by RICHARD E. BERG-ANDERSSON
"The Green Papers" Staff

I have been getting a fair number of emails over the last two days or so from persons- apparently partisans and supporters of George W. Bush's candidacy for the Presidency- who are extremely angry with the decision that was handed down by the Florida Supreme Court earlier this week; most of these are not only critical of the Court's decision itself (many do not even address the Court's decision per se) but also wonder aloud how the Court could even have the audacity- the chutzpah, if you will- to have even taken it upon itself to have made such a ruling in the first place! Some have even suggested that the Court's decision (along with- at least in some emails I have received- my suggestion that the Florida Legislature not now step in and choose the Electors themselves) smacks fairly of something that risks fomenting political unrest, if not nascent Anarchy: "Please DO NOT forget this country- the United States of America- is a Republic NOT a Democracy. Democracy is MOB RULE", one woman emailed me- to which I, admittedly rather sardonically, replied that I wondered whether she had, in fact, supported John Adams over Thomas Jefferson in this most recent election- for it sounded to me more like the utterance of a late 18th Century Federalist than that of an early 21st Century Republican!

These emailers' many claims that the Florida Supreme Court was unconstitutionally "legislating" or "overreaching" ("supplanting the Legislature" as one emailer put it, after which he specifically took issue with my previous Commentary urging that the Florida Legislature not take it upon itself to choose the State's Presidential Electors [presumably Bush electors, should the manual recounts now ongoing somehow produce a Gore lead come Sunday 26 November] on grounds that, in his view, that Legislature would- should they do so- simply be "taking back" powers and authority "they claim they already have")- statements which actually mirror, if not outright mimic, those made by spokespersons for the Bush campaign or even Governor Bush himself: but also statements that themselves fly directly in the face of American constitutional tradition and the Rule of Law that most of these emailers claim to be so ardently defending- are going to have to now be addressed in a Commentary of mine, for it will be a lot easier for me (and clearer to all those who do read my Commentaries on this site) to address these issues in this public, much more epistolic, manner rather than our going ahead and posting individual emailed comments in the "Vox Populi" section of "The Green Papers" to be followed by my attempting to fashion a response to each and every one of them individually.

Putting aside the fact that two strands of Law- one Statutory, the other "Judge-Made" (a term which implies that judges may, in fact and at times- however rarely those times should be, constitutionally "legislate"- putting that last verb in quotes to clearly indicate that I am here using that verb in the sense in which it is used [and often misused] by those who decry what they often derisively refer to as "Judicial Legislation")- have long existed side by side as they both came into the constitutional scheme the United States of America as a Federal Nation-State, as well as its constituent and Unitary States, have inherited- and modified- from English Common Law, the very methodology that the emails I have been receiving of late so strongly decry was actually recognized and discussed by those who did their level best to defend the Constitution which had only recently been framed at the 1787 Convention in Philadelphia- at its very birth- against those who would seek to deny its ratification by the State of New York. One has to then assume that the Legal Method utilized by the Court is- at least at its heart- not unconstitutional as some have claimed.

Alexander Hamilton, writing in what has come to be known as the Federalist [a veritable repository of what is currently thought to be conservative thought and doctrine: indeed, one of the very editions I have of this work in my home library is part of a set of volumes which, as a whole, is called Classics of Conservatism], addressed- in Number 78- the core of the Legal Method behind the attempted solution of the very dilemma with which the Florida Supreme Court was faced earlier this week. Conservatives should consider very carefully what Mr. Hamilton wrote more than two centuries ago, especially those ardent conservatives- supporters of the Texas Governor all- who have strenuously argued that the Court, through its decision, was attempting to impose its will or claim superiority over the Florida Legislature through its allegedly "revoking the law", "rewriting the law" or "creating new law" as a result of its opinion of 21 November:

Hamilton stated the root of the problem, as seen by most of my recent e-correspondents, rather succinctly in Federalist, No. 78: "Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution", he wrote, "has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void." This is precisely the "superiority" that many of you who have emailed me claim the Florida Supreme Court is trying to possess in your criticisms of the Court's ruling of earlier this week and its opinion supporting same. "As this doctrine is of great importance in all the American constitutions [emphasis mine]", Hamilton went on, "a brief discussion of the ground on which it rests cannot be unacceptable."

"There is no position which depends on clearer principles", Hamilton continued, "than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid [emphasis mine]."

