GHOSTS OF TOM PAINE: DECADAL REVIEW OF BUSH v. GORE (2000)

Ghosts of Thomas Paine:

Decadal Review of Bush v. Gore

Judicial Malfeasance, its Consequences, and the Continuing Struggle for Democratic Justice

Lon Clay Hill

Miramar, FL, USA, Planet Earth

A Citizen’s Review

[Deep Autumn Flowers blog of December 12, 2010]

Sometimes one reports a misdeed not because one can undo an evil wrought upon one’s self or upon the world, but because it is the nature of human beings that they can occasionally learn from the past and in some small way apply that knowledge to the evils of their own days. Sometimes one reports a misdeed simply because the wound still burns. Whether such a cry or report is heard or remembered, of course, is not in the hands of the witness…

PROSPECTUS. This 10th anniversary assessment summarizes the facts, inferences, and democratic principles needed to understand the most important implications and continuing harm of the United States Supreme Court’s Bush v. Gore (2000) decision. Our primary thesis is that when the Court’s narrow majority ended the recount of the Presidential vote in Florida on December 9, 2000, the Court became a de facto partisan in the election controversy between the Bush and Gore campaigns. Three days later the action was finalized and rationalized in the Bush v. Gore opinion. Using the words of the 14th Amendment as a rationale, the Court denied the equal protection of the law to Florida voters and the Gore campaign. After a number of election irregularities had been uncovered in the Florida results, the Bush campaign had then conspired to win the election by delaying the recounts by all legal means. That the Bush strategy depended upon the denial of fundamental fairness only compounded the problems in subsequent Court’s actions by the Court. In instances in which the author believes that facts, argument, and democratic principles establish an important conclusion “beyond reasonable doubt” he has been willing to express those conclusions with a rhetorical sharpness designed to challenge those who do not share his values.

Loosely speaking our narrative style will switch back and forth between ‘facts’ and ‘opinions.’ The ‘facts’ will usually provide brief summaries of election results and legal findings . My ‘opinions’ — concentrating on ‘misdeeds’ — provide analysis of the strategies, briefs, actions, and opinions employed by the political campaigns, lawyers, and courts active in the post-election contests. Of course, we all have our individual views about the Constitution. The author believes that the Declaration of Independence and Lincoln’s Gettysburg Address provide an indispensable framework for legitimate Constitutional interpretation. Put in even stronger terms — stronger, indeed, than needed to appreciate the thrust of the article below — the author believes that there is no real liberty without justice.

Some caveats. My fundamental concern here is with a deeply flawed decision of the United States Supreme Court. This is not a brief for Al Gore. I do not argue here that Al Gore would have ‘won’ the election of 2000 if the Florida recount had proceeded for an additional week or so under the guidance of the Florida Supreme Court. What I do argue here is that, appearances to the contrary, Al Gore did not get his day in Federal court. The U.S. Supreme Court had effectively made its final decision before hearing oral arguments and then formally announcing the decision. Nor is this an apology for those Florida Supreme Court’s decisions which were reversed by the U. S. Supreme Court. I argue below that in crucial instances the Florida Supreme Court provided a defensible interpretation of Florida law consistent with the Constitutions of both Florida and the United States. However, my own view is that — once the case had landed prematurely in the United States Supreme Court — only two United States Supreme Court Justices, Souter and Breyer, got the case ‘right.’ These two justices argued that the case should have been remanded to the Florida Supreme Court with instructions to implement more uniform standards for the recounts. And, of course, the Twelfth Amendment stipulates that Congress - not the U. S. Supreme Court — should resolve conflicts about Presidential Electors.

One of the fundamental problems with understanding Bush v. Gore is that coordinated misinformation has been parlayed and repeated by many partisans. The author knows that many conservative Republicans will simply continue to trust their leaders just as other voters trust other leaders. He also knows that his arguments will be ignored by very well informed, but ideologically conservative partisans who tend to view present day political inequalities as but the natural outcomes of the human condition. They do this, however, only at their peril. Today, our nation has entered into new economic and military follies with its political institutions compromised by inconsistencies similar in spirit to those identified and underlined here.

Strictly speaking, other than some arguments about the Rehnquist concurrence found near the essay’s conclusion, very little that is new is presented here. It is important to realize that many of the key problems of the decision were raised by the four dissenting justices (Stevens, Souter, Ginsburg, and Breyer). It may, however, be helpful to find so many key themes covered in a relatively short essay.

This is a citizen’s review. This is simply one reasonably informed Florida citizen speaking passionately to other citizens who either are informed or would be informed about this important event in the history of these United States. My most important sources and a modest review of the Bush v. Gore literature are placed at the end. Many of the most important facts found here have been previously reported in both Jake Tapper’s Down and Dirty: The Plot to Steal the Presidency (2001) and Charles Zelden’s Bush v. Gore: Exposing the Hidden Crisis in American Democracy (2008). Both books explore the political and legal practices and strategies of the two camps. Tapper’s book is full of some of the seamier or self-serving practices of both camps. Zelden also explores contradictions and hypocrisies, but makes more of an effort to see how the partisans themselves viewed the conflict. He also explores the substantive content of the legal arguments and court opinions. The opinions of this essay — original or no — are my own.

TABLE OF CONTENTS

[abridged titles of sections]

PROSPECTUS (2 pages)

TABLE OF CONTENTS (1 page)

INTRODUCTION: BARE FACTS AND LEAN THEMES (3 pages)

The Predicate: Bush v. Gore

Preview: Essential Themes

MISDEED #1: HARRIS’S PRE-ELECTION PURGE (1 page)

ELECTION DAY: MECHANICAL PROBLEMS (5 pages)

MORE MISDEEDS - REPUBLICAN OFFICIALS BEND THE LAW (2 pages)

Legal Preliminaries (Florida Election Law)

Florida Officials as Clones of the Bush Legal Team

KEY MISDEED - BUSH’S WATERSHED: WINNING AT ANY COST (2 pages)

MISDEEDS GALORE - FEDERALIZING THE LEGAL CHALLENGES (2 pages)

ANOTHER INTERLUDE: THE FLORIDA SUPREME COURT AND THE GHOSTS OF TOM PAINE (3 pages)

THE STAY: U.S. SUPREME COURT’S FUNDAMENTAL MISDEED (2 pages)

ERROR COMPOUNDED: USING THE 14TH AMENDMENT TO GILD A SOW’S EAR: (2 pages)

TRANSITION TO THE DARK SIDE (1 page)

THE CONCURRENCE: THE COURT’S DARK SIDE (5 pages)

CONCLUSIONS: CONTINUATION WITHOUT CLOSURE (2 pages)

A personal coda

BIBLIOGRAPHY AND BIBLIOGRAPHICAL NOTES (3 pages)

Brief Bibliographical Review

Bibliography (Abridged)

Major Cited Cases

For ease of reference, the section captions are slitely (sic) abridged here. Many of the sections can be read as stand alone items. Thus, there are some repetitions in the 'essay' as the sections are partially modularized. In some ways the work might be more appropriately described as a sequence of miniature essays addressing the components of a common theme.

The number of pages for the various sections are those of the Apple Works Program on the author’s computer. The actual number will vary across various platforms.

