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COUP WATCH: "In Order To Preserve Democracy, It Was Necessary To Destroy It"

by Paul H. Rosenberg Monday, Dec. 11, 2000 at 3:42 PM

Usually, when activist conservative judges take a meat-cleaver to the law, they destroy the Constitution & a mere few decades of settled law. This time it's *centuries* of Anglo-American common law. The purpose of a judicial stay is to *prevent* irreparable harm. But they've issued one to *CAUSE* irreparable harm.

error COUP WATCH: "In Order To Preserve The Facade of Democracy, It Was Necessary To Destroy It"

By Paul Rosenberg

America is not a democracy. That much was made "perfectly clear" by the Supreme Court when it first vacated the Florida Supreme Court's ruling that allowed hand recounts to go forward. There is no right to vote in the US Constitution, and the Supreme Court vacated the Florida decision on the grounds that it might depend on the right to vote in the Florida Constitution. Thus, the conservative Court majority officially ruled that democracy is unconstitutional.

The Supreme Court made a similar point in the Dred Scott decision, when it officially ruled that African-Americans were not citizens: there are no rights in America except those recognized by the Supreme Court. This is a nation of MEN, not laws. Forget high school civics, forget the Declaration of Independence, forget the Constitution, this is raw POWER we're talking about, and whatever five schoolyard bullies say, goes.

But of course, the American people won't stand for that. Jack Nicholson had it right: We can't stand the truth. We need our dictatorship cloaked in the cast of rags of democracy. We need a g-string at the very least. And that's precisely what Antonin Scalia offers us.

Usually, when activist conservative judges take a meat-cleaver to the law, they go no further than destroying the American Constitution, based on a mere few decades of settled law. In Employment Division vs. Smith, in 1990, for example, Scalia hacked away the Free Exercise clause of the First Amendment freedom of religion, overturning 47 years of rulings based on Board of Education v. Barnette (which recognized Jehovah's Witnesses's' right to not salute the flag). Scalia pegged his ruling to Minersville School District v. Gobitis, an earlier decision that denied that right, which Barnett overturned in horror once the Court saw the outpouring of religious violence against Jehovah's Witnesses that followed from it. In a forthcoming book on the case, To An Unknown God: Religious Freedom on Trial, Oregon law professor Garret Epps compares Scalia's use of Gobitis as precedent to basing a ruling on Dred Scott or Plessy v. Ferguson.

But that's nothing compared to what's just be done.

In this case, the black-robed schoolyard bullies of the Court have overturned so many centuries of Anglo-American common law and so many precedents it's impossible to keep track. The purpose of a judicial stay is to prevent irreparable harm. The classic example is a stay of execution in order to hear new evidence or arguments that may exonerate a prisoner condemned to death. The present case stands all those centuries of common law on their heads--it issues a stay in order to CAUSE irreparable harm.

Justice Stevens made precisely this point in his written dissent (joined by SOUTER, GINSBURG, and BREYER):

    "Counting every legally cast vote cannot constitute irreparable harm. On the other hand, there is a danger that a stay may cause irreparable harm to the respondents and, more importantly, the public at large because of the risk that 'the entry of the stay would be tantamount to a decision on the merits in favor of the applicants'.... Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."
There was no explanation offered for the stay (explanations aren't customary in such cases), but Scalia wrote a concurring opinion responding to Stevens, in which he claimed:
    "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."
In plan words, it is the "public acceptance" of Bush's election--the acceptance of the FACADE of democracy--which would be "irreparably harmed," according to Scalia. No Roman Emperor could have said it better.

Of course, Stevens's point still stands--preventing the recount ALREADY casts an even bigger cloud over Bush's supposed election--a cloud so big that it now completely envelopes the Supreme Court as well. By Scalia's own words and deeds, the cloud that had previously hung over the election has been vastly expanded in scope--the exact opposite of what he pretends to want.

Lest there be any doubt that Scalia & co. care nothing for the rule of law, he added the following:

    "Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters' intentdimpled chads, hanging chads, etc. vary from county to county, as the Florida Supreme Court opinion, as interpreted by the Circuit Court, permits. If petitioner is correct that counting in this fashion is unlawful, permitting the count to proceed on that erroneous basis will prevent an accurate recount."
While other aspects of the Florida Supreme Court ruling might arguably be challenged as changing Florida law--the only reason the Supreme Court might overturn it, according to its own ruling sending the case back--Florida law itself leaves the standard of determination to the counties, and any change in this--however just, sensible and wise it might be--would certainly be grounds for Bush to appeal the decision. Leaving the law as it is--which is what Florida's Supreme Court did--would clearly not be grounds for appeal. If the Supreme Court bothered with being consistent. But, then, dictators usually don't bother. So why should we, right?

The conservative pseudo-principle of "states' rights" says that Federal courts cannot interfere with state law--except to benefit a conservative in trouble. The ONLY thing that permits Scalia to question the recount procedure is this conservative protection exception. An honest proponent of states' rights would simply note that the Supreme Court lacked jurisdiction, since the Florida Supreme Court had simply followed the law passed by the Florida legislature in this regard.

Bush is arguing that the Florida Legislature should have the last word in everything--except when it lets counties decide the standards for determining voter intent. Then, AND ONLY THEN, the Supreme Court should over-rule the Florida Legislature.

And they accuse GORE of trying to make the rules up as he goes along? They accuse the FLORIDA Supreme Court of trying to make the rules up as they go along? This isn't the pot calling the kettle black. This is the black hole calling the universe closed.

There is, however, one way to look at this action which does not involve tearing up eight or ten centuries of Anglo-American common law. One could argue that the only "irreparable harm" that Scalia & his gang are really worried about is the irreparable harm that THEY would suffer if they let Gore register a majority of votes before overturning his election. Scalia is suffering under the delusion--common among banana republicans across the decades and around the world--that if he & his friends don't steal the election in plain sight, then no one will be the wiser. To them, democracy is nothing more than a game of "peek-a-boo!" If they just use a g-string of democracy to hide their private power, then everyone will just roll over & let them do what they will. This is how the schoolyard bullies on the Supreme Court think.

Forget December 7. From now on, December 9 will be remembered as the day that shall live in infamy for all time. We're no longer secretly pretending to be a democracy. From here on, it's official. The Roman emperors would be so proud! Bring on the lions! Who's first on the menu?

Link below to Supreme Court's stay order, concurrence and dissent.
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Listed below are the 10 latest comments of 11 posted about this article.
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Self Governing Fred Hilgart Monday, Dec. 11, 2000 at 4:06 PM
Trying to make sense Matt Monday, Dec. 11, 2000 at 5:27 PM
Trying to make sense Matt Monday, Dec. 11, 2000 at 5:28 PM
Hello!!! Is anybody in there? Chad Monday, Dec. 11, 2000 at 10:52 PM
I'm here Matt Monday, Dec. 11, 2000 at 11:23 PM
Cheap Shot Thaxter Monday, Dec. 11, 2000 at 11:26 PM
RE: I'm here DimpleChad Tuesday, Dec. 12, 2000 at 1:08 PM
re-response Matt Tuesday, Dec. 12, 2000 at 5:11 PM
Cheap Shot Part Deux Matt Tuesday, Dec. 12, 2000 at 5:44 PM
RE: I'm here II DimpledChad Tuesday, Dec. 12, 2000 at 11:12 PM
what would you we do now if gore was in offic beckett Saturday, Sep. 29, 2001 at 12:31 AM
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