up to four additional leftist judicial activists to the next Supreme Court. In yet another bitter irony of this election cycle, Gore is making recourse to a cadre of leftist supporters on the Florida Supreme Court to wrest this election from George Bush – who, despite Sociocrat claims to the contrary, has already won the state of Florida by a full and complete accounting of its only statutorily required recount.

Gore’s Florida court has, in its decision to require the Secretary of State to include selective hand recounts from three overwhelmingly Democratic counties, effectively violated the U.S. Constitution’s 14th Amendment, thus trampling upon the rights of all American voters – not to mention some 1100 military voters whose absentee ballots were disqualified.

Clearly, only the most partisan Democrats thought the Florida Supremes would overturn its circuit court’s ruling that the state’s law did not provide for the inclusion of subjective hand counts. Reasoning that justice would be served, the Bush campaign did not ask for a full recount of all counties, as they would have then become a party to the violation of Florida’s statute regarding recounts. They were right on principle – but expecting justice from a panel of lawless Algoristas was far too optimistic.

It is possible, perhaps even likely now, that by 0900 Monday, 27 November, Demo canvassers will have interpreted a sufficient number of “dimpled chads” to award Albert Gore Florida’s 25 electors. Some have suggested that should Gore take office under these circumstances, his presidency would be severely disabled and would never obtain sufficient legitimacy to command any authority. This assertion is wrong! Gore’s media will wash this unpleasantry from the brains of the unsuspecting, and preen Gore’s feathers until he looks like the proudest presidential peacock since John Kennedy.

By midday Monday, we will know what options Mr. Bush may possess to fight the unlawful certification of Mr. Gore’s “victory.” At that time, The Federalist Editorial Board, will begin addressing the moral and fitting responses we believe millions of patriotic Americans should exercise in defending our liberties against the potentially encroaching tyranny of a Gore presidency.

In the interim, we emphasize that our position is rightfully tempered by the fact that justice and liberty still have numerous remedies within the existing structures of our constitutional government and we – and all Americans – are obligated to pursue those courses of action to their conclusion. That having been said, here are a few observations we believe should serve as context for the appropriate interpretation of events in the coming days and weeks.

FIRST, our founding mission statement reads in part: The Federalist is an advocate of individual, family and community governance, rights and responsibilities as espoused by our nation’s Founders, and as originally intended by our Declaration of Independence and its subordinate guidance, our Republic’s Constitution, as explicated by The Federalist Papers. Some of our readers have questioned the assertion that our Constitution is “subordinate” to the Declaration of Independence. Our Constitution is clearly subordinated by the opening clause of the Declaration:

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them…. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

To that end, Thomas Jefferson wrote, “The tree of liberty must be watered periodically with the blood of tyrants and patriots alike. … Resistance to tyrants is obedience to God.”

SECOND, we printed these quotes two weeks ago. In light of the potential constitutional crisis in the making, we thought it useful to provide them again.

“If you love wealth better than liberty, the tranquillity of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you and may posterity forget that ye were our countrymen.” –Samuel Adams ++ “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” –Benjamin Franklin ++ “Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God, I know not what course others may take, but give me liberty or give me death!” – Patrick Henry ++ “The principle for which we contend is bound to reassert its self, though it may be at another time and in another form. Whatever tended to lead the people of any of the states to feel that they could be relieved from their constitutional obligations by transferring them to the federal government, or that they might otherwise evade or resist them, could not fail to be like the tares which the enemy sowed amid the wheat. The Union of states, formed to secure harmony among the constituent states, could not, without changing its character, survive such alienation as rendered its parts hostile to the security, prosperity, and happiness of one another.” –Jefferson Davis

THIRD, our readers have noted our very persistent defense of Second Amendment rights. As noted by James Madison’s Supreme Court appointee, Justice Joseph Story, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” In light of the dawning of this potential Constitutional crisis, let there be no question that the Second Amendment is, indeed, “the palladium of the liberties of a republic.”

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