Justice is to the law what melody is to a musical score. That is, the true essence of a legal or musical a composition lies not on the dead scribbles on the pages, but rather in how we faithfully interpret and renew the themes that once danced in a their author’s mind.
The genius of the Constitution is that it is a living document. It was never intended to answer all questions for all times, but rather provide a framework where a self-governing citizenry might address new challenges for themselves. The Constitution and other founding documents do not include ironclad rules for interpreting themselves, so much as grand ideals and principles that continue to inspire self-governing citizens seeking to create a more just political order. "We hold these truths to be self-evident, that all men are created equal" was not something our country lived up to in 1776, nor is it appropriate to interpret these words literally (unless you think women should be denied the vote). But such stirring sentiments have forced the United States to live up to the promises upon which it was founded.
The tragic, sophistic, and patently indefensible verdict in Bush vs. Gore should have discredited the legal theory known variously as Strict Constructionism, Originalism, or Legal Literalism. Though it received scant attention at the time, Antonin Scalia’s rationale for halting Florida’s recounts hinged on fact that the Constitution does not explicitly give citizens the right to vote for president.
Perversely, the Court essentially ruled that although citizens have no explicit right to vote for president, recounting their votes according to different standards in different counties would violate the equal protection clause! In other words, you don’t have the right to vote, but you have the right to have your ballot counted according to uniform standards. Indeed, this latter right is so important that it trumps the former. Talk about a non sequitar.
Bush, of course, lost the popular vote to Gore, so his "victory" in the Electoral College depended on the fact that the votes in the so-called Blue States counted less than votes in Red States. This makes a mockery of Bush’s argument that recounting Florida’s votes violated the Equal Protection Clause. In fact, all the evidence indicated that Florida’s voters favored Gore too, just like the rest of the country. Of course, like Iraq’s phantom WMD, or Iran’s suspended nuclear weapons program, the Bush administration ignores evidence it doesn’t want to see.
Sandra Day O’Connor, who cast a deciding ballot in Bush vs. Gore, has since reconsidered her verdict; she now describes Bush as "arrogant and lawless." Her epithet, however, is somewhat self-descriptive since it was she who opined that Florida’s voters must have been too stupid to cast their ballots properly. In retrospect, however, it seems clear the majority of voters got right what O’Connor got wrong.
Justice Stephen Breyer, one of the dissenting voices in Bush vs. Gore, rightly suggests that self-government is a theme central to the Constitution. We must read our founding document with this in view, striving to foster a government "of the people, by the people, and for the people." You won’t reach this goal through a sterile and slavish reading of the Constitution, a la the strict constructionism of Justice Scalia (an oxymoron if ever there was one). If there’s a lesson in the debacle of Bush vs. Gore it is this: a self-governing people arrived at a just outcome, but hypocritical partisans posing as Justices overturned them.
Poetic justice occurs when the unjust get their just deserts. The hypocrite who is forced to eats his own words, the swindler who falls victim to his own scheme; or a pompous moralist who unwitting condemns himself because he fails to live up to the principles he would impose on others. We see and experience poetic justice in great literature and art -- Mozart’s The Marriage of Figaro, Shakespeare’s Much Ado About Nothing, or in countless fairy tales where charlatans, knaves, and ogres get their comeuppance.
The spectacular failure of the Bush administration is a profound illustration that justice is more than just the letter of the law, it is its spirit. Bush and his enablers have played the law like an accordion, sometimes insisting on the most expansive reading of the law possible, at other times insisting on the most literal and restrictive reading. Invariably, their legal rationales have an ad hoc character; you might say they are willing to leave no principle behind if it will help get them the pre-ordained outcome they want. In making a mockery of the law, however, the Bush administration has succeeded only in making a mockery of itself.
Justice is to the law what meaning is to a poem. That is, it exists above, beyond, and in-between the scribbles on the page. Most of intuitively know if something is fair or not, just as most of us can intuit the meaning of a poem. There are some, however, who are so prosaic that they are incapable of reading between the lines. Justice Scalia revels in calling the Constitution a "dead document," by which he means that that its meaning is fixed. It is Scalia’s interpretive method, however, which is intellectually and spiritually moribund. The verdict of history is in the process of rendering his approach to the law moot.
