The Open Box: Bush v Gore Revisited

"The most perverse misuse of the Equal Protection Clause I've seen in my 40 years of law."

Alan Dershowitz, Harvard Law Professor on the Bush v Gore decision

In the crashing aftermath of the landmark Bush v Gore decision in 2000, a case in which the Court effectively picked the President by a 5-4 margin, entirely along partisan lines, many were enraged. How could the five justices completely ignore their openly avowed conservative principles and, in bold, hypocritical fashion, render a decision based simply on power?

How could this be?

Many of us are familiar with the old metaphor of "Pandora's Box". Based on Greek mythology, it was a story of a woman named Pandora who possessed a box that contained all the evils of the world. Unable to restrain herself, she cracked open the forbidden box. Suddenly, out flew these demons, and try as she may, they could not be put back in the box.


                                                    Today the phrase "to open Pandora's box" means to perform an action that may seem small or innocent, but that turns out to have severely detrimental and far-reaching consequences.

You see, what happened in Bush v Gore cannot be explained unless you go back in time, back to the days when well meaning justices, thinking of equity in their day, quietly lifted the lid to the forbidden box.

In the Bush v Gore decision, interestingly the Court only relied on four prior decisions. (One other was mentioned in a perfunctory manner). These decisions were:

Gray v Sanders (1963)
Reynolds v Sims (1964)
Harper v Virginia Bd. of Elections (1966)
Moore v Ogilvie (1969)


All of these decisions were during the era of Chief Justice Earl Warren, a man determined to make things right--even if that meant departing from the Constitution. Justice indeed was achieved but did the end justify the means?

Each of these cases were voting rights cases in which people were unjustly denied proper voting rights. From giving unequal voting power to rural counties, to improper apportionment, to an inability to register, to finally an improper formula for electors. In each case, Warren's Court was clearly achieving justice by invalidating those state laws. All based on the famous dictum stated in the first case, "One Person-One Vote", a concept that has since become ingrained in the conscience of American society.There was only one problem:

Voting rights had been left to the states.

A dissenting justice, Frankfurter, quoted Representative Bingham, the author of the 14th Amendment (while going through the entire history of the voting rights):

"To be sure we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States."

The Warren court had run roughshod over the rights of states and left behind the Constitution. What did the means matter? Did not the end result of justice for the voter justify it?

In a somber warning, Justice Harlan said this in dissent in Reynolds v Sims:

"What is done today deepens my conviction that judicial entry into this realm is profoundly ill-advised and constitutionally impermissible. As I have said before, I believe that the vitality of our political system, on which in the last analysis all else depends, is weakened by reliance on the judiciary for political reform."

Let's return now to 2000. Though accused of departing from their conservative principles, there is one legal principle held by all justices of every judicial stripe.

A legal principle by which judges are obliged to respect the precedent established by prior decisions. If Courts flip flopped back and forth from session to session society would have no firm footing upon which to live lives. Courts will reluctantly depart from this principle only rarely. Conservative jurist Scalia has said he will follow precedent, even if unconstitutional, if it involves a new legal principle that has been "generally accepted by society". (p 412 Reading Law)

Who would deny that "one person one vote" has been generally accepted?

The "Pandoras" on the Court in 2000 desperately tried to put the ghosts back in the "state" box. Witness their vain attempts:

"When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers."-Stevens

"The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to a state high court's interpretations of the State's own law. This principle reflects the core of federalism, on which all agree. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." Ginsburg

Really?

 They were about 40 years too late.
The demons could not be returned to the box.

"Many liberals were brought up to believe that whatever happened to the other branches of government, the Supreme Court belonged to 'us'. It was 'ours'. Bush v Gore demonstrated the harm in empowering the courts to become actively involved in solving the nations's political problems--a harm liberals ignored as long as the solutions were ones they favored."

Dershowitz-Supreme Injustice (p 196)

#bushvgore

Broken Together

What do you think about when you look at me?

I know we are not the fairy tale you dreamed we would be

You wore the veil, you walked the aisle, you took my hand

  We dove into a mystery

How I wish we could go back to simpler times

Before all our scars and all our secrets were in the light

Now on this hallowed ground, we've drawn the battle lines

Can we make it through the night ?

It's going to take much more than promises this time

Only God can change our minds

Maybe you and I were never meant to be complete

Could we just be broken together?

