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Constitutional Rescue
Nov. 24, 2000

By James L. Hirsen, J.D., Ph.D.
contributor to

Throughout history, the value of an object has been associated with its enduring quality. Great works of music, literature and art are praised for their intrinsic merit long after their creators have retreated. A Beethoven sonata, a Shakespearean play and a Michelangelo painting have this timeless attribute in common.

The seemingly ordinary often contains that which is precious. Its value is sometimes neglected until it is lost. And so it is that as the greatest experiment in freedom engages in the first election of the new century, the worth and significance of its founding documents appear to be unappreciated by some of its own citizens.

A recent survey conducted by Portrait of America showed that 49% of Americans could not give their full support to the Constitution. Part of the reason for this is, most likely, ignorance, but a more sobering explanation may be that some of our compatriots simply take our foundational documents for granted. By embracing a philosophy of entitlement, many individuals now resist being beholden to anyone or anything.

Unlike any other civil document in history, the Constitution, derived from the blueprint of the Declaration of Independence, has stood the test of time. It has guided our nation through the difficult pangs of our early years. It has rescued us from the scourge of slavery. It has led us steadfastly through a succession of internal, international and intangible wars. It has lifted us from the depths of injustice and brought us to the heights of human dignity. It is something of which we should all be in awe.

Our forefathers, influenced by a Judeo-Christian worldview, sought a mechanism to protect citizens from the consolidation of power. They believed in the biblical concept of the fall of man and, consequently, they knew the importance of preventing any one branch of government from obtaining too much power.

The founders drew inspiration from the book of Isaiah where the Almighty is described as Judge, Lawgiver and King. They heeded the words of the most frequently quoted political thinker of the time, Montesquieu, who wrote, "... there is no liberty if the power of judging be not separated from the legislative and executive powers."

And now we are witnessing the wisdom of our founders' foresight. If we are to sustain the integrity of the Republic, separation of powers is an axiomatic necessity.

The text of the Constitution in Article II describes the process of choosing a president with this explicit language: "Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors."

By reading this passage in light of the doctrine of separation of powers, it is clear that the state legislature is granted an exclusive franchise to create the design necessary to choose electors.

The idea that a confrontational, activist court would trespass upon this constitutionally mandated function, without any legal authority to do so, is nothing short of contemptible. But this is only one of the grounds that the U.S. Supreme Court has been asked to review.

The U.S. Supreme Court has the discretion to act when an important question of federal law is placed before it. If preserving the constitutional integrity of presidential selection is not considered an important question, the High Court may as well close its doors.

The grounds are plentiful and the situation is urgent. The Court need not even concern itself with provocative telemarketing, dimpled chads, taped chads, inconstant rules, targeted military ballots, bad precedent or felon participation. There are several other federal questions for it to consider.

The Fourteenth Amendment reads in part, "... nor shall any State deprive any person of life, liberty or property without due process of law." The phrase "due process" in the context of the Florida election would include the right of a given candidate to contest the final numerical outcome of the election. In moving the deadline for such an outcome from November 14 to November 26, the Florida Supreme Court compromised any candidate's ability to contest the results.

The Fourteenth Amendment also includes the phrase, "... nor deny to any person within its jurisdiction the equal protection of the laws." The use of preferential manual recounts does not extend equal protection of the laws to voters outside of the four counties that were selectively chosen.

The Florida Supreme Court effectively made up new rules for the settlement of a presidential election. In so doing, it violated a governing federal statute, which bars the creation of new rules regarding the appointment of the electors of any state "by judicial or other methods."

The U.S. Supreme Court has many options within its discretion. Still, only one course of action will send the proper signal to the runaway Florida Supreme Court and restore confidence in an increasingly disillusioned citizenry. The High Court should and must overturn the Florida Supreme Court's decision, halt the manual recounts, permit certification and end this unsettling ordeal. The time for constitutional rescue is now.

Reproduced with the permission of . All rights reserved

Copyright © 2000
James L. Hirsen, J.D., Ph.D.
All Rights Reserved