INTRODUCTION: BARE FACTS AND LEAN THEMES

And he [the LORD] said, “Go and say to this people:

‘Hear and hear, but do not understand;

see and see, but do not perceive.’

Make the heart of this people fat,

and their ears heavy,

and shut their eyes;

lest they see with their eyes;

and hear with their ears

and understand with their hearts,

and turn and be healed.” Isaiah 7:9-10

The Predicate: Bush v. Gore

George W. Bush, et al., Petitioners v. Albert Gore, Jr., et al, 531 U.S. 98 (2000). A case argued before the United States Supreme Court on Monday, December 11, 2000 and decided on Tuesday, December 12, 2000. The Supreme Courts’ 5-4 per curium decision ended a post-election contest in Florida over the election results of November 7, 2000. The case is usually described as deciding the 2000 Presidential Election and is often referred to simply as Bush v. Gore (2000).

During and shortly after Election Day, Tuesday, November 7, 2000 it soon became apparent that there were a number of serious problems in the vote count for President in the state of Florida. While it was indeed true that by the next day George W. Bush had a small lead of a few hundred votes in the tabulated votes, it was also almost immediately obvious that the magnitude of the problems and irregularities in the vote count were so great that it placed the determination of the actual winner of the Florida vote in doubt. Within a few days — as various other problems in other states were resolved — it also became apparent that whoever won the Florida vote and Florida’s 25 electoral votes would become become the next President on January 20, 2001. Over the next five weeks a legal and political contest raged which was not resolved until the United States Supreme Court ordered (“stayed”) the recounting to end on Saturday, December 9, 2000. Three days later, in the early evening hours of Tuesday, December 12, 2000 the U.S. Supreme Court finalized its stay of the Florida recount. This action, which insured that then Texas Governor George W. Bush would become the 43rd President of the United States was announced and justified in a 5-4 per curium (unsigned) opinion accompanied by a 3-party concurrence and 4 vigorous dissents. The full name of the case — needed sometimes in legal research —is George W. Bush, et al., Petitioners v. Albert Gore, Jr., et al, 531 U.S. 98 (2000), but will be referred to here simply as Bush v. Gore (2000).

Preview: Essential Themes Elaborated

On Tuesday, November 7, 2000 the people of the United States went to the polls to choose their next President. By noon the next day it began to emerge that final determination of the election winner would almost certainly depend upon the results from the State of Florida. Whichever candidate received a plurality of the Florida vote would receive all of Florida’s 25 electoral votes and, consequently, the needed majority of the nation’s electoral votes needed to become President. A day after the election, then Texas Governor George W. Bush had a small lead in the unofficial vote count over then Vice President Al Gore, Jr. A mandated machine recount reduced the Bush lead somewhat. However, it soon became clear that there had been serious problems with ballots, voting machines, and even possible legal misconduct. Over 200,000 Florida ballots had not produced a vote for President when run thru the standard election counting machines (most Florida voters need to either punch a hole of darken a ‘circle’ on their ballots to register their choice). Under the settled election law in most states as of November 7, 2000 — legal procedures in contested elections frequently required a final visual inspection of contested ballots by designated local, county or state officials. The understanding among lawyers, politicians, and judges was that various physical marks from improperly working voting machines (and occasional notes by the voters themselves) could be and had often been utilized to ascertain voter intention under the standards stipulated by state law. In the case of the uncounted Florida votes, there were at least thousands or even tens of thousands of uncounted Presidential ballots which might eventually be appropriately deemed legitimate votes by County Election Boards. Since 1975 the final standard for counting a legal Florida vote had been the determination of ‘the voter’s intent.’ This principle had been articulated by the Florida Courts and had been supported by implementing Florida legislation. At this point I simply note that it is not surprising that different parties to an important election conflict would differ on what they believe to be proper standards for evaluating any forthcoming evidence. Furthermore, I believe it entirely legitimate that the parties might litigate such issues.

One very important additional feature of the Florida count in 2000 that did not apply to most previous election results is that the Nation itself had a important interest in the Florida results. After all, the 43rd President of the United States was to be inaugurated on January 20, 2001. To insure a smooth transition, two dates were of particular legal importance. One, if the Florida results were finalized by December 12, the results from Florida were legally protected from almost any conceivable challenge. Two, the electoral college would meet on December 18 - the date which had almost always been the date when the official results of the electoral college were determined. This second issue presented, however, a serious moral temptation for the Bush campaign and legal team — a temptation which they were unable to resist. Almost from the beginning the Bush campaign tried to prevent a fair recount by simply using all legal means to delay any and all recounts of the Florida vote. (There is also evidence that some partisans used illegal means as well, but this evidence was not before the Court and does not strike the author as the major issue.) The Bush campaign filed their first legal challenge to recounts on Saturday, November 11.

Slowly but surely, the Florida recount proceeded by fits and starts with first the Florida Court and then the United States Supreme Court becoming involved. On November 21 the Florida Supreme Court (Palm Beach County Canvassing Board v. Harris, [7-0]) overruled some of Florida Secretary of State Katherine Harris’s attempts to stop the manual recounts of Florida vote. After this first decision by the Florida Supreme Court, on December 4 the United States Supreme Court in Bush v. Palm Beach County Canvassing Board tentatively set aside [”remanded”] the Florida Courts's actions and rationales. In Florida other legal challenges and conflicts raged on. On December 8 the Florida Supreme Court (Gore v. Harris, [4-3]) initiated a recount in all 67 Florida Counties. The Florida Court decided that only by implementing the recount in all counties would the decision be regarded as ‘fair.’ [It seems obvious to me that the Bush Campaign was not interested in ‘fairness’ — they had simply wanted the counting to stop while Bush was ahead. To be sure, they had argued all along was that the only ‘fair’ thing to do would be to stop the recounts.] All of this, however, was quickly rendered mute. On the very next day, Saturday, December 9, 2000, the U.S. Supreme Court abruptly halted the recount and on Tuesday, December 12, 2000 the U.S. Supreme Court in a 5-4 per curium [unsigned] opinion finalized and justified their actions. In Bush v. Gore (2000) the Supreme Court’s action insured that then Texas Governor George Walker Bush would become the 43rd President of the United States.

We present here the basic fact, inferences, and principles which should, we believe, lead most neutral and informed observers to question and criticize Bush v. Gore. Before proceeding further, we stipulate that we do not here wish to argue whether Al Gore would have received a plurality of the Florida presidential vote if the Florida Supreme Court had been allowed to supervise the Florida recount until December 18 or any other date. No one knows the answer to that question. Furthermore, as will be evident below, this essay does not provide any blanket endorsement to either the Gore political and legal actions or of the Florida Supreme Court’s judicial findings. What we do insist upon here is that prima facie hypocritical and politically motivated partisan judicial support for one party to a legal dispute is both Constitutionally and morally unacceptable. When the Supreme Court of the United States does this it is both a national disgrace and and a political folly of the highest rank.

