Faulty Fourteenth Amendment Jurisprudence Doomed Al Gore Chances in 2000
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Interesting Associated Press story this morning that caught my eye, quoting three of the five Supreme Court justices saying they had no choice but to intervene in the Florida recount controversy. I take issue with the AP writer suggesting that the court “handed the presidency to George W. Bush.” Most likely had they not intervened in the Florida recount, Bush would still had been declared the winner under the original Florida Supreme Court directive.
Jan Crawford Greenburg in her new book, “Supreme Conflict,” quotes Kennedy as saying: “A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case.”
I fail to see the so-called “constitutional issue” Kennedy speaks of. The Constitution and its framers are very clear that the election of electors is an exclusive function of each State. No doubt, then, Kennedy must be referring to the argument put forward by Bush’s legal team that the recount violated the “equal protection” clause of the 14th amendment.
What was astonishing is that seven justices hung their hat on the “equal protection” argument. This forced Gore’s team to argue against an issue they never should have been forced to confront.
The author of the equal protection language, John Bingham, made it more than clear from beginning to end that it was the words of Article 40 of the Magna Carta and meant only those State laws of due process were to be equally administered by the State courts. Never once was there the slightest suggestion it encompassed anything more beyond the proceedings of justice.
During his famous floor speech of March 31, 1871, he reminded everyone that the words “equal protection of the laws” were the words of the Magna Carta, “We will sell to no man, we will not deny or delay to any man right or justice.”
Strictly speaking, the Fourteenth Amendment operates narrowly, and in reality, very difficult for any State to run afoul against because it is not written to oust jurisdiction of the State, and especially local governments, from defining and administrating their own laws of justice. Besides, the Fourteenths first section had only one goal according to Bingham: To insure “all citizens shall be forever equal, subject to like penalties for like crimes and no other.”
In short, Mr. Bush had not been denied the equal protection of the general law of the State before the courts of justice, nor was his life, liberty or property at risk due to denial of due process in state courts. He simply wanted the U.S. Supreme Court to reverse another court’s decision he did not approve.
Yes, Al Gore got a raw deal in 2000, and maybe he and others will begin to question the wisdom of having justices turn a document of explicit limited powers to one of unlimited interpretations that can come back and haunt in ways not intended by its letter or spirit.
I’ll end this with some words of wisdom from the Fourteenth’s author: “[T]he people’s greatest security is in just laws of their own enactment faithfully observed and enforced by their own tribunals of justice.”
One wonders if for supreme court judges such as Thomas if all the provisions of 14th amendment apply to women. The 15th amendment came a few years after the 15th amendment giving the right of women the right to vote (and presumably run for President). So if relied on the “intent” of those who “created” the 14th amendment it is not clear that the equal right argument used in Bush vs. Gore would be valid for say a woman Presidential candidate, circa 2000. Of course this would be a ridiculous argument given the status of women in our modern world. Almost as ridiculous argument used by Supreme Court majority in Bush vs. Gore.
Aw this makes sense of the language “nor deny to any person within its jurisdiction the equal protection of the laws.” Only those laws that protect life, or liberty, or property must be equal and not made unequal by a state law. So to carry this further, the shrub was not in jeopardy of losing his life, liberty or property by any unequal Florida law.
Makes sense to me now.
And why not? This ruling, along with that on Plyler v Doe (1982), the 14th Amendment case which mandated the states pay for the public education of illegal aliens only reinforces my opinion that the Court is illiterate when it comes to jurisprudence.