"If it be said that the legislative body are themselves the constitutional judges of their own powers", Hamilton went on, "and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions of the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents." Such an analysis as that Hamilton provided long ago should give those who would wish the Florida Legislature to take up the issue of choosing the Electors- under authority (perhaps real, but possibly illusory if not outright imaginary) under U.S. Code Title 3, section 2 on grounds that the election results cannot be fairly determined- pregnant (no pun intended as regards a certain class of "chad") pause!

"It is far more rational to suppose", Hamilton wrote, "that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts [emphasis mine]. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body [again, emphasis mine]. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents [once more, emphasis mine].

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power", Hamilton continued. "It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

As what goes for the Judiciary under the Federal Constitution serves no less for the courts operating under a State Constitution (as, to use Hamilton's own words quoted earlier, this whole concept is "of great importance in all the American constitutions"), this is- in fact- exactly what the Florida Supreme Court- that State's court of last resort- did! The Court cited the provision in the Florida Constitution that all Power rests in the People, took note of the fact that voting in elections is a primary expression of that Power and further declared- properly- that the will of the Legislature (as primarily expressed in the State's statutes) should be subsumed to that of the People of Florida, giving the Court that very authority outlined by Hamilton above to decide just how conflicting statutes of that Legislature should be construed so as to make certain that the will of the People- as expressed by their having voted in this election- prevails over that of the Legislature in the instant case of trying to make sense out of very contradictory provisions of Florida election law, contradictions which have made it rather difficult to determine the eventual victor who will legally be represented by the Presidential Electors of the State of Florida next month.

Arguments by many who have emailed me that the Court was "unconstitutionally" or "illegally" "attempting to prevail over the Legislature" or "impose its will upon that of the Legislature" or "the People" (I am here quoting bits and pieces from the gists of various emails I have received to make my point clear) make no sense in light of all of what Alexander Hamilton, as I have heretofore quoted him, opined. Such comments by these very emailers imply that the Court was trying to be superior to the Legislature or, indeed, to the People: Hamilton's argument suggests that it cannot be superior by very definition!

"This exercise of judicial discretion, in determining between two contradictory laws", Hamilton next wrote, "is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at the one time, clashing in whole or in part with each other, and neither of them containing any repealing part or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation [emphasis mine]. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other [again, emphasis mine]."

Hamilton then went on to explain how judges should go about doing this: "The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first [once more, emphasis mine]." This is precisely what was done by the Florida Supreme Court: the statute 102.111 reads "If the county returns are not received by the Department of State by 5 p.m. of the seventh day following an election, all missing counties shall be ignored"- this statute was enacted in 1951; however, a 1989 act which is embodied in statute 102.112 reads "The county canvassing board or a majority thereof shall file the county returns for the election of a federal or state officer with the Department of State immediately after the certification of the election results. Returns must be filed by 5 p.m. on the 7th day following... the general election... If the returns are not received by the department by the time specified, such returns may be ignored." This later 1989 provision [102.112]- to use Hamilton's words in Federalist, No. 78 - "shall be preferred" to the 1951 law [102.111], for this is- again to quote Hamilton- "[t]he rule which has obtained in the courts" in his own time "for determining their relative validity".

So, here we have a court of last resort in a State attempting to reconcile two conflicting State statutes in a way which would have met with agreement by a Framer of the United States Constitution who was writing about this very method of the judiciary reconciling such a conflict in the course of defending that very Constitution against its opponents? How, then, could such a methodology as the Florida Supreme Court itself used somehow be undermining the very fabric of that Constitution as many Bush supporters, critiquing the Court's ruling in their e-mails to me, have so often claimed?? So much for "a deadline is a deadline", as the attorneys for the Bush camp claimed in oral argument before the Court.

But let us now turn to how this deadline of 5 P.M. EST back on 14 November for county vote return certifications, after which- given the Court's ruling- subsequent returns "may"- rather than "shall"- be ignored, is in conflict with the provisions of the pre-certification "protest" before county canvassing boards- as it is called in Florida election law to distinguish it from a post-certification "contest" before the trial court in the county containing the State's capital- as well as how the Court resolved this second conflict. Keep in mind that, as noted above, Hamilton- in Federalist, No. 78- argued that "where ["fair construction" determined by "reason and law"] is impracticable", the courts must [as "a matter of necessity"] "give effect to one, in exclusion of the other".

