Politics & Policy

This Is a Constitutional Crisis

Despite what the Democrats say.

For the first 10 to 20 days of the post-election fandango, politicians, and media types sympathetic to Al Gore’s plight were eager to make the case that this is not a “constitutional crisis.” At first this was an accurate assessment. Whether you think it was statesmanlike or merely petulant, as a matter of law all Gore wanted was a recount. The election was very close (a statistical tie in fact) and he thought it was worth asking for another look at the votes. He got his recount. Gore gained a lot of votes (though David Tell of The Weekly Standard and Professor Matthew Spiegel of Yale credibly argue this was almost impossible statistically without partisan interference). Gore lost again. And, once more, agitated Republicans and giddy media folk pondered the possibility of a constitutional crisis. And again, Gore’s friends said, no, no, there’s no constitutional crisis. Nothing to see here folks, move along. And, again, they were largely right.

Gore demanded a hand recount in selectively Democratic precincts under selectively Democratic standards by selectively Democratic counters. He pretty much got that. And then, when it was clear that the vote-haul couldn’t be brought in on time, the Florida supreme court conjured a new deadline from the same place that Medieval scholars believed mold came from, i.e., ex nihilo. And, despite this jurisprudential prestidigitation, Al Gore lost again.

Then we entered the contest period and almost all of this happened again, though in a different order and with different arguments (I would describe it all, but the wave of nausea that came over me as I tried was crippling). And again, the Florida supreme court pulled a rabbit out of their hat for Al Gore.

All the while the friends of Al endeavored to assure everyone that there was no constitutional crisis. Of course, such contentions are to Gore’s benefit. To the extent there’s a constitutional crisis, which Americans want about as much as a searing case of herpes, it would be Al Gore’s fault. Whether you think this is fair or not, it’s the political truth. Gore is the guy who’s insisting they replay the last down. Gore’s the guy who wants to say that the last hand of poker was for practice. So, if any attempt to give the baby his bottle foments a constitutional crisis, politically it must be his fault.

But there’s another reason why the liberals — the honest ones — have been convinced there’s no constitutional crisis. These are the people who believe in their heart of hearts that the federal government “runs” the country. They think presidents create jobs. They think clever new federal laws can bend human action like telekinesis can bend spoons. Hate-crimes laws can stop murder, even when murder laws can’t. During the campaign Al Gore’s team honestly argued that a law forbidding people to carry guns into churches would have kept a gunman from entering a church and shooting a dozen people. (Just to be bipartisan about this, many liberal Republicans cling to the same moronic worldview. “It is conceivable,” said liberal New York governor George Pataki, when he signed a hate-crimes bill into law last August, “that if this law had been in effect one hundred years ago, the greatest hate crime of all, the Holocaust, could have been avoided”).

For these people, immersed in the soothing self-importance of government work, a constitutional crisis conjures images of tanks and opposing armies. Indeed, this was a talking point for many Democrats. There’s no constitutional crisis, people aren’t killing each other, they’d say. Well, wait a second. As important as the Constitution may be, a constitutional crisis does not automatically invite Ragnarok (the bloody end of the world in Norse mythology or, alternatively, my mom’s reaction when I was 5-years-old when she discovered I had “made it snow” in her office with Ajax cleaner and then sprayed it all with Fantastik so it hardened into something akin to concrete).

There are almost no examples in American history of a constitutional crisis leading immediately, if at all, to fighting in the streets. Even the Civil War, probably the only constitutional crisis that most Americans could even name, was a long, long time in coming. Constitutional crises, like most of the ephemeral crises — cultural, religious, intellectual, philosophical — usually take a while before their aftershocks cause any damage. They are much more like neutron bombs than conventional weapons. If FDR had succeeded in packing the Supreme Court — probably triggering a constitutional crisis — blood would not flow down Main street, cats and dogs would not take arms against each other, and the world supply of toilet paper would not be threatened, at least not immediately. (Yes, yes, in 1828 when Calhoun and South Carolina declared states could nullify federal laws, we came pretty close to a major can of federal whup-ass being opened, and I am sure many readers will send me long essays about Shay’s Rebellion or how Jack Kemp is right that going off the Gold Standard was the equivalent of Uncle Sam swallowing strontium 90 or the Bonus Army or how the Organian Peace Treaty signed by the Klingon Empire and the United Federation of Planets resulted in …well, you get the point.)

But the fact remains; this is a constitutional crisis. Al Gore has forced it. The supreme court of Florida has nurtured it, and it’s doubtful that the Supreme Court can quell it. How is it a crisis? Well, you should peruse the last month’s content on NRO for a fuller accounting, but I can think of a few reasons off the top of my head. A court in Florida has arrogated to itself the power to pick the president based upon principles found in their magic box of nice and fair things to do. It has refused to address the concerns of the U.S. Supreme Court. In turn, the U.S. Supreme Court has been forced into paying down its reserve of credibility in order to fix the problem. The validity of national elections has been placed in doubt. The idea that courts are more legitimate political organs than elected politicians has been pounded deeper into our political consciousness. Indeed, Joe Lieberman expressly declared that if either legislature — Florida’s or Congress — dare follow the Constitution then we would be in a constitutional crisis. Considering what liberals think a real constitutional crisis looks like, them’s fighting words.


As I hinted, suggested, implied, and alluded to in recent weeks, NRO is turning things up a notch (this website goes to eleven — what’s that from?). Years from now when super-intelligent highly evolved German shepherds run the planet, they will examine the great wonders of the Ancient World. They will marvel at the accomplishments of National Review Online. They will be shocked that such a collection of can-openers (their word for humans) could have achieved such heights of wisdom in one cyber-place. They will think of us as a digital school of Athens. And then, in all likelihood, they will drink from the toilet and take a nap.

Anyway, all this week I will be announcing some of the more exciting developments in the world of NRO. The first, and to some, most exciting news, is that Byron York, formerly senior writer at The American Spectator has joined Team National Review. He will be dividing his time between that lofty publication that pays our bills (and activates my pain collar when I speak against it) and National Review Online. We are extremely excited to have Byron on board and he will be leading our effort to add some more reportorial oomph to our stew of punditry. You will be hearing a lot more about and from Byron in the days, weeks, and years to come.


The Latest