in his analysis of President George W. Bush Administration's premeditated policy to torture people. I agree with most everything that Mr. Rich wrote in his New York Times column, "The Banality of Bush White House Evil"; but I differ with him as to what was the orginal sin.
Mr. Rich assigns the original sin for our present policy on torture to the lies about Iraq.
Over the jump, another candidate for the original sin appellation will be discussed.
It seems that the original sin was committed by the Supreme Court of the United States (SCOTUS) when it ruled against democracy (it was the presecribed remedy that was the actual sin) in the case of Bush v. Gore.
Courtesy of Oyez, a synopsis of the question and the "limited" ruling of SCOTUS is provided. Boldfaced emphasis, added to the passage, highlights the fact that some Justices recognized the original sin contained in the ruling's prescribed remedy.
Question:
Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?
Conclusion:
Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5). Loathe to make broad precedents, the per curiam opinion limited its holding to the present case.
Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount scheme was also unconstitutional because the Florida Supreme Court's decision made new election law, which only the state legislature may do.
Breyer and Souter (writing separately) agreed with the per curiam holding that the Florida Court's recount scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that a constitutional recount could be fashioned. Time is insubstantial when constitutional rights are at stake.
Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida Supreme Court's decision ought to be respected. Moreover, the Florida decision was fundamentally right; the Constitution requires that every vote be counted.
Decisions
Decision: 5 votes for Bush, 4 vote(s) against
As a reminder, the Justices casted their votes as follows: For Bush - Rehnquist (Chief Justice), O'Connor, Scalia, Kennedy, and Thomas; Against Bush - Stevens, Souter, Ginsburg, and Breyer.
Yes, Frank Rich is right virtually in all he says about the Bush Administration's premeditated torture. On the other hand, it seems that SCOTUS set the foundation for the Bush Administration's arrogance regarding the law and the U.S. Constitution. Apparently the Bush Administration and its votaries interepreted the SCOTUS ruling in Bush v. Gore as approval of their schemes to undermine the nation's laws; be they laws on voting, privacy, or other key Constitutional rights.
Paraphrasing Onnie Jay Holy's appellation for Hazel Motes' church as the Church of Christ Without Christ (Holy and Motes are characters from Flannery O'Connor's Wise Blood), the Bush Administration put our nation on a course that would lead us to become a "nation of laws without laws" - probably as equally immoral as a church given the name Church of Christ Without Christ.
We still have an opportunity to change the immoral course on which the Bush Administration has put our nation's ship; but to change directions Congress and the Obama Administration need to act, and right soon.