Posted on November 26, 2000

by

Daniel Clark

When people talk about a "living Constitution," what they are actually describing is The Blob, a malevolent entity which is not only alive, but amorphous, able to mold itself into any form, ooze under any door, squeeze through any keyhole. The blob embodies a voracious lust for power, which has become capable of nearly anything. As proof of that, it has shown that it can even take away a person's right to life, by taking the Fourth Amendment's protection against unreasonable searches and seizures, and interpreting it as a right to suck a child's brain out with a straw. If it can do that, it can do anything. The blob knows no boundaries, and it is therefore capable of devouring us all, if we are unable to hear it sloshing up from behind.

The blob may have been born in the Supreme Court, where the late Justice William Brennan first coined the term "living Constitution," but over time it has seeped through the cracks, washing over and consuming written laws at all levels of government. Any law, however big or small, is now capable of being absorbed into the blob as a living law. All that is needed is the help of an activist judge, a left-wing vigilante in a robe, and what had been a static, understandable law becomes animated, and creeps off the parchment and into the legal jungle.

When George W. Bush proposed to appoint judges who would actually read laws as they are written, the blob reacted out of self-preservation, much in the same way that a skunk emits a stench, or an octopus a cloud of ink. Like antibodies attacking a virus, the blob has flowed swiftly to Florida, creating "living" laws of all sorts, in order to kill the threat it sees encroaching on its territory.

On November 21, the blob assumed the form of the Florida Supreme Court, seven Democrat appointees who have more regard for their own feelings than for the law, and just might have the fate of the 2000 presidential election in their hands.

Vice President Gore, who had lost the election in Florida, both in the original count and in the recount, was pursuing further recounts, which were to continue indefinitely until he appeared to have won. His one obstacle: the law, which in that state permits recounts to be done only until five o'clock on the tenth day after the election, except in cases in which an "error in the vote tabulation" could be demonstrated. Florida Secretary of State Katherine Harris, seeing no evidence of an "error in the vote tabulation," had called for an end to the recounts as of Friday, Nov. 18, when the results of the initial mechanical recount would be certified.

The state Supreme Court disagreed ... with the law, that is. The justices ruled that an "error in the vote tabulation" did not have to be demonstrated by fraud or mechanical malfunction, but instead was evident simply by the variances of the results between the mechanical counts and sample hand recounts. This is an impossible conclusion to draw, unless one can show with certainty that the second count is more accurate than the first. With all the eyewitness accounts of chads falling on the floor during recounts, ballots becoming intermingled after sorting, exhausted poll workers having trouble keeping count, and other irregularities which appear much less innocent, we know that there have been errors in tabulating the hand recounts. The machine counts have not caused similar concerns.

The decision by Katherine Harris to stop the hand counts has been portrayed by Gore campaign hacks, and therefore by the news media, as a purely political act by a Republican Secretary of State, an assertion which does not alter the fact that Harris' decision was made in direct agreement with the law. This is but one of several instances in which Gore supporters have taken the position that enforcing the law is a partisan Republican trick.

The seven Florida justices, who the media graciously assume are above partisan politics, are deliberately misinterpreting the law, defining an "error in vote tabulation" as a result that they don't feel is right. If there were any doubt that the court was aware of its own subversion of the law, its decision tells us precisely that it was, when it says, "[T]he will of the people, not a hyper-technical reliance upon statutory provisions, should be our guiding principle in election cases."

The court cannot know what "the will of the people" is; all it can do is make a subjective judgment of what it thinks the people want, or what it thinks the people should want. In either case, that should not be the court's "guiding principle." Its guiding principle ought to be the law, a.k.a., "statutory provisions."

Of course, the court does not want to rely on the law, at least not to the "hyper-technical" extreme of taking the language of the law to mean exactly what it says. Instead, it has declared that the state of Florida now has living election laws, subject to change at the whim of the next judge who presumes to interpret them. The law as it is written is now lost, absorbed into the ever-expanding blob.

The blob has permeated all aspects of Florida's electoral process. Unlike the machine recount, which counted by the same standards throughout the process, the ongoing hand recount is a living recount, its standards for what constitutes a vote constantly morphing. Whether or not a canvassing board will consider ballots with dimpled chads, or ones that have only one corner punched out, is dependent on when that ballot passed through the hands of a counter. At the start of the recount, such ballots were discarded; now they are being collected in a "questionable" pile, their legitimacy to be determined later by the three-member board. Not only that, but Democrat recount observers have reportedly been ordered to use far looser standards for considering potential votes for Gore than for Bush. That's not what somebody would do who is simply "recounting" votes, but then, in a living recount, the duty of the observers is whatever they feel it should be.

