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Seven justices of the United States Supreme Court found that Florida's Supreme Court violated the Constitution when it ordered limited recounts to continue across the state. But the unheralded political significance of the Supreme Court's decision lies in its using, however faintly, the natural law principles of the Declaration of Independence: the notion that legitimate government demands the recognition of the equality of all human beings, the acknowledgement of their place between God and beasts, and subsequently the rule of law, as established through the consent of the governed.
No surprise that liberals have found much to criticize in the somewhat confusing set of opinions from the high court. What's strange is the criticism coming from many conservatives. Their carping about the court magnifies other mistakes that prominent thinkers on the right make about the American political tradition. In doing so, they deprive themselves of the most powerful weapons in their arsenal against assaults from the left.
Many conservatives have no use for the Declaration of Independence. They express disdain for the equal protection and due process arguments used by Bush's lawyers and the Court, excusing them as pragmatic (i.e., unprincipled) attempts to make any argument that might work. After all, isn't this an extension of the egalitarian liberalism of the Warren Court, the Great Society, Jimmy Carter mushiness, and Clintonism?
For example, conservative hero Judge Robert Bork denounced the Declaration of Independence as the cause of current leftist demands for a flattening of excellences: Indeed, Bork says "Jefferson's resounding generalities" about liberty and the pursuit of happiness "court personal license and social disorder," especially in our current morally dissolute times. In this view, natural law does not belong in serious discourse about constitutional interpretation.
These conservatives correctly saw runaway natural law-jurisprudence in the Florida State Supreme Court's 7-0 opinion ordering recounts to begin. One can hardly find a clearer example of the judicial arrogance that conservatives have justifiably hated. The opinion was indeed a natural law — based opinion — one that relies on the Florida's Constitution's Declaration of Rights, a statement of basic citizen rights based on an understanding of what is good for human nature. The Declaration of Rights begins with the belief that "All political power is inherent in the people."
From this inarguable proposition the Court seized justification for annulling the acts of lawful executive authority:
Because the right to vote is the pre-eminent right in the Declaration of Rights of the Florida Constitution, the circumstances under which the Secretary [of State, Katherine Harris] may exercise her authority to ignore a county's returns filed after the initial statutory date are limited.
In sum: If a law gets in the way, produce an interpretation of an inarguable principle that produces the political result you desire. Liberal reliance on higher laws that wipe out the results of elected legislatures has reaped victory after victory using this simple formula, including the shrinking of religious free exercise, the imposing of racial and sex quotas, the empowering of bureaucracies, and now the encouraging of post-election fraud. Thus, a perverse understanding of natural law can justify virtually any result. But the solution is not to reject natural law altogether but to embrace the proper understanding of it — the one that underlay the founders' views and requires that government proceed with the consent of the governed and be limited in the scope of its powers.
Without explicit reference to natural law reasoning, the United States Supreme Court's opinion in Bush v. Gore reflects, however faintly, the founding fathers' concerns. A majority of the Court, five members supported by two others who ultimately dissented, found fundamental and fatal flaws in the Florida Supreme Court's recount order. These seven Justices include conservatives and liberals, both Republican and Democratic appointees. They found "arbitrary" and "unequal" policies in the Florida Court's order. It lacked the "rudimentary requirements of equal treatment and fundamental fairness" to fulfill the Fourteenth Amendment's requirement of equal protection and due process of law. Justice David Souter complains of the "unjustifiably disparate standards … applied in different electoral jurisdictions to otherwise identical facts," in counting ballots with various types of chads. Clinton appointee Justice Stephen Breyer saw a violation of "basic principles of fairness." But what prevents such a concern for "fundamental fairness" from justifying all manner of mischief — e.g., color televisions for convicts? Have conservatives sold out their principles in agreeing with Justices Breyer and Souter?
One Justice, the silent one in the oral arguments, gave conservatives the reasoning they needed, in a concurring opinion he wrote several years ago in a case that declared an affirmative action program as unconstitutional: "The principle of inherent equality … underlies and infuses our Constitution. See Declaration of Independence." So wrote Justice Clarence Thomas in the Adarand case in 1995. The principle of equality that makes government-sponsored racial preferences — whether white superiority or racial set-asides — offensive to the Constitution also protects Florida voters from a fishing expedition for votes. What equality means is limited government by consent and protection from arbitrary rules that make a mockery of the free elections required of government by consent. The basis for civil rights and voting rights is one — the Declaration of Independence's teaching of "inherent equality."
Sometimes the only means of liberating a free people from the arbitrary decisions of a court is a higher court; even more so the only means of keeping a people free from bad natural law is the real natural law, that of 1776. Conservatives need to study and honor the natural law that guided the founding fathers' understanding of the rule of law. The alternative is to aid and abet the stealing of an election and the squandering of a heritage of self-government.
