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Lawyer Alan Dershowitz hasn't got a clue.
He's written a new book and is making the television rounds promoting his latest tome. This time, he's "analyzed" the Supreme Court ruling that decided last year's Florida vote-count fiasco which marked the end of the 2000 presidential campaign. (See my, "Marching Morons," published in Laissez Faire City Times.)
Dershowitz contends that the Supremes erred in interfering with the Florida Supreme Court when the latter overruled a lower state court stopping the latest recounts. He argues that the conservatives on the court so feared that Bush would lose and Gore would win if all vote recounts were allowed to be completed that they panicked and called a premature halt to the whole process.
I don't know enough of the legal particulars to decide if the Supreme Court "justices" overstepped their bounds or not. States rights issues certainly suggest they did. On the other hand, the Florida Supreme Court clearly ignored Florida law and based its ruling on purely political considerations. It is hard to get too worked up when one rogue court is reined in by another.
The "rule of law" should preclude such shenanigans in this country. Unfortunately, that principle has deteriorated into an anemic shadow of its former self. Bit by bit, it is a dying idea that many in this country would consider "quaint" and "outdated." We long ago ceased to be a nation that holds such a notion in reverence. Nowadays, it is honored more in its breach than in its practice.
(Witness eight years of the Clintonistas and their outrages: Waco, FBI scandals, Elian Gonzalez, tobacco lawsuits, gun manufacturer lawsuits, IRS prosecution of "enemies," Whitewater "investigations," Travelgate, perjury under oath, intimidation and maybe even murder. On top of those endless outrages -- which for most folks produce nothing more stimulating than yawns -- are countless examples of special interest legislation, arbitrary decisions by courts, regulators, and bureaucrats, and laws singling out particular groups of individuals for punishment or favors under the auspices of the law.)
What I found truly egregious, however, in Dershowitz's arguments and in his whole demeanor was the self-righteous horror and amazement he evinced that the Supreme Court justices...
...broke their oaths to uphold the Constitution!
Imagine that...politicians breaking their word. Why, I never...
Lessee here... Nearly every single U.S. Representative, Senator, President, state legislator, justice at any level, governor, mayor, city council member, sheriff, police officer, and various and sundry other stripes of political animal routinely and blithefully violate the United States Constitution, oath taken or not.
An oath from the vast majority of these folks means less than the promise from a poisonous snake not to bite you.
It's in their nature, don't you know...
Gosh, I don't see Dershowitz getting his knickers in a bunch when the politicos pass welfare legislation. He's not particularly visible opposing those who promote the Drug War. How frequently has he objected when yet another disgusting victim-disarmament law is placed on the books? When did he come forward to complain about the latest implementation of business regulations, occupational "safety" guidelines, insurance mandates, or tax code? Has he vigorously contested the most recent Congressional attempts to take over the health care system via such gems as "portability," HMO "reform," and the inanely named "Patient Bill of Rights"?
Why do you suppose he focused so much energy and time -- enough, at least, to write and promote an entire book -- on a contest between Tweedle-dum and Tweedle-dumber?
All the acts mentioned above violate the enumerated powers of the Constitution. Congress, the Prez, and the Supremes have zero authority -- legal or moral -- for 99% of what they do. Such niceties as the Constitution hasn't stopped -- or even slowed -- them in a long while from adding volumes of twaddle to the Congressional record. I don't see much evidence that any of the culprits are planning to end their depredations of the legislative process any time soon.
A few years back, Congress did pass a law requiring sponsors of bills to indicate what Congressional authority they had permitting them to tender their legislation. That redundant measure proved totally meaningless. The only thing those bozos in suits do is point their grubby fingers at the much-abused and deliberately-misunderstood "general welfare" clause. If it "affects" someone, somewhere, somehow, they contend, then all is hunky-dory in the fantasy world they call Washington, D.C.
Of course, the general welfare clause (in the Preamble and in Article I, Section 8 of the Constitution) means no such thing. As James Madison said so eloquently in The Federalist Papers, number 41:
In other words, if the power granted in the Constitution, i.e., given, to Congress, the President, and the Courts is not specifically mentioned and listed, then they "no got it."
(Yes, there are borderline cases...but those are few and far between. The window afforded there is never so broad as to permit the fleet of Mac trucks the politicians have driven through.)
At the very least, any and all laws must be framed for the general welfare. The very first touchstone of any legislation is that it must apply equally to everyone. That cutoff for passage is only the first of many. "Progressive" taxation fails the test since it treats different taxpayers differently. Ignoring for the moment the total immorality of taxation, if we are to have a tax -- income or otherwise -- no distinction must be made in how it is applied from citizen to citizen.
Another criterion for a proper law is that it actually does "promote the general welfare." Here, the standard must be whether a law or regulation is the best way to enhance the lives of individual citizens to the greatest extent. In nearly every situation, they are not.
The most efficient and moral avenue towards that goal of the "general welfare" is to recognize the freedom of every individual to make his own decisions, keep his own money, and to live his live in a manner that best suits his personality and circumstances. Even from a completely utilitarian point of view, liberty works the best. Compare the U.S. vs Russia, China vs Taiwan or Hong Kong, North vs South Korea, Enlightenment vs Feudal England. In each and every case, the closer a country is to acknowledging and guaranteeing its citizens' right to be free, the better off economically those citizens are.
Of course, if the practical benefits of capitalism and freedom sufficed to guard their sanctity, we promoters of liberty would long ago have won this contest for the souls of our fellow citizens. As Ayn Rand fiercely and tirelessly pointed out, the morality of what we seek must be expounded and defended first and foremost.
Dershowitz, of course, is either too ignorant or too evasive to deal with the morality of our political system except on the most superficial level, i.e., whether or not the Supreme Court justices "betrayed their oaths of office" in ruling against the Florida Supreme Court. If he cared a whit for true Constitutional powers and the oaths people take to defend what that document says, he would write a book attacking abuses far more important and significant than a circus-atmosphere Court decision that kept out a bigger Statist in favor of a smaller one.
My Webster's says an oath deals with a person's determination to "speak the truth or to keep a promise." Once upon a time in this country, a person's oath was his bond, a pledge not lightly to be broken. A handshake and a verbal commitment formed a contract that honorable people reverently observed to the best of their abilities.
In today's world, the honor, integrity, and honesty inherent in an oath are demeaned verbally, culturally, and in overt action. In today's world, we no longer truly have "oaths of office," i.e., true promises to obey the Constitution.
Today, we are sadly left with nothing more than the sorry spectacle of oafs in office.
I wonder what James Madison would think of that?