When considering the questionable ballots, the members of the counties' canvassing boards (a majority of them Democrats in each county) will try to ascertain the "intent" of the voter. Like the justices of the state Supreme Court, they will be making judgments about something which is unknowable. In the case of a "dimpled" chad, for instance, the board might conclude that the voter who apparently made the indentation was too feeble to punch out the perforated chad, when it is at least as likely that the voter paused while pressing the chad, and decided not to vote for that candidate after all. The way the machine reads a ballot, a removed chad is a vote, and a chad left in place is not. It is an objective process through which the ballots are taken to mean what they say. The way that voters' intent is determined by the canvassing boards' psychic readings turns the punch cards into living ballots. A ballot which does not show a vote for Al Gore still has a chance to grow into Gore vote before the process is through.

The Florida Supreme Court paved the way for the count of such "votes" by misinterpreting a precedent from the Illinois Supreme Court. Judging Florida voting law by Illinois precedent is a questionable action in the first place, a little like Sen. Arlen Specter acquitting President Clinton under Scottish law, but as long as the Florida court was making that leap, it could at least have looked where it was going. While the Illinois court did say that the voters' intent should be considered when recounting ballots, the dimpled ballots in question were not counted as votes, precisely because intent cannot be deduced from them. So Florida's counting of dimpled ballots is based on a living precedent, which has grown to mean something other than what it meant when the case was decided.

The Gore campaign is still not giving up on its objections to the "confusing" Palm Beach County ballot, having collected thousands of affidavits from people claiming that the ballot somehow tricked them into voting in a way that they hadn't intended. Gore supporters argue that the butterfly ballot, with candidates listed on either side of a central column of chads, was actually illegal, because regulations required that the chads appear only to the right of the candidates' names.

Syndicated columnist and Clinton-Gore nemesis Ann Coulter, who actually read the regulation the Democrats have cited, found that it doesn't support their claims. The section Democrats are applying, entitled "Voting By Paper Ballot," says that voting should be done by placing an "X" to the right of the selected candidate's name. The punch cards used in Palm Beach County do not have a space for voters to write in an "X". These cards are part of the Votamatic ballot system, which counts votes by machine, and is covered by the section of the regulation entitled "Voting Machine Ballots." This section requires only that the ballots clearly indicate to the voters which selection corresponds to which candidate (say, by printing arrows connecting candidates' names with the chads representing them). To apply the paper ballot rules to the Votamatic system is to read them as living ballot regulations.

Once the public accepts the proposition that the Constitution means not what it says, but what five of nine justices feel that it says, it naturally follows that state and local judges are free to substitute their feelings for law also, all the while claiming that the law has grown to suit their prejudices. Ultimately, lies are no longer considered lies, but living facts. The end result is that there are no dependable rules to guide society, because whoever has more power within our system can change the rules with impunity, to the detriment of others. To put it another way, the blob is on the loose.

It's fitting that the heroes in the original film, The Blob, finally repel the creature by blasting it with carbon dioxide, the natural enemy of Al Gore. The blob is clearly a close Gore ally, which is why all its advances are leading us closer to an extension of the Clinton-Gore era. After all, Gore has promised that, if he becomes president, he is going to feed the blob generously, by appointing Supreme Court justices who will uphold Roe v. Wade, a decision Gore admits is based on the reading of something into the Constitution which isn't there.

If the blob continues on its present course, all laws will become living laws, just as they are within our federal income tax code. Situations exist in which a taxpayer can consult with two different IRS agents about taking a deduction, and get two completely different answers, one of them saying that the deduction is legal, the other that it is illegal. The taxpayer, not wanting to go to jail, will not take any deductions he isn't completely sure about, and as a result will pay more in taxes than the law requires him to.

Likewise, people will be less likely to exercise their personal freedoms if they think that their actions stand a fifty-fifty chance of being deemed illegal, depending on how a particular judge feels on a particular day. We have already seen this phenomenon stifle free expression of religion, because the blob has reshaped the First Amendment into a right to not be exposed to the beliefs of others. In a Gore presidency, there would be a similar effect on people's freedom of speech, and freedom of the press, if people are worried that somebody would find their exercise of those rights to be "hateful." As liberals are busy liberating the blob, its potential victims are forced to board themselves in.

Curiously, the blob's ally in this contest is the one who has pledged to "fight for the people against the powerful." But then, that, no doubt, was a living promise.

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