You have "protest" provisions in statute 102.166 that permit any candidate or political party the candidate represented on the ballot to ask for a manual recount in any county within 72 hours of midnight of the date of the election: any notion that Vice President Gore was "twisting the law to achieve his own political ends" (to quote one e-mail I received) by asking for such recounts in what are, indeed, predominantly Democrat counties is simply ludicrous, as is the claim (opined in several e-mails) that it is unfair to allow such recounts in such counties to the exclusion of same in more heavily Republican counties. The fact is that Governor Bush- or even the Republican Party!- had the same privilege of asking for such manual recounts as Vice President Gore had: the Texas Governor or his minions did not ask for such manual recounts- for whatever reasons (and I have already expressed my own opinions on the reasons in my previous Commentary)- while the Vice President did. I will say the same thing about this that I (apparently joined this time by most of my Bush-supporting e-correspondents) would say to those Palm Beach County voters who felt they were "cheated" out of expressing their preferences for Al Gore for President by an allegedly confusing ballot: "a sad situation, perhaps- but the law can't help you now".

It is sheer hypocrisy for a Bush supporter to, on the one hand, consider any attempt to somehow review what voters who "voted wrong" say their votes would have been as a violation of the notion that "we are a Republic, not a Democracy" the Framers, so they say, intended but then, on the other hand, turn around and suggest that somehow it was unfair for the Texas Governor not to be given the same opportunity for manual recounts in GOP-dominated counties on grounds that the Democrats somehow "twisted the law" in getting such manual recounts in counties favoring their Party. It is, in point of fact, no less "unfair" for manual recounts to have been asked for by Vice President Gore- and then subsequently proceeded upon- where he has asked for them as it is "unfair" (and I, for one, do not think it "unfair"- by the way) to not permit a so-called "re-vote" for President in Palm Beach County given the claims by potential Gore voters that they were, more or less, "tricked" into "voting wrong" by the thousands!

Moreover, if you are going to live by the letter of the law, you surely are required to die by it!! If you voted the "wrong" way in Palm Beach County, that is your fault: there is no legal nor constitutional method- despite the feelings of those who, perhaps legitimately, feel terrible about the manner in which their vote was cast and, thus, counted- to reverse the vote returns that resulted back on 7 November; likewise, if Governor Bush and the Republicans failed to ask for manual recounts in the immediate aftermath of that same election as the law in Florida provides, that is their fault (and, if it be true [though I think it quite the disingenuous excuse] that they did not ask for manual recounts because they honestly felt such recounts would be inherently inaccurate on their face, then they laid down their apparently principled gauntlet and must now stick with it; they can't very well then complain when their opponents then take advantage of a statute of which they voluntarily choose not to avail themselves. A principled position cannot bind those who do not share those principles and criticizing those for acting accordingly- which is quite a different matter from criticizing someone for not sharing such principles [a legitimate debating point]- is of little import where such departure is, in fact, legal!). One cannot have it both ways!!

As for the county canvassing boards having sole discretion to determine "voter intent" (fair or not), that- too- is what the Florida statute 102.166 devolves upon them; you can very well claim that this law is flawed on various grounds (I have no problem with that- whether I agree or not with what one might see as a particular flaw; I also have no problem whatsoever with the Bush camp having gone to the Federal courts in an attempt to stop the manual recounts on grounds that such a statute violates the Federal Constitution, whatever their merit under the Constitution of Florida. As Hamilton himself has written, such is "the province of the courts"- Federal no less than State). However, the fact remains that this statute was the law in force at the time the election was held on 7 November: claiming, as many of you have (as has Governor Bush himself) that the Florida Supreme Court has "changed the rules in the middle of the game" is disingenuous at best, ludicrous at worst; how is the Court enforcing an existing law by court order "changing the rules"?

There is, indeed, a process in statute 102.166 which is to be followed upon a request for a manual recount: a sampling of a minimum of three precincts of the county representing at least one percent of the vote cast in the election must first be done (presumably this takes some time) before the canvassing board of a county can even consider a further countywide manual recount (which also presumably takes no little time- the consideration of same by the board taking a fair amount of time as well as the recount itself); logic (or, to use Hamilton's own word "reason") dictates that 7 days after an election may not, in fact, be anywhere enough time to have completed all of this in a county of large population should, for example, a candidate wait until one minute before midnight of the 3rd day after the election (which the law permits him to do, mind you!) to file a request for a manual recount under 102.166- which would, in such a case, leave a mere 3 days, 17 hours to complete the entire process in 102.166 were the 7 day deadline rigidly adhered to as the Bush camp argued it should have been. "Fair construction" in the reconciliation of several statutes demanding many different and contradictory things is, in the instant Florida case, clearly "impracticable" and the Florida Supreme Court, thus (whether rightly or wrongly) felt compelled to- again, to use Hamilton's own words- "give effect to" 102.166 "in exclusion of" 102.112 in order to make 102.166 workable.