MISDEED #1: HARRIS’S PRE-ELECTION PURGE

Katherine Harris’s partisan pre-election purge

For nearly a century and a half successive Florida administration’s have worked to prevent full participation by Florida’s African-American voters in Florida elections. After the Civil War, democrats took the lead in disenfranchising black Floridians. In recent decades, Republicans have taken the lead in discouraging and suppressing the black vote. Current Florida Republicans, of course, do not engage in cross burning and night rides; they do, however, consistently favor restrictive registration practices which tend to preferentially suppress minority turnout. This is a rather broad statement which should be qualified — some things have certainly improved for Afro-American and other minority voters. For, example, slowly, but surely growing numbers of Afro-Americans have been able to win public offices in various parts of Florida as members of both major parties. In South Florida, in particular, Cuban Americans have even become entrenched partners within the power structure.

Still, if one has actually followed the actual voting patterns in Florida, it is clear that Florida’s electoral practices continue to embody de facto discriminatory procedures and outcomes. Thus, it should not be too surprising that before the 2000 election Florida Secretary of State, Katherine Harris initiated a purge of the Florida rolls targeting likely Democratic voters. Before the November 2000 election, her office provided Florida Election Boards with a list of persons who, it was asserted, should be struck from the voting lists. This supposedly authoritative list of ineligible persons was, in fact, a mixture of names. Many of the names were indeed the names of persons ineligible to vote (usually felons), but thousands of the names were those of eligible voters whose name happened to resemble that of an ineligible person. The Secretary had in fact been forewarned that the computer program(s) used to generate the list were susceptible to numerous “false positives.” Rather, than practice due diligence in establishing a reliable list of ineligible voters she plowed ahead. The predictable results of this and other carelessly pursued practices were that some thousands of eligible voters were — without notification — struck from the rolls. The demographics of the purge — and, presumably, its motivation — were that traditionally democratic voters were differentially disenfranchised. In 2000 Katherine Harris was also Cochair of the Bush Election Campaign in Florida. So it is quite clear that long before Election Day she had crossed the line which separates a public official and a partisan political operative. As the good teacher observed, “You cannot serve two masters.”

It seems quite likely that the most important consequence of this partisan pre-election purge was that instead of Al Gore, Jr. winning a close election in Florida and the Nation, the Florida election result was too close to call.

ELECTION DAY: MECHANICAL PROBLEMS

During and shortly after Election Day, Tuesday, November 7, 2000 it soon became apparent that there were a number of serious problems in the vote count for President in the state of Florida. As indicated in Section II (Harrison’s Partisan Purge) a few thousands of voters were improperly turned away because of policies emanating from the FLorida Secretary of State. Secondly, poor ballot designs in Palm Beach and Duval Counties confused thousands of voters. In these two counties alone it appears that over 30,000 predominantly would be Gore voters inadvertently ended up voting for two candidates [such ballots are normally discounted as “overvotes”]. Statewide, approximately 200,000 ballots did not contain a machine readable vote for President. Most ballots used in Florida were read by Punch Card Readers [The voter used a provided stylus to punch a hole in a perforated ‘box’ next to the candidate’s name]. In other counties ballots used in Florida were read by Optical Scanners [Voters indicated their choice by using a provided pen or pencil to fill in an oval next to a candidate’s name]. The rejection rate for reading ballots in counties using Punch Card Readers were typically several times higher than those in counties using Optical Scanners. In some precincts the rejection rates were anomalously high — reaching 10% or even 20%. In some cases, there was clear evidence of machine malfunction. Included in those counties with large numbers of machine uncountable votes were the three South Florida Counties — Palm Beach County, Broward County, and Miami-Dade County. There were several other important issues. In Seminole County workers for the Republican Party had been allowed to fill out incomplete voter applications forms for 2,100 voters. Republicans in Martin County had also fill out incomplete applications. For a week or two absentee ballots — some from overseas military personnel would arrive — sometimes without postmarks or with post-election day postmarks.

I do not wish to get into the weeds in analyzing these problems. In the references I point the reader to proper documentation for those interested. Rather, I want to make some general propositions. The best way for a voter to insure that their vote will be counted is to follow instructions — and to ask or even demand help from election officials if there is an apparent problem. If the voter makes a makes a mistake or if a machine malfunctions it is always harder to remedy matters after election day than it is to exercise due caution on Election Day. It is now actually fairly clear that a plurality of Florida voters intended to cast their presidential ballots for Al Gore. It is also quite clear that the intentions of that plurality were not implemented in a machine readable form. The outstanding issue immediately after the first results had been tallied was whether there were a sufficient number of remaining uncounted legal votes to affect (change) the final Florida outcome. The actual answer to that question is not really known today. However, the issue of how one might answer that question today and how one might have answered that question ten years ago is still of fundamental and burning importance to those of us who believe that we as a people are to be judged by the standards proclaimed in the Declaration of Independence, the Bill of Rights, the 14th and other Amendments proclaiming and extending the right to vote, and the Gettysburg Address.

Let me expound. There were several discernible principles involved in counting the votes. As mentioned above two of the most troubling problems for Democrats resulted from ballot designs in Palm Beach County and Duval County. In the 2000 election ten Presidential candidates were to be placed on the Florida ballot. Ten Presidential candidates is too many names to place comfortably on a single page in large, readable print - and so the election officials produced ballots spreading the candidates over two pages in both counties. Unfortunately, the new designs in these counties confused a large number of voters who ended up voting for two presidential candidates (usually Gore and one other person). Unfortunately, also, for the Gore campaign was that undoing any mischief in these two counties presented very difficult, essentially insurmountable, legal challenges for the Gore campaign.

On the other hand, some of the other problems experienced by voters in some Democratically leaning areas could be addressed according to the legal standards in place on Election Day, November 7, 2000. In Florida, in 1975 the Florida Supreme Court had held that the fundamental standard for determining a vote was “the intention of the voter.” [Clear evidence of voter intent would be a voter writing in the name of a candidate who he has already marked on the ballot. This might be read by the machine as an attempt to vote for two different persons. Another common mistake would be for a voter to make a note on the ballot if he/she mistakenly marks the wrong candidate. Their intention is clear, but they have not followed the written instructions.] Further cases in Florida Courts and additional implementing legislation by the State had established general guidelines which left final resolution of individual ballot issues in the hands of local election boards. These specific guidelines were seen as consistent with some of the specific language of the Florida Constitution as well as the more general federalism of the United States. In our Federalist System local jurors must use their individual discretion in both State and Federal courts. Likewise, before December 9, 2000, local election officials were to use their individual discretion in both State and Federal elections. It should be noted that similar practices had been practiced in many other states besides Florida — including George Bush’s Home State of Texas. It should also be noted that standards for reconsidering uncounted ballots were more explicit or uniform in some states than others.

So as the outline of the election’s results emerged, it seemed clear to the Gore Campaign that a plurality of Florida voters had intended to vote for Al Gore and that it might be possible — using extant standards — to determine that a plurality of the legal votes had been cast for Gore as well. This was not merely because the Florida protocols might be read as somewhat “permissive” — Florida law allowed votes to be counted even when the voter had committed a procedural error as long as the clear intent of the voter was clear. As further inquiries continued after the election, it also began to appear that individual machine malfunctions were contributors to the large number of machine unreadable ballots. Under Florida law, the Gore campaign could initiate various legal challenges — and, two days after the election, the Gore campaign formally asked for hand recounts in four Democratic Counties of Broward County, and Miami-Dade County, Palm Beach County, and Volusia. One reason Gore only asked for recounts in four counties is that it seemed unlikely that time would allow reliable recounts in the limited time remaining.

