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--- Begin Message --- -Caveat Lector- http://jurist.law.pitt.edu/forum/forumnew23.htm
Great lawyerly discussion of how the Supreme Court acted ARBITRARILY, violated its OWN precedents, and used an authority no more legally substantial than "divine right," "because I SAY SO," in order to get one of their own ilk elected President.
Excerpt follows:
The final Supreme Court decision that handed the election to George W. Bush on December 12 begins with this statement about voting rights: âThe individual citizen has no federal constitutional right to vote.â
How could the conservatives even assert such a principle? Because itâs correct and uncontroversial. The Constitution, including the Bill of Rights, [grants] no right to vote.
Only members of the House were to be selected by popular election, and qualifications for voting were left to the states -- which excluded minorities, women and white men who didnât own substantial property. <The main reason for the Federalist Society's support for the principle of "states' rights"> Even the vast majority of white men couldnât vote.
The founding fathers accomplished a lot, but nothing like our current ideas about democracy was on their agenda. They wished to promote commerce, and they worried most about strong central government and what the masses might do if they ever gained control of it. They were concerned that popular majorities might alter property rights or the rights of creditors over debtors.
The composition of the Electoral College favored small and slaveholding states. Three-fifths of the slave population was added to the white population for purposes of allotting each stateâs seats in the House (even though the slaves themselves could not vote). The small-state bias âstill evident in the graphics on election night showing Bush winning many small states and the Electoral College while Gore won the popular voteâ stems from the Electoral College formula that adds the number of senators, always two, to the number of representatives for each state. For decades, almost all "elected" presidents under this Constitution were southern slaveholders.
On the other hand, the predominant theme of the amendments to the Constitution after the Bill of Rights has been enfranchisement of each of the originally excluded groups â African Americans, women, people of ordinary means, and finally anyone who reaches the age of 18. Each of these changes faced bitter opposition from the conservatives of each era in which they were adopted. [Equal voting rights were codified into law] by popular, political means, rather than, as is often assumed, 'beneficent judicial decisions.'
In the 1960s, the liberal Warren Court established and enforced a fundamental right to vote based primarily on equal protection principles. ... Conservatives regularly condemned the Warren Court voting rights decisions as impermissible judicial activism, and when conservative justices became the majority on the Supreme Court in the mid-1970s, voting rights were retrenched. No more strict scrutiny, and claims of infringement or restriction of voting rights almost always lost. ... Based on these developments, it should be no surprise that the successful plaintiffs in equal protection cases over the last 25 years have almost all been white men.
Bush v. Gore continues that tradition, but is inconsistent with recent conservative trends in equal protection cases. The Rehnquist Court has been SO hostile to voting rights and equal protection that to find support for its ruling in favor of George W. Bush, they had to look to the Warren Court â a major embarrassment for the conservative justices, which they compounded by admitting that the only beneficiary of their about-face on voting rights will be George W. Bush.
First, the Florida courtâs lack of more specific or uniform standards, which provided the basis for the conservative majorityâs decision, was in a very real sense created by the Supreme Court itself. [Their] earlier ruling prohibited or at least discouraged the Florida court from establishing any standards beyond exactly what the Florida statute said, which was only âclear intent of the voter.â
In any event, voting standards should be specific and uniform and each vote should receive equal weight -- principles which progressives should praise no matter who adopts them or whom they benefit in particular cases. However, if these principles were applied consistently, they would invalidate ... the electoral systems in many states and much of the federal system â including, putting aside other constitutional provisions, the Electoral College and the Senate. They might require the proportional representation systems which almost all of the democratic world has adopted over our winner-take-all plurality system. In short, if consistently applied, these principles lead to an equalization and democratization of our electoral systems -- something usually strenuously opposed by conservatives.
But in one of the most pernicious passages of modern constitutional law, the conservative majority in Bush v. Gore suggested that these "noble principles" --which they had to resurrect from the Warren Court era because their own rulings undercut voting rights-- would be applied only in THIS case and would therefore be used ONLY to hand this election to George W. Bush.
The ruling, the conservative majority said, is âlimited to the present circumstancesâ because of the âcomplexitiesâ of the issues. They did not explain what complexities led to its application in this case or might limit its further application.
[Never mind the fact that] their job, as justices, consists in significant part of telling us just which circumstances or complexities lead them to apply a principle, especially a newly established principle, in a particular case; and if it is not to have general application, to tell us why not. The Rehnquist Court here offered no such explanations, instead merely pronouncing that they had no inclination to apply the principle beyond this one particular case.
Their decision, based heavily on [reluctantly borrowed] equal protection principles, contradicts the very notion of equal protection of the law â which is, at rock bottom, that everyone should receive the benefits of established legal principles.
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