by Jay Johansen | Nov 10, 2000
In the last few decades we have seen judges grow increasingly bold about overturning decisions of legislatures or even direct votes of the people (in referenda), on the grounds that what they passed was "unconstitutional". For example, a Vermont judge recently ruled that the Constitution requires that the law must treat homosexual partners just as it would married couples. Does anyone really believe that the founding fathers of this country had that in mind when they wrote the Constitution? Judges have repeatedly banned prayer in schools. Prayer and Bible reading in schools was routine for almost two hundred years before the courts "discovered" that the Constitution forbids it. Funny that none of the people who wrote the Constitution seems to have brought any objection to the practice.
But today's "judicial activists" say that it doesn't matter what the people who wrote the Constitution meant when they put down those words. The Constitution must be viewed as a "growing" document which is "interpreted anew by each generation". In other words, a judge should have the power to read into the Constitution whatever he thinks the authors would have written if they were writing it today, or what he thinks they should have written. Sometimes they give the barest lip service to actually reading the Constitution. In one decision, the judge wrote that he wasn't sure just what clause in the Constitution a law he didn't like violated, but he struck it down anyway. And a single, unelected judge's opinion of what the Constitution should say overrides the votes of hundreds of elected legislators or millions of citizens.
As I write this, Mr Gore is carrying the idea of "judicial activism" to its logical conclusion: He is challenging the results of the 2000 presidential election in court.
The votes were counted, and Mr Gore lost. The vote in Florida was very close, so there was a recount. Fine, that's legitimate. Mr Gore still lost. Even before the recount was complete, Mr Gore was calling for another recount -- but only in four counties, surely chosen because he has reason to believe that another recount there will help him while recounts elsewhere might hurt him. With that process just barely started, he is bringing a lawsuit calling for a new vote in one county because the ballot there was "confusing" -- it listed candidates in two columns instead of one. Suppose he wins in court, a new vote is held there, and he still loses? Is anyone prepared to bet money that he will then concede? Of course not, he already has other court challenges in the works. Like, a complaint that voters in one precint were "intimidated" from voting because police stopped some people about a mile from the polls for traffic violations. (They originally charged that the traffic stops were racially motivated because the precint was predominantly black. Except that news reports said that 13 of the people stopped were white compared to 6 blacks. Or is it the position of Mr Gore's campaign that traffic laws should be suspended on election day?) It is pretty clear that Mr Gore intends to bring court case after court case until he can find some judge somewhere who will declare him the winner. I presume at that point he expects his opponent, Mr Bush, to concede. But why should he? Surely Mr Bush could bring up similar challenges. Let's face it: in every election, there are some number of people who make mistakes marking their ballots. There are some number of people who don't get to the polls by closing time, or who are told they cannot vote because they have failed to meet some technical qualification. If a voter is "intimidated" from voting by being given a speeding ticket on the way to the polls, and this invalidates the results of the election, what about a voter who doesn't get to the polls on time because he had a flat tire? If an election can be invalidated because a ballot is confusing, what if someone says that he found a candidate's campaign commercials confusing? What it someone who voted for a third-party candidate says that if he'd known that by voting for a major party candidate he could have changed the outcome of the election, he would have voted differently? Etc etc. A creative lawyer could bring up endless objections of this sort. If any time the loser can find some voter somewhere who can bring up some complaint about how the vote was conducted, a judge can overturn the results of the election ... well, that would apply to every election held.
A thought: In this particular case, the objection was that the candidates names were listed in two columns across facing pages of a voting booklet, instead of down a single column. Mr Gore and his allies said that this made the ballot confusing. The people who designed this ballot explained that they did it this way because by using two pages they could use bigger print, thus making it easier for people to read. Suppose this county had used a ballot with a single column, and thus presumably smaller print. Would Mr Gore now be charging that this ballot was invalid because it discriminated against the elderly and people with poor eyesight? Hey, he probably could have made a more persuasive argument in this hypothetical case than he does in real life. After all, one of Mr Gore's campaign themes was that he wanted to protect social security from the "risky schemes" of his opponent, and that he wanted to expand government-funded medical care programs. Surely these are themes that could be expected to appeal to the elderly and people with medical problems such as poor eyesight, and so by discriminating against such people, a small-print ballot unfairly biased the election against Mr Gore. The point, of course, is that no matter how the ballot was laid out, with a little effort someone could come up with some objection to it.
I don't know how things are going to turn out here, but frankly, it scares the willies out of me. If we concede to judges the power to decide that a ballot was confusing, where will it stop? If a judge doesn't like the people's decision in an election, he can surely always find some problem here or there to use as an excuse to overturn the election, and declare the candidate that he likes the winner. Mr Gore is pursuing "judicial activism" to its logical conclusion. Not only should judges have the power to overrule any legislative decision they don't like, but to make the process more efficient, let's just let judges decide who the legislators should be to begin with. After all, if the people voted for the wrong candidate, isn't it the judge's responsibility to correct the mistake?
In his first inaugural address, Abraham Lincoln warned, "If the policy of the Government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
In that same debate I quoted from at the beginning of this article, Mr Gore had harsh words to say about President Milosevic of Yugoslavia. Milosevic lost an election, but rather than concede defeat he declared that because there had been more than two candidates, there must now be a run-off between himself and the winner. Gore declared, "Milosevic has lost the election. His opponent, Kostunica, has won the election. .... Make no mistake about it: We should do everything we can to see that the will of the people, expressed in this extraordinary election, is done. And I hope that he'll be out of office very shortly." He called for the U.S. and other countries to bring pressure on Mr Milosevic to concede. I wonder what Mr Milosevic is now saying about Al Gore.
Another note: While Mr Gore is, of course, a Democrat, in this article I have deliberately avoided saying that "the Democrats" are doing this and that. One sign that I have found very encouraging is that many people in the media -- who surveys have routinely shown are overwhelmingly Democrat and overwhelmingly supported Mr Gore's candidacy -- are nevertheless expressing serious concern about Mr Gore challenging the outcome of the election like this. Reporter after reporter asked representatives of Mr Gore's campaign questions like, "Where will this end?" and "At what point will you concede?" They are, apparently, far-sighted enough to realize that, even though they believe that Mr Gore would be a better president, it is more important to have honest elections that to have the "right man" elected. This is not an issue of Democrats versus Republicans; it is an issue of "rule by the people" versus "rule by the courts".
© 2000 by Jay Johansen