The first problem to receive widespread attention was caused by the so-called “Butterfly Ballot” in Palm Beach County in heavily Democratic South Florida. To remedy the problems presented by the large number of candidates Palm Beach County election supervisor, Democrat Theresa LePore placed the Presidential Candidates on facing pages. Unfortunately, the perforated holes for candidates on the right page were close to the holes for candidates on the left page. In particular, the proper punch hole for Democratic Al Gore was distractingly close to the proper punch hole for minor party Pat Buchanan. In the official count Buchanan received 3407 votes -- perhaps 5-10 times what would have been expected based on previous voting patterns. Even more troubling to horrified Democratic election workers — after the election a final tally recorded 5,264 presidential ballots which had been uncounted because they punched the holes of both Buchanan and Gore (“overvotes”) The Palm Beach County rate of such spoiled ballots were over 50 times the rates in neighboring Broward and Miami-Dade Counties. Post-election interviews soon made it clear that a significant number of Palm County voters voted for Gore after having mistakenly punched out the hole for Buchanan or had otherwise intended to vote for Gore. While there is little doubt that the Butterfly ballot had effected enough voters to effect the outcome of the election that does not mean that there would be legal remedies for the flawed design. For one, voters can usually ask for help or even for a new ballot if they spoil one. Secondly, if a revote were to be held — knowing the results of the other Florida voters — it would be easy to imagine that election day voter for Ralph Nader voters might easily choose Gore the second time. While a large number of lawsuits were filed by private citizens and political groups specifically challenging the Butterfly Ballot, they were all eventually thrown out

A second and larger problem which did not receive widespread attention for several days occurred in Democratic Duval County, the home of of Jacksonville. On this Ballot the Presidential candidates were on two clearly separated pages. In this case, however, on both pages the voter was instructed to choose one candidate on the page. Further confusing matters, a ‘sample ballot” published in the local newspaper just before the election had been configured differently. In this case almost 22,000 ballots were uncounted because they punched the holes of both Gore and another candidate on the second page. (“overvotes”) [In this case, the frequency of ‘overvoting’ was highest in districts where Gore had strong majorities.] In this case, news of the magnitude of the problem reached the Gore campaign after the most important legal deadlines for filing legal protests. While again there is little doubt that the Design and Instructions of the Presidential ballot had effected enough voters to effect the outcome of the election, again that did not mean that there would be legal remedies for the flawed design. It is true, of course, that many of the voters lost their Presidential vote precisely because they followed directions. However, it is also a cardinal rule of most American elections that you can only vote for one candidate for a single election.

A third problem quite resistant to legal remedy had occurred in the Panhandle of Northwestern Florida. After 7 PM Eastern Standard Time, polls had closed in most of Florida. Soon afterwards some national Networks had declared — on the basis of some incomplete sampling and flawed exit polls — that Al Gore had “won” Florida. Unfortunately, several Panhandle counties were on Central Standard Time where polls were still open. Anecdotal evidence suggests that a significant number of would-be Bush voters were so discouraged that they decided not too vote — in some cases after they had already headed for the polls. Whether there were “thousands” as Karl Rove suggested is not clear. What is clear to me is that the network’s behavior was reprehensible and should be forbidden.

Some other problems seemed more addressable to legal redress. Various immediate analysis — largely confirmed by more complete subsequent analysis — revealed that a number of poor and black districts using the Data-Punch voting machines recorded much higher percentages of uncounted votes than the Votomatic and the Optical scanners used in more affluent and more frequently Republican counties. In at least some cases, the malfunctions were clearly due to malfunctioning machines. When voter ‘punches’ his selection, the pieces of punched out perforations (“chads”) collect underneath the stylus position. These accumulated chads could prevent the voter’s stylus from fully penetrating the paper and punching out a hole which would be detected by the vote counting machine. Instead, the voter’s actions result only in a ’dimple’. These ‘dimpled chads’ and the partially penetrated ballots with ‘hanging chads’ have frequently been utilized to determine the intent of the voters. Under our federal systems the standards and procedures the standards used have varied somewhat from state to state in ways that have not been previously challenged. In Florida the final determination of voter intent was vested in the County 3 person election board. The standards had been spelled out in Florida Supreme Court decisions (1975; 1995) and supported by Florida law.

In this situation where it was already clear to the Gore campaign that a plurality of Florida voters had intended to vote for Gore it seemed reasonable to see if there were enough uncounted — including some significant number of cases where machine handled ballots had malfunctioned — ballots which might reveal legal votes under the standards of Florida law.

MORE MISDEEDS - REPUBLICAN OFFICIALS BEND THE LAW

Legal Preliminaries (Florida Election Law)

In 2000, Florida election laws contained several sections which were particularly relevant to determining election results and resolving conflicts over those results. Section 102.111 (adapted in 1951) requires the Secretary of State to ‘certify’ the results of an election 7 days after the election. However, Section 102.112 (adapted in 1989) allows the Secretary of State to accept returns after 7 days and thus implicitly amends Section 102.111. Certification is important because it provides a baseline count which will stand unless and until additional information requires subsequent changes in the vote count.

Sections 102.166 provide additional stipulations about what might and/or should be done in case of legal ‘protests’ begun before ‘certification.” In large counties, section 102.166 guidance for election protest would be meaningless (a legal ‘nullity’) if Section 102.111’s strict guidelines were adhered to.

Sections 102.168 regulates legal ‘protests’ initiated after ‘certification.” As noted by Justice Souter in Bush v. Gore oral arguments section 102.168 lacks temporal guidelines per se. However, the Florida Supreme Court and both parties agreed that completion of counting by December 12 or soon thereafter was highly desirable if not imperative. Electors chosen by December 12 would be protected under so-called “safe harbor” provisions in Federal Election law. (Both the Bush legal team and the Florida Attorney General argued that an absolute December 12 deadline was required.)

One of the fundamental principles of adjudication when statutes appear to conflict is to seek to resolve those conflicts by preserving the underlying purpose of the statutes. If that is not possible, one manner to resolve the conflict is to give precedence to the more recent enactments. If these and other normal ‘procedures’ are inadequate for resolving the conflicts, judges sometimes search for explicit guidance from their Constitutions.

Acting in their official capacities, several important Republicans begin to act as clones of the Republican party.

In the first few days after the November 7, 2000 election. Republican state officials lead by Katherine Harris — simultaneous Florida Secretary of State and CochairFlorida Bush Campaign — began to offer a series of legal opinions, advice, briefs, and actual court appearances which consistently bent the meaning of Florida’s election laws into tools of the Bush legal and political Campaigns. They did this in two ways. First, they rejected the plain meaning of Florida laws governing “election errors” into narrowly mechanical prescriptions regulating the use of election machines. Secondly, they hewed to some deadlines and prescriptions found in older sections of Florida election law to essentially nullify other several more recent laws enacted by Florida lawmakers. While engaged in their single-minded efforts to prevent, delay, and delegitimize all efforts at manual recounts, the Secretary and her office declared that they were practicing “discretion”. When matters came to a head, they did so in two Florida Supreme Court cases appropriately titled Palm Beach County Canvassing Board v. Harris and Gore v. Harris. During the month long electoral contest, Republican lobbyist J. M. “Mac” Stipanovich was frequently inside the Florida Department of State where he relayed advice from the Bush Campaign to Katherine Harris in a number of (presumably) unrecorded sessions.