If you can just bring your shattered dreams and I'll bring mine

Could healing still be spoken and save us?

The only way we'll last forever is broken together

How it must have been so lonely by my side

We were building kingdoms and chasing dreams and left love behind

I'm praying God will help our broken hearts align

I won't give up the fight

Please--Let's be broken together

Casting Crowns

Hey, Jude!

The Book of Jude is only twenty-five verses long, yet so rich !

Theological conundrums, strange angelic tales of yore, a beautiful, oft overlooked prayer, and stern warnings for apostates with expressive little poetic denunciations.

Listen to his little series of similes, directed at the apostate teachers and infused with unexpected vividness:

They are like clouds carried along by the wind, but bring no rain.











They are like late autumn trees stripped clean of leaf and fruit, pulled up by the roots and completely dead.






They are like wild waves of the sea, with their shameful deeds showing up like empty foam.













They are like wandering stars, for whom God has reserved a place forever in the deepest darkness.

He closes his short epistle with a wonderful, short prayer. 

Clear your throat, muster up your best radio voice, and say this aloud:

"Now unto him that is able to keep you from falling, and to present you faultless before the presence of his glory with exceeding joy, to the only wise God our Saviour, be glory and majesty, dominion and power, both now and forevermore. "

Amen and amen.

Lonely Stranger

I must be invisible
No one knows me.
I look in the mirror
can't they see?



I'm a lonely stranger here,
Well past my day.
And I don't know what's goin' on,
so I'm sure you'll be on your way.


Where I am, stay away;
Don't get close to me,
'cause it's sure to end in tears,
So just let me be.

Some will say that I'm no good anymore;
Maybe I agree.
Take a look then walk away.

'cause I'm just a lonely stranger here.













Apologies to Eric Clapton

Little Boy

Breath comes slowly.




Like a clock slowly ticking down, the long years of life are coming to an end.



Reclining on the comfort of his own bed, Joe's body is discomforted as he feels the long arm of death reaching out to him. His heart too is uneasy as he recalls his past.




Gazing over to his left, he sees the young boy present by his bed side. So innocent, so pure.

"Little boy, murmurs Joe weakly----could you pray for me? His voice grows choked--I have gone astray, my little boy."

"Yes, sir. I would be happy to pray for you. What do you wish I ask for?"

"I wonder, could you ask our Lord... ask Him, little boy, to take my sins away?'

Sincerely, the boy reaches and grasps the hand of the old man. Clinging tightly, Joe closes his eyes and listens.

"Our Father, I love you. Oh, I love you! I know you love him too. Make him feel your love, oh God. Make him forget his mistakes. I know you do not remember them anymore, Jesus. I know you see snow."

Feeling comforted yet not at peace, Joe continues,

"What must I do to be holy again like you ?

Speak again, my child--I know my life has had wrong.
Speak again and help a sinner be strong."

The little boy leans closer and closer still. "He only sees me," he whispers softly in Joe's ear. "he only sees innocence."

Peering through failing eyes, he stares longingly at the portrait in his hand. His ten-year old self stares back at him with all the purity and joy of a little boy.






His arm grows faint, his breathing slows, his eyes drift upward, and Joseph Louis Vito closes his eyes at peace.







Heaven opens, and an angel departs. Sweeping down, he gently scoops up a cherry-faced little boy -- so innocent, so pure -- and, grasping him tightly, soars heavenward.

"See how great a love the Father has bestowed on us, that we would be called children of God; and such we are."--I John 3:1

"Now all glory to God, who is able to keep you from falling away and will bring you with great joy into his glorious presence without a single fault." Jude 1:24

A Meteor Shining from a Clouded Sky

On this sesquicentennial of a forgotten battle from an increasingly forgotten war, I remember a forgotten soldier.

Patrick Ronayne Cleburne

Like so many who have gone before him and have followed since, this Irishman symbolically represents the manly attributes of every great warrior.

Born in the cold winds of County Cork Ireland, March 1828, he would emigrate to America as a young twenty-one year old in search of a future. Settling in Arkansas, he would come to love his adopted home state. Working hard, he obtained employment as a pharmacist and a lawyer. When the Civil War broke out in 1861, he unhesitatingly served with the people he had grown to love and in just over a year would be promoted to command of a division. He would see action from Shiloh to Chickamauga and beyond through the end of 1863. His personal success led many to recognize his valor with Robert E Lee calling him  "a meteor shining from a clouded sky".

