draft
I am trying to create a summary of what I think I know about the constitutional crisis we are experiencing in America and, to a lesser degree, what we do about it. Its a tough subject and I tend to repeat myself. There were several events that in my opinion foreshadowed the disaster we are now in, and this post describes one of them.
I realize that this could sound like I am being a know - it - all here, but bear with me. You may not have grown up in the South and that there were certain elements in this affair that were very obvious to any Southerner (whatever position or side they may have taken) but may not be obvious to anyone else.
In November 2000, I protested the right wing, supreme court coup d'etat in Washington. This is one of the four times in my life (so far) that I bothered to get out on the street and protest something. It feels pretty silly when you are doing it, unlikely to have an impact, but still worth doing, I guess. It feels good to be doing something and its nice to get out of the house.
I realized just recently that the issues then were not as clear to my peers as they were to me and that there was some misunderstanding which I hope this post will clear up. The thesis will be that the real issues at stake were only nominally about W. Bush vs. Gore, but issues much more important and tragic. It affects the legitimacy of the American government itself. This is going to take a while, we are going to have to start from first principles.
For the system of justice to work in this country, we have to believe that, generally speaking, the judiciary is not deliberately partisan to one party or another. If that is not the case, it becomes more and more difficult to accept an adverse decision. Since of course the judiciary is a mixed bag, some partisan, some not, one way of implementing a more fair system is to (a) use a jury of peers, (b) restrict a judge to implementing a decision based on the letter of the law and prior decisions. That is useful up to a point.
But as we go higher up the chain into the appeals system, the justices must be permitted the ability to look at the law from a higher level and here the spirit of the law and the implications of a decision become more and more relevant. Finally, when we get to the Supreme Court, they are the final decision about what is constitutional and what is not. They can not pretend, for example, that they are unaware of the history of voting rights in this country in the post Civil War period. They can and do override Congress and the POTUS. With great power comes great responsibility. Decisions of a Supreme Court become the law of the land, one must believe that they are always acting in the nation's interest, especially with controversial issues and controversial decisions. Failure to do so reduces the legitimacy of the whole judicial system, but worse, cripples one of the three arms of the American system of representative government.
But when the Supreme Court awarded the Presidency to W. Bush in 2000, it was clear that they were acting in a partisan fashion, to put the right wing candidate in power. Whether you believe that or not, the fact is that many Americans at the time believed it, and presumably many Americans believe it today. Was there an alternative? Yes, the Supreme Court could have let the process continue, and all the votes could have been counted. But it gets worse.
The problem was that while Al Gore clearly won the popular vote, the electoral vote was going to be decided by Florida, and Florida had election irregularities. Those had to be worked out, and they were being worked out. But it gets worse.
The irregularities came from the use of different voting machines in different parts of the State of Florida, with those in poorer districts getting machines that were more prone to counting error, the so called "hanging chad" problem. But what you might not realize is that poverty in the South (and many parts of this country) is correlated to race. Poorer districts may have inferior schools, poorer districts usually have a higher percentage of black citizens.
Therefore, when the Supreme Court terminated the counting it was really saying, we do not want to count the votes of Black Americans because you see, in case this was not obvious, the "hanging chads" were in Black districts and therefore represented Black votes, at least to a large degree.
And that is what they said. They said, we are going to for partisan reasons, install a right wing President against the will of the people, and deliberately and in a racist fashion, not count the votes of Black Americans.
At that moment, the court could no longer be counted on to act in the nation's interest. To many of us, it had clearly shown that it was a tool of partisan, right wing, and racist forces in this country.
Trust me when I tell you, no one who grew up in the southern states would have missed this message. They might have needed to be reminded why some districts had their chads hanging and some did not, but once they realized this, well, the conclusion was obvious.
What astonished and disturbed me, is that the leaders I trusted to represent me were not willing to challenge this decision, and were not willing to say what was obvious. That the judiciary could no longer be trusted to do their job. That the constitution had failed.
In my opinion, when history looks at the current constitutional crisis, however it works out, this Supreme Court decision will be recognized as an important event, signaling what was to follow two decades later.