In these two and other cases Florida Courts, especially the Florida Supreme Court, eventually overruled the Secretary and her department on several counts. The Florida rulings, in effect, indicated that “discretion” for a Florida elected official presumably includes fealty to one’s oath, the law, and the interests of the general population instead of a transparent dedication to a single political candidate. [Mrs. Harris even reported a dream in which thousands of supporters at the University of Florida’s football stadium were cheering her actions on behalf of George Bush.] Of course, partisan acts of the Republican officials continued until the end. During oral argument before the U. S. Supreme Court on December 11, Joseph P. Klock Jr., counsel for the state of Florida, essentially argued once again that clear guidance from both previous Florida legislative enactments and Florida Court decisions should be ignored.

While the Secretary and her Office had been overruled, much of the damage had been done. By delaying and slowing the recount of Florida votes, their actions unfortunately revealed the truth of the old adage that “justice delayed is justice denied.” The Secretary of State is properly given judicial and legal deference because — absent evidence to the contrary — she is presumed to be acting on behalf of the state and its people. It is to be expected that a conscientious Republican might and should interpret the law in a manner different from that of a member of another party. However, when this Secretary became instead a single-minded advocate for a single political candidate she accomplished a great deal of mischief inconsistent with the duties of public office. However, it would require additional help from others above her in the political-legal world for the mischief to be given full play.

PRINCIPAL’S MISDEED - BUSH’S WATERSHED: WINNING AT ANY COST

Under Florida Law in 2000, a candidate could ask that votes be challenged in those counties or jurisdictions where he believes he has been adversely effected because legal votes have not been counted. As indicated above there was strong evidence that there were indeed significant numbers of uncounted Gore votes embedded in the uncounted votes of democratic leaning and minority-rich voting populations. Consequently, on Thursday November 9 the Gore campaign asked for manual recounts in 4 counties — Broward, Miami-Dade, Palm Beach, and Volusia. The Gore campaign had chosen these 4 counties both because they were democratic and because these counties offered ample evidence of probably significant legal, but uncounted votes. Florida law provided for such recounts with several stipulations on the criteria needed to actually manually recount the counties ballots. However, the Gore campaign had restricted itself to these 4 counties partly because there did not appear to be enough time to recount ballots in all of Florida’s 67 counties. Other more political considerations were clearly in play, but under the law Gore had the right to request such a recount in the first 7 days after the election. If any such recounts were completed by November 14 they would automatically be included in the “certified” vote count. Only the Volusia County recount made this deadline and its results were indeed included in all subsequent tallies.

Republican operatives and commentators charged that Gore was ‘cherry picking’ the result because he avoided the possibility of recounts in counties with Republican majorities. So, on November 15 Gore countered with a proposal of his own. One, if the manual recounts of Broward, Palm Beach, and Miami-Dade Counties and overseas absentee ballots be allowed to continue without interruption, he would agree to abide by those results. Two, if this were unfair, then he was prepared to join the Bush campaign in a proposal to continue the manual recount of the undervotes in all Florida Counties and he would accept that finding as final. [There were additional legal issues that Gore might reasonably pursue and consequently did so.] Bush dismissively rejected the proposal. The election, he said, would not be decided by ‘deals.’ Faced with a choice between a recount which would ‘count every legal vote’ and insure the moral legitimacy of the winning candidate, he chose instead to continue his legal campaign to delay at every turn the inspection of uncounted ballots while his political operatives continued to vilify Gore for seeking those legal remedies which were available. While much has been made of the fact that Al Gore said that he would do ‘anything’ to become President, it was actually George W. Bush who most clearly indicated that He would rather be President than be right.

If you listen carefully to the tone of Bush’s own statements — it is clear that he thought be had already been elected, that the office belonged to him, and that Gore’s actions were the actions of an impostor. When he later became President he would start a war based on similar instinctual ‘knowledge’ that “Sadaam Hussein had weapons of Mass destruction.” Likewise, he would justify torture under the mistaken fantasy that the fragments of inconsistent information obtained under torture would outweigh the thousands of Muslim Jihadi recruits spurred to action. [These recruits knew more about the actual tortures at Guantanamo, Bagram, and Abu Ghraib than the American people who have been shielded from a full disclosure of events at the United States Military’s overseas prisons.] November 15 was the day George W. Bush crossed his Rubicon — placing his private ambition over the need of his deeply divided country to have a election result they could accept. He would, from time to time, display some ‘compassionate conservatism’ on issues such as AIDS and immigration, but his Presidency will be mostly remembered for its obstinately aggressive foreign policy.

MISDEEDS GALORE - FEDERALIZING THE LEGAL CHALLENGES

Olsen enlists his federal friends to subvert settled law

Only four days after the election the Bush campaign began its eventually successful campaign to use the Federal Courts to stop the recounting of Presidential ballots. On November 11 the Bush campaign filed a lawsuit in Miami (Siegel, et al. v. Lepore, et al.) seeking declaratory and injunctive relief to halt all manual recounts. For many knowledgeable observers this campaign seemed foredoomed to failure. In the first instance, inspection of individual ballots was a staple of election law. When the Florida Supreme Court made its first important decision (Palm Beach County Canvassing Board v. Katherine Harris (Nov 21, 2000), it made a number of references not only to Florida statutes and precedents, but it also referred to a number of similar holding in other states. In our Federalized system the voting process has almost always been structured by the states with provisions for voting and elections tailored by state law. Absent some very unusual circumstances, it has been customary to consider state Courts as the Courts best qualified to interpret State law and its jurisdiction in all elections. The most important historical exception to this, of course, has been the necessity of Federal Law to insure the voting rights of African Americans in the Southern states of the old Confederacy. Furthermore, in 2000, seven of the nine members of the United States Supreme Court had been nominated by Republican Presidents — and during their tenures several of these Republican-appointed justices had been normally been quite loathe to interfere in traditional state jurisdictions. Indeed, its conservative majority had by 2000 already made several important decisions restricting the Federal government’s powers in controversies involving privileges of state governments. So, it surprised no one that the Federal district and Appeals Courts were slow to assume a supervisory role in an election as a number of challenges in Federal Courts by the Bush legal team were summarily dismissed. To be sure, electing a President is by its very nature is a Federal issue, but other than requiring the election to be held on the same day in all states and requiring that the results of these elections be forwarded to the Senate to be counted — very little has been set in stone before 2000.

All this was about to change. Sensing that the Florida Courts would not be amenable to ending the Florida recount, the Bush campaign set about trying to find a federal issue which could land them in Federal Courts. There, they apparently reasoned, the Republican-rich Federal judiciary with its many friends and sympathetic colleagues. Friends and colleagues from periodic meetings of Judicial Conferences, the Federalist Society, and the American Heritage Foundation could be expected to lend a sympathetic ear. In due time the Bush team would be rewarded in spades.