Sitting in his winter quarters 1863-1864, Cleburne began to spend an inordinate amount of time alone in his tent.

He recognized the state of affairs with his cause and knew it was inevitable that defeat would come. They simply had too few men, too few resources and time was not their friend. So this brave man assembled a remarkable proposal he felt was absolutely necessary if victory was to be had. He proposed arming the slaves, and subsequently giving them their freedom in exchange. Listen to some of his words,

"Our soldiers can see no end to this state of affairs except in our own exhaustion; hence, instead of rising to the occasion, they are sinking into a fatal apathy, growing weary of hardships and slaughters which promise no results. In this state of things it is easy to understand why there is a growing belief that some black catastrophe is not far ahead of us, and that unless some extraordinary change is soon made in our condition we must overtake it...

Like past years, 1864 will diminish our ranks by the casualties of war, and what source of repair is there left us?...As between the loss of independence and the loss of slavery, we assume that every patriot will freely give up the latter... It is said slavery is all we are fighting for, and if we give it up we give up all.  Even if this were true, which we deny, slavery is not all our enemies are fighting for.  It is merely the pretense to establish sectional superiority and a more centralized form of government, and to deprive us of our rights and liberties.  We have now briefly proposed a plan which we believe will save our country.  It may be imperfect, but in all human probability it would give us our independence.  No objection ought to outweigh it which is not weightier than independence."

Though a dozen officers signed on in support, his proposal was tabled. Too many in the South could not bear the thought of such dramatic change. The political consequences fell on him as he would never be promoted above division commander though he was often the clear choice for it.

For Cleburne, the rejection did not dissuade him from the call of duty. As he increasingly saw his prediction coming true the more determined he became.

In the fall of 1864, the Army of the Tennessee approached Franklin, Tennessee. In a desperate effort, its commander John Bell Hood made what would be a fatal decision for his army and so many of its soldiers. Assembling his commanders on November 30th, angry over what he believed to be cowardice on the part of Cleburne the day before (falsely so), he ordered a massive assault on the heavily fortified Union position. He placed Cleburne directly in the center of what would be a 20,000 man charge--a charge nearly twice the size of Pickett's charge instructing him "go over the main works at all hazards." Not a man to take an accusation of cowardice lightly, Cleburne's last words to Hood before leaving the house were"I will take the enemy's works or fall in the attempt."

Dismounting his horse to share the sober news to his brigade commanders Cleburne recognized the reality that he was going to die that day. Death for him as for all brave soldiers was of less concern than failing in your duty. He told a brigade commander, "If we are to die, Govan, let's die like men."

As the enormous assault was in full swing, Cleburne had his horse shot from under him and asked for another. An officer immediately gave up his steed which itself was promptly shot. Starting out on foot, waving his cap with sword drawn, Cleburne attacked. Fifty yards from the Union lines a single bullet pierced the noble heart of this brave man and he fell with his face to the enemy.

Later in eulogy it was said,

"Where his division defended, no odds broke its line; where it attacked, no numbers resisted its onslaught, save only once; and there is the grave of Cleburne"

A century later when General Douglas McArthur was giving his famous speech on "Duty, honor, and country" he described the good soldier,

"The soldier, above all other men, is required to practice the greatest act of religious training -- sacrifice. In battle and in the face of danger and death, he discloses those divine attributes which his Maker gave when he created man in his own image. However horrible the incidents of war may be, the soldier who is called upon to offer and to give his life for his country is the noblest development of mankind."

#patrickcleburne #battleoffranklin

Earn it

Approximately every three minutes a memory of World War II – its sights and sounds, its terrors and triumphs – disappears. Yielding to the unalterable process of aging, the veterans who fought and won the great conflict are now mostly in their 90s. They are dying quickly – at the rate of approximately 555 a day, according to US Veterans Administration figures.

They earned it--it's our turn.

"But freedom is never more than one generation away from extinction. We didn't pass it on to our children in the bloodstream. The only way they can inherit the freedom we have known is if we fight for it, protect it, defend it and then hand it to them with the well thought lessons of how they in their lifetime must do the same. And if you and I don't do this, then you and I may well spend our sunset years telling our children and our children's children what it once was like in America when men were free"-Ronald Reagan