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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Friday, June 06, 2003

Eve Tushnet on, among other things, Bush v. Gore. I disagree: Bush v. Gore came to the correct result, at least insofar as it slapped down the Florida Supreme Court; it's just that the opinions are rotten.

A big problem is, everyone is so accustomed to thinking of a clear division of legislative, executive, and judicial branches, all bound up at the same level of sovereignty, that no one bothered to notice: It doesn't apply to the selection of Electors. The State legislatures' powers to set the rules in this area arises directly under the Federal Constitution. When a State legislature makes law on this topic, it sits as a Federal body, making law at the same level of authority as the United States Code. No one would think the United States Supreme Court would owe any deference to the construction a State court puts on any part of the U.S.C.; the same is true of the laws made by State legislatures operating by the authority of a direct positive grant of power in the Federal Constitution. To the extent that the Supreme Court of Florida had any judicial authority in the case at all, it was operating as an inferior court, directly controllable by the full supervisory authority of SCOTUS. But I will not grant SCOFLA even that much.

The Federal Constitution is clear on the matter (and McPherson v. Blacker is even clearer): The power to specify the means whereby Electors are chosen belongs to the States' legislatures: not their governments, the legislatures. The Constitution confers no role at all upon their executives, nor upon their judiciaries. As McPherson v. Blacker sets down, the State constitutions can have nothing to say about Federal elections. This is true of the entirety of the State constitutions; among other things, it includes Article V, Section 1 of the Florida Constitution, where it says, "The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts." The State courts, in this context, are not co-equal branches of the State governments; if they are anything at all, they are agents of the legislatures, and subordinate thereto. To the extent that the Florida legislature, through its laws, provides any role for its courts -- including its Supreme Court -- in the conduct of elections, their function is no more nor less ministerial than that of, say, the Secretary of State; if the courts object, they may fall back upon the precedent of Hayburn's Case, but that is their only recourse. So it doesn't matter that SCOFLA sat with all the trappings of a court of law, independently empowered to hear and decide the case before it. It had no such authority, and, what is really important here, no claim of deference upon SCOTUS in the interpretation of laws made directly pursuant to the Federal Constitution. On the contrary, as the Florida legislature was exercising powers granted directly by the Federal Constitution, SCOTUS had full authority to interpret those acts itself, and should have said so.

I should note, when Bush v. Gore was before SCOFLA the first time around, the Chief Justice asked Bush's lawyers if they were challenging the Court's jurisdiction, and they said, no. As a matter of law, as opposed to tactics, they ought to have said, yes.

So, anyway, what ought to have happened in Bush v. Gore, in my opinion, is, SCOTUS should have vacated all decisions made by SCOFLA upsetting the statutory scheme crafted by the Florida legislature, and they should have returned the matter to the County Canvassing Boards, and to the Florida Secretary of State, where it belonged under Florida law.

I have, thus far, left out the part of Bush v. Gore where SCOTUS put an end to the recounts. That part is indefensible. It was entirely proper for SCOTUS to say, SCOFLA's incredibly twisted decision, whereby recounts were ordered to proceed, and partial results were ordered to be certified, here (in the counties where the recount was so far favoring Gore), and recounts forbidden to proceed, and partial results ordered to be ignored, there (in the counties tending Bushward), was vacated. It should have said nothing more. The only body with proper authority to put an end to the recounts -- setting aside the Florida statute, indefensibly nullified by SCOFLA, that delegated that authority, with proper controls, to the Secretary of State -- was the Florida legislature, and, in fact, it was revving itself up to do so. SCOTUS should have stayed the hell out of it.

-- posted by Clayton 6/06/2003 04:10:00 AM

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