The first substantive realization of their strategy was in the United States Supreme Court decision Bush v. Palm Beach County Canvassing Board. Argued on Friday, December 1 and decided on Monday, December 4, this decision set aside (“remanded”) the Florida Supreme Court’s Decision of November 21. This first Supreme Court decision was not, strictly speaking, final. Rather, the Court suggested rather emphatically that Florida’s Supreme Court was perhaps ‘creating new law’ in a manner inconsistent with Federal Law designating the Florida State Legislature as the authoritative determiner of Florida Electors. In this case, the U.S. Supreme Court had relied heavily on portions of an 1892 decision (McPherson v. Blacker) in their initial inquiries.

When the United States Supreme Court eventually overturned the Florida Supreme Court in Bush v. Gore, the U.S. Supreme Court majority used an entirely different 14th Amendment rationale to overturn the Florida Supreme Court. However, the early argument about the plenary authority of the legislature had its effect. For one, it provided cover for the Bush campaign to bring in subsequent claims before the Court. Secondly, three members of the Florida Supreme Court apparently heeded the thinly veiled judicial warning — and retreated from their previously vigorous support for determining the intent of the voter so strongly protected in the Florida constitution.

ANOTHER INTERLUDE: THE FLORIDA SUPREME COURT

Justice, the 14th Amendment, and Apparitions of Tom Paine

It is important here that I make clear the most important legal, moral, political, and philosophical assumptions which I make in evaluating the Bush v. Gore contest. In reviewing this contest I do not assume that the Gore campaign’s legal strategy was either wise or inspiring. What I assert is that they had their right to a fair hearing inside a building which has the words “Equal Justice under the Law” emblazoned in stone above its entrance. Furthermore, the Gore campaign did not receive that fair hearing. Part of that conclusion is based upon the facts and arguments developed both above and below. And, of course, my conclusion is framed by fundamental assumptions about political morality. The author tends to view with favor Constitutional interpretations which further the Expansion of Liberty as we aspire to “Equal Justice under the Law.” For starters, I begin by stating that I accept the Declaration of Independence, the Preamble to the Constitution, the Bill of Rights, and Lincoln’s Gettysburg address as the most essential defining standards of American Constitutional Law. Furthermore, I would add that the 14th Amendment (plus the franchise expanding Amendments 15, 17, 19, 24, and 26) embody the principle of expanding liberty implicit in those defining standards.

Thus, I regard Justices Rehnquist and Scalia’s contentions in oral argument to the effect that the Constitution does not guarantee an individual Right to Vote as both silly and malevolent. Of course, the Constitution of 1787 did not guarantee universal suffrage. The Constitution does not define robbery or murder. The vast majority of people in the United States today understand quite clearly that the phrase “equal protection under the law” means, among other things, that the right to vote is now a precious part of the liberty of all. Our present understanding of the Constitution as it now stands after 27 amendments and five amendments specifically referring to the right to vote is informed by our history. We have had — in addition to a great Civil War — the Jacksonian movement, the suffrage movement, and a civil rights movement which have expanded the ‘blessings of liberty’ well beyond the confines of those who ratified adopted the original constitution. We have not needed a Constitutional Amendment to mark every step along our way as we have expanded the franchise. To suggest in the tradition of Rip van Winkle that we can look at the Constitution of 2000 with the eyes of Alexander Hamilton or James Wilson is fatuous. Voting can and must be regulated — and we can and must debate the standards. Pretending, however, that it is dispensable for a democratic republic should alert the public to some deeply cynical and illegitimate forces which affect our courts.

I also want to make it clear that I do not believe that the Florida Supreme Court made the wisest disposition of all those cases which came before it during the legal contests of November and December. An early issues arising in Seminole County involved ballots cast by voters whose incomplete voter applications had been completed by workers for the Republican Party. Another early issues vetted in state Courts were the admissibility of a large number of absentee votes from overseas which were counted after election day. (Normal Florida protocol had been that such votes were not to be counted without a proper postmark. Particularly troubling is the fact that a surge of late votes began to appear a week after the election [7 times as many absentee vote appeared on November 14-17 as had appear in the six days between November 7 and November 13]). While for political reasons the Gore campaign did not wish to ‘appear’ to be against the principle of respecting the “intent of the other” in a group with a large complement of members of the military — there was never a need by any party to allow standardless provisions to prevent fraud. The Bush legal and political campaigns pursued a scorched earth policy with respect to the counting of civilian votes while simultaneously arguing for extremely permissive standards for absentee votes. That the Gore legal Campaign did not press the issue of the Bush’s campaign blatant hypocrisy was a tactical mistake. That the Florida Supreme Court did not press the issue of the contradictory legal arguments of the Bush campaign was a judicial error.

However, the Florida Supreme Court’s greatest tactical and judicial mistake was that it did not provide more uniform guidelines for the election boards in permitting the recounts to proceed (Palm Beach County Canvassing Board v. Harris [Nov 21] and in their eventual order of a statewide recount (Gore v. Harris [Dec 8]). Now to be sure there did not exist in Florida or Federal Law strong precedents for such actions per se. Furthermore, the Bush campaign, Republican Florida legislators, and the conservative press were accusing the Supreme Court of “making new law.” Understandably then, the Florida Supreme Court did not wish to invite such challenges to their holdings. However, in 2000 a new phenomenon had occurred — present before the nation were clear examples of different standards being used in different counties and there were even some instances of the same county officials changing their standards as they went along. Fidelity to the principles of equal justice under the law required more insistent supervision.

Another important mistake was that the Florida Supreme Court was late in responding to the Bush v. Palm Beach County Canvassing Board remand of the U. S. Supreme Court (December 4, 2000). The Florida Supreme Court did not respond until December 11 when the drama had virtually played out. The slow response was understandable in the frenzy of activity in early December, but it was not helpful. Some clear words - or at least some preliminary arguments - needed to be articulated against the arguments of the Bush legal team and contemporary Florida Republican legislators. The Florida Supreme Court was not making new law. They were interpreting — as was their responsibility — some new and difficult problems for Florida Election laws in terms of (1) the Florida Constitution, (2) previous decisions of Florida courts, and (3) the statutes enacted by the state legislature. What the members of the Florida Court did not know is that their opponents — in pursuing the election of George W. Bush — would be willing to bend the law to eventually novel ex post facto justifications for an act of judicial usurpation.

At the deepest level, the Florida Supreme Courts’ decisions revealed a Southern State Court in the former Confederacy which would take the lead in providing the substantive relief implicit in the 14th Amendment. That Amendment requires that States offer its citizens “the equal protection of the laws.” For the most part the Florida Court had attempted to do just that.

THE STAY OF DECEMBER 9, 2000 — THE SUPREME COURT’S FUNDAMENTAL MISDEED

On December 9, 2000 The United States Supreme Court ordered an end to the Florida recount. In so doing the Court became a FULL PARTY to the Bush Post-Election strategy to prevent a fair recount of the Florida Presidential vote.

On Friday, December 8, 2000 the Florida Supreme Court (Gore v. Harris)— partly in response to vituperative assertions that the Gore Campaign’s request for manual recounts in four counties was so selective as to constitute a violation of the rights of Republican voters — had ordered that the recount be extended to all 67 counties. Procedures were immediately implemented with some expediting flourishes and with final authority on disputed ballots designated to specific election officers. However, the Florida court did not imposed any additional clarifying standards for the officers. This failure to impose additional standards was at least partly to avoid further charges that the Florida Court had created “new law.” Essentially, the plan was to get as many votes examined as possible before the Electoral votes were made on December 18. It appeared that Al Gore, Jr. indeed had had his day in Court. Whether there might be enough legal votes to change the results was yet to be determined.

