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COUP WATCH: Conservative Judge Shreds Constitution So Cheney Can Be VP

by Paul H. Rosenberg Monday, Dec. 04, 2000 at 3:02 PM

A conservative Reagan-appointed federal judge once involved in intimidated minority voters dramatically rewrote the Constitution on Friday, in order to allow Texas’s electoral votes to cast for Dick Cheney as well as George Bush. A carnival of conservative contradictions.

COUP WATCH: Conservative Judge Shreds Constitution So Cheney Can Be VP

A conservative Reagan-appointed federal judge once involved in intimidated minority voters dramatically rewrote the Constitution on Friday, in order to allow Texas’s electoral votes to cast for Dick Cheney as well as George Bush.

Like Chief Justice Rhenquist, U.S. District Judge Sidney Fitzwater faced Senate opposition because of participation of Republican voter-intimidation campaigns. Unlike Rhenquist, however, Fitwater’s involvement was quite contemporary: in 1982 he was involved in a so-called "ballot-security campaign," in which he helped post signs warning against eleciton law violations in black and Hispanic precincts. Such campaigns obviously intimidate those who are used to being targets of police harrassment, but have no discernable rational basis as a means for preventing voter fraud. Fitwater’s nomination came just four years later, in 1986. He was confirmed in largely partisan vote, 52-42, only after a fillibuster was broken. Democrats did not simply block his consideration, as Republicans have routinely blocked women and minorities whom Clinton has appointed to the federal bench.

With that background, and foretaste of the kinds of nominees George W. Bush will likely be able to get past a spineless Democratic opposition, the decision Fitzwater reached is hardly surprising--but it’s *very* educational.

The lawsuit Fitzwater dismissed is based on the Twelfth Amendment to the Constitution. It begins, “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves.” The meaning and intent are perfectly clear.

But not to Fitzwater. He claimed he consulted dictionaries used when the Amendment was ratified to discover what the framers meant by “inhabitant,” only to discover that it didn’t mean “inhabitant.” As proof, he quoted from a 1792 law dictionary defining “inhabitant” as "not only those who dwell in an house there, but also those who occupy lands within such town or parish, although they be dwelling elsewhere.” It was a brilliant example of why the conservative principles of “original intent” and “strict construction” are laughable as defenses against judicial lawmaking.

Fitzwater felt no need to *prove* that the framers of the Twelfth Amendment consulted that law dictionary in drafting their language. He didn’t show that they considered, but rejected “shall not live in the same state” because they wanted to exempt people like Dick Cheney. He certainly didn’t use a “strict construction” of meaning of the word “inhabitant.” Nor did he explain how Cheney could occupy lands in Wyoming (in order to be considered an “inhatiant” there) while living in Texas. What he did do was cast around for a way to rewrite the constitution to suit his own narrow political needs of the moment--electing Dick Cheney Vice President. Let it never be said that a conservatives judge won’t rewrite the constitution to protect people’s rights--as long as those people are named “Dick Cheney.”


For Palm Beach Post story on the decision click on link below.

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