Wednesday, January 22, 2003

Another golden-oldie from the still-no-over-it department. Over on Table Talk, the eternal question of the 2000 election came up. One poster (Fante) made the comment, "I'm examining the U.S. Constitution and I see no clause where the SCOTUS has any right under the constitution to involve itself in a presidential election." This is the point so many of the nay-sayers consistenly ignore. It was only by the most tenuous of legalistic contortions that Scalia and company were able to force themselves into a process that the framers of the Constitution explicitly did not want them to get involved in. The Constitution clearly leaves the matter of resolving disputed Presidential elections in the hands of Congress. When the court intervened (and when Bush asked them to intervene) they were explicitly going against both the spirit and the letter of the law. If they had not intervened then Congress would have had to decide which slate of Florida electors to accept. Given that the Republicans held the majority in the House and a tie in the Senate it was almost inevitable that Bush would have become President. If they had gone by this process their would have been two consequences: (1) Bush would have had a legitimate claim to the Presidency, and (2) The members of congress would have had to answer for their decision in the 2002 election. That is why the framers specifically wanted this decision to be in the hands of Congress: so that those who made the decision could be held accountable by the voters. If the voters didn't like their decision then they could have punished them by voting them out of office. But, by going to the Supremes, Bush put the decision into the hands of people who are answerable only to history. All the obfuscation about margins-of-error only obscures this central point: the Bush administration is illegitimate because it came into office via an illegitimate process. No amount of cheering about his handling of 9/11 will ever change that fact. (NOTE: I am purposely leaving out the question of voter fraud in the Florida election. I did so because Bush is illegitimate regardless of whether their was voter fraud or not.)

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