However, the procedure came to a screeching halt the next day. On December 9, 2000 the U. S. Supreme Court ordered an end to the Florida recount. In addition it asked for briefs and announced that oral arguments in the case we now know as Bush v. Gore would be hear on Monday, December 11, 2000. One might ask, of course, why the stay? Shouldn’t the Court hear the case before making any final decisions? If Gore is entitled to some — admittedly time-limited relief — what harm is there in continuing to count as long as feasible? Isn’t the stay simply the Bush strategy of delay, delay, and delay. Shouldn’t the Court hear both sides of the story before implementing the strategy of one party. All that is, in fact, all too reasonable. A narrow majority of the Court had, it seems, already made up its mind.

The evidence was not hard to find. Antonin Scalia added a short note to the Court’s order of a stay:

“The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election, ... Count first, and rule upon legality afterward, is not a recipe for producing election results that have the public acceptance democratic stability requires.”

The issue before the Court was precisely whether the Florida recount then in progress was applying sufficiently high standards in their efforts to recover legally cast votes which had not been counted. There is no question for an honest observer that (1) legally cast votes had not been counted and (2) that, until the Florida Supreme Court Gore v. Harris decision of Dec 8, the remedies being utilized were not sufficiently uniform. Thus when Scalia addressed only the latter component of the pending legal contest as a justification for a stay, he indicated that his mind on the pending case was already made up. In fact, the situation was worse that. The only discernible reason that 5 justices might order such a stay is that their minds, too, were essentially made up. Reports surfaced later that Justice Kennedy had some second thoughts before actually signing onto the majority ruling 3 days later. But the deed speaks for itself. The Court had placed its resources at the disposal of the Bush campaign.

The rejection of uncounted legal votes did in fact do irreparable harm. First, it decisively harmed the career of Al Gore, Jr. who might have become the 43rd President of the United States. More importantly, the Supreme Court itself had cast now a cloud upon the legitimacy of Bush’s Presidency and upon the integrity of the Court. Ten years later the Cloud is still there. Just like the cloud over an island reveals the land below to sailors fifty miles form land, the legal cloud continues to remind us of the failure of our Court.

By placing its loyalty to Bush above its obligation for fairness, the Court majority had thus violated their judicial oaths and thus betrayed the Court and the Country. On December 12, the United States Supreme Court would justify and finalize its actions. But the deed had already been done. On December 9 a legal spear had been cast into the heart of democracy; on December 12 a legal sword would dispatch whatever life remained.

ERROR COMPOUNDED: GILDING THE SOW’S EAR

THE CONSTITUTION PERVERTED

per curium Malfeasance: The Court uses the 14th Amendment to cover the Bush strategy of delay.

“Look! The Emperor has no clothes.”

On the evening of Tuesday, December 12, 2000 the Supreme Court of the United States’ Bush v. Gore decision legally resolved the post-election contest of the Florida Presidential vote by completely ending the recount. The Court’s 5-4 decision per curium had a number of salient problems — some of them obvious to neutral observers, others which require more analysis. Some of the more important problem were noted in the 4 separate dissents. We discuss them briefly here. The first and most fundamental problem is that the majority opinions were not the thoughts of a deliberate Court explaining how it came to its decision. Rather, in the first instance the opinion was written to justify the wrongful behavior which the Court had already engaged in by prematurely stepping into the Florida election contest. The Court had taken sides and now it attempted to make their partisan behavior appear reasonable. The second problem was that the Court chose to defend its behavior by appealing to the 14th Amendment. Essentially the Court majority acted as though it believed that Bush had already won the election — otherwise, they might have considered that the interests of Al Gore, Jr. were as worthy of diligent respect as the interests of George W. Bush. A college essay purportedly written to describe a two party conflict so blatantly chary in even considering the interests of one party would receive a D or an F. Left out entirely were the rights of those 50,000,000 Gore voters who had followed instructions and who — if all their votes had been properly counted — would have been happy with the election. Left out, too, was the nation itself. To make matters worse the Court used the 14th Amendment, the very Amendment intended to help undo the curse of slavery, as the pretext for denying the “equal protection” of the law to a class of citizens which included a disproportionately large number of Afro-Americans.

To be sure, the Court majority looked at the uneven standards which were applied in different counties and found this troubling. So did two of the dissenters, Souter and Breyer; so, too, did I at the time as an interested Florida citizen. But the Court overlooked the fact that the Bush campaign had already rejected a full state manual recount and had already helped to poison the pertinent public discourse so that any alteration of common procedures to meet uncommon problems were challenged as “making new law.” Representing Gore, David Boies in oral arguments and briefs with both the state and Federal Supreme Courts had simple argued in effect, ‘As a matter of law we are entitled to a recount in the counties where we have filed our contests; the Court may order whatever equable guidelines it deems appropriate.’ The practical problem, of course, is that extant election law in 2,000 provided individual discretion to individual voting officials. The situation is quite similar in many ways to the jury discretion required in courts every day. For the U. S. Supreme Court to say, “You, Florida, cannot allow such ‘variable’ standards” was, in effect, an action in writing new law to the benefit of one party to the dispute.

As if they knew they were threading on thin moral ice, the writers of the opinion did not even sign their names. And further revealing their evident unease, they even wrote that their action had no precedential value [“Our decision is limited to the present circumstances.”]. It is really too bad we do not have a Doestoevsky among our Court observers who can write about self-deception as well as legal jargon. (You can read about further instance of behavior by the 5 majority justices which would lead many an observer to question the integrity of the individual justices in the books by Bugliosi and Dershowitz as well as my own blog [Deep Autumn Flowers - “Immoral Maxim #11,” posted in June 2010].)

It is precisely because the Florida Constitution articulates principles which embody the “due process of law” and “equal protection of the laws” that the Florida Supreme Court was legally and morally required to review the widespread mechanical and procedural failures of the Florida Election equipment and their tendentious misuse by Florida state officials. Indeed, it seems that the Florida Supreme Court had been somewhat reluctant to adopt the strong methods that were needed to bring the Florida recount completely under the aegis of the Fourteenth Amendment precisely because the Florida Court did not want to appear either too partisan or too activist. In the light of history the issue now and henceforth before the American People is whether the United States Supreme Court in Bush v. Gore properly overruled the Florida Supreme Court’s decision in Gore v. Harris? And it seems quite clear to me that the Florida Supreme Court was much closer to both the Spirit and the Letter of the United States Constitution than was the United States Supreme Court when it ruled on 12 December 2000.

According to the procedures spelled out in the Twelfth Amendment — had the Florida vote remained in serious dispute until January 2000 — eventually Congress would have been called upon to resolve the dispute. Had that happened, Bush would probably have been chosen. Any results would have been fiercely argued, but the public would have seen and be able to judge the political battles for the political battles they were. Instead the Court inserted itself into the process and sullied its reputation and compromised its integrity.

“One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.”

[Stevens, dissenting in Bush v. Gore (2000)]

TRANSITION TO THE DARK SIDE

If one attempts to understand the rationale and motivation of those many politicians, lawyers, judges, commentators, and ordinary citizens who supported the Bush v. Gore decision, even a critic such as myself can construe a charitable interpretation for the Court’s actions. It is clear that many Republicans feared that politically biased Democratic officials in South Florida’s 3 most populous counties would interpret — say — enough ballots with dimpled chads as “legal votes” for Al Gore, Jr. that it would change the election results. {Leaving aside for now the other issues which factually had, properly or improperly, frustrated the intent of a much larger number of would-be Gore voters.} That fear — either measured or overblown — does not in itself legally justify the denial of effective legal redress to the Gore Legal Campaign nor does it justify the United States Supreme Court’s arrogation of powers to itself which are vested in Congress. Still, given the frailties of human beings it is not surprising that in the frenzy of the contest many — including perhaps even some in the Court majority — might have been unable to separate their judicial opinions and obligations from their political predilections. I have said enough above about why I personally am not inclined to be so reconciled to the majority opinion, but the issue is still a live issue for some persons. However, I find no reason to be so tolerant, as it were, of the Concurrence written by Rehnquist and joined by Scalia and Thomas. In their opinions, oral arguments, and other actions the three justices revealed a truly dark side of United States Supreme Court.

The Republicans in Florida and on the Bush legal team had persisted in their argument that the Florida Supreme Court — while trying to resolve the conflicts between the Florida Constitution, governing legal precedents, and narrow findings by the Florida Secretary of State, and the actual parties to the conflict — were ‘making new law’ and thus preempting the legislature’s prerogatives. Particularly, objectionable to Republican partisans were the Florida Supreme Courts establishment of new deadlines in order to reconcile conflicting implication of the various Florida statutes. That sounds fine if one adapts a rather limited and overly literal perspective. But the Florida Supreme Court was dealing both with clearly conflicting legal statutes and with procedural and mechanical irregularities which were in prima facie conflict with the provisions of the Florida Constitution. It is precisely because the Florida Constitution articulates principles which embody the “due process of law” and “equal protection of the laws” that the Florida Supreme Court was legally and morally required to review both the widespread mechanical and procedural failures of the Florida Election equipment and their tendentious misuse by Florida state officials.

In the Bush v. Gore oral arguments, both Justices Kennedy and Souter fleshed out much of this argument — and their questions essentially made it clear to many that whatever power a State legislature has, the Legislature is not a “free agent” able to act willy-nilly on its own apart (“untethered”) from the State Constitution. In the end, the four dissenting justices and both Kennedy and O'Connor explicitly rejected or simply shied away from this rather awkward argument. We now return to the tri-partie concurrence and its development under the guiding hands of Chief Justice William Rehnquist and Associate Justice Antonin Scalia.

THE CONSTITUTION OF 1987 AND OF 200O:

THE TRI-PARTIE CONCURRENCE AND THE COURT’S DARK SIDE

“The executive Power shall be vested in a President … [who] … shall … be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…”

Article II, Section 1, U.S. Constitution (1787)

“[T]he real parties in interest here, not in the legal sense but in realistic terms, are the voters… Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard.”

Florida Supreme Court, Palm Beach v. Harris (Nov 21, 2000)

“In other words, I read the Florida court's opinion as quite clearly saying, having determined what the legislative intent was, we find that our state constitution trumps that legislative intent. I don't think there is any other way to read it, and that is, that is a real problem, it seems to me, under Article II, because in fact there is no right of suffrage under, under Article II.”

Antonin Scalia, Oral Argument, Bush v. Palm Beach (Dec 1, 2000)

[This section recapitulates material from earlier sections

before directly refuting the Rehnquist concurrence.]

Because standing election law and previous court precedents in Florida and other states were so clearly permissive of election recounts, at the state level most of the strategy and tactics of the Bush legal team and their surrogates in the Florida executive branch were little more than delaying tactics void of substantive moral and legal content. However, while the various election controversies worked themselves out in Florida Courts, the Bush legal team had persistently attempted to raise Federal legal and constitutional questions which would require adjudication by Federal Courts. Their fundamental strategy was to attack the Florida Courts and especially the Florida Supreme Court as essentially ‘rewriting the law’ and/or ‘making new law.’ In particular, they argued that new deadlines imposed by the Florida Court Supreme Court were so substantial that these remedies improperly overruled the Florida Legislature’s December 12 deadline for counting of votes. Furthermore, they argued that the Florida Court, in overruling the legislature’s intent, had violated both Article II, Section 1 of the United States Constitution and the applicable Federal Law which governed these Constitutional principle’s. Furthermore, they quoted (somewhat selectively) sections of an 1892 U.S. Supreme Court decision, McPherson v. Blacker, in which had annunciated the Legislature’s “plenary” power with respect to Presidential Elections.

As we have discussed above, in the end two members of the Court majority and the four dissenters rejected this approach as inadequate for adjudicating the issues before them. However, since this approach, as we have argued above, allowed “the camel to get into the tent” it is instructive to examine these Constitutional issues per se with particular attention to some of the underlying assumptions employed by the Bush lawyers and their supporters within the Court. The possibility that the Florida Court might have improperly performed a “legislative” function was the basis for both the Supreme Court’s per curium in Bush v. Palm Beach “remand” and the Rehnquist concurrence in Bush v. Gore. I personally find this ‘Constitutional’ argument at its core not only legally inadequate, but — as I argue below — morally reprehensible.

In the Bush v. Palm Beach oral arguments of December 1, Scalia advanced his hypothesis that the United States Constitution does not support the right to vote in a Presidential election. Furthermore, he argued that the Florida Supreme Court in Palm Beach v. Harris had in some fundamental sense ‘resolved’ the legal questions before it by relying upon the Florida Constitution as the font of its authority. Now to be sure the other justices and the Gore lawyers presented interesting, even persuasive arguments that there were other ways of viewing the Florida Court’s decision. These other approaches would have also upheld the Florida Court’s decision as an instance of judicial review fully consistent with both applicable state and Federal Law. However, I believe that Scalia was essentially right in his reading of the text of the Florida Supreme Court’s decision. The Florida Supreme Court’s decision certainly suggests, eloquently at times, that the Florida Constitution is the underlying source of its authority. (In legal slang, the decision’s ‘bottom’ seems to be the Florida Constitution and its prominent emphasis upon the right to vote.) Scalia is also right, of course, in his implied reference to the original constitution of the United States written and signed in 1787. In spite of the fact that the Constitution starts with the words “We the People” there was no right of individual suffrage for most adults under our original Constitution as adopted in 1788. Women and slaves as well as most poor or unwealthy people could not vote. But here we come face to face with the harm — and arguable malevolence — of Scalia’s Rip Van Winkle principles of “Originalism.” Justice Antonin Scalia was not sitting in a Court Room of the late 18th Century governed simply by the Constitution of 1787 as amended by the first 10 amendments of 1791. Justice Scalia was asked to consider two cases brought to the U.S. Supreme Court in November and December 2000. By 2000, the Constitution possessed 27 Amendments. These Amendments included the 14th Amendment which guaranteed “due process of law” in both Federal and State jurisdictions to former slaves, their descendants, and