Likewise the Court felt it had to- on the other hand (and, again, rightly or wrongly)- impose a new deadline (Sunday 26 November) that would, in its opinion, give the counties a fair amount of time to fulfill their duties under 102.166 while still allowing enough time for the completion a potential "contest" under 102.168 before the Electors from Florida would have to be certified come Tuesday 12 December. How is all this "judicial legislation", "revoking, rewriting" the law, when the net effect is to, in fact, actually make the whole of a rather dysfunctional set of election statutes in Florida legally functional? To argue on the grounds of unconstitutional "judicial legislation" or the Court's "overreaching" is to actually place the Bush camp in the same position as they themselves decry in the Gore camp: "stealing" an election by using legal artifice to gain the best advantage under the election law statutes! As with the concept of having the Florida Legislature subvert the whole process by choosing the Electors outright (an act of dubious legality anyway), this would only serve to prove that the Republicans are, indeed, no better than the Democrats when it comes to the depths to which that Party would sink to assure victory!

I want to make it as crystal clear as I can: anyone- in support of the presidential candidacy of George W. Bush or otherwise- is perfectly free to disagree with- or criticize- the decision by the Florida Supreme Court handed down the evening of 21 November on reasonable, legal grounds (i.e., the effect of the ruling and its accompanying legal reasoning itself); you might even find it surprising that I may, in fact, agree with some- if not much- of what those of you doing so might thereupon opine. I am not criticizing such rational criticism in this Commentary (that is, I do not want to leave the impression that I am here taking issue with any- nor even necessarily most- criticism by a Bush partisan of the Court's ruling per se).

Instead, what I am criticizing in this Commentary is the pejoration of the Court's decision by those claiming that the Court was, somehow, "overreaching" (a term that implies that the Court had absolutely no authority or jurisdiction to make such a ruling- a, frankly, historically inaccurate [if not altogether silly] position to take in light of the very words of Alexander Hamilton [certainly no "liberal progressive activist type" (even, to some extent, in his own time)] in The Federalist) or "ignoring the law" (when clearly the Court cited the statutes and their rules of construction regarding said statutes- rules of construction Hamilton himself would agree with- throughout the body of its opinion). Such rhetoric when applied to the recent decision of the Florida Supreme Court is, of course, permissible (as we live in a Society dedicated to the concept of Freedom of Speech- a concept to which "The Green Papers" has itself been dedicated in its "Mission Statement") but it is also unreasonable where not downright irresponsible.

Hamilton himself addressed the very issue raised by such rhetorical excess later in Federalist, No. 78: "It can be of no weight", he wrote, "to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgement, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body. " In other words, Hamilton was arguing, the judiciary contravening the will of the legislature is, at best (or worst, depending), a "wash"; putting this another way, Hamilton did not see that the Legislature being able to do its own bidding unfettered by the Judiciary was an inherently better method of preserving a Constitution and the Rights and Liberties of the People it was intended to protect and that, in fact, the reverse (the Judiciary acting as a check on the Legislature) was the preferable option.

Again, we come- once again- back to the late Chief Justice of the United States Charles Evans Hughes (also, like Hamilton, far from a "liberal progressive" [and at a time when those two terms, perhaps, had even greater meaning than they even have today]), who said: "The Constitution is what the judges say it is". Pending the United States Supreme Court possibly overruling them, the Justices of the Florida Supreme Court- like it or not (and unanimously, mind you!)- are saying what they earnestly and sincerely feel the Constitution of the State of Florida required them to say regarding their having been asked to reconcile the various contradictory provisions of Florida election law which have cropped up as a result of Election 2000. Would Hamilton agree with what they have said? We have no way of knowing; we DO know he would not have quarreled much with their methodology in so saying what they've said. Attacking such methodology is not a fair and reasonable way of critiquing what the Court has done and merely paints the Republicans as being no better (though certainly no worse!) than the Democrats in the way they have gone about handling this whole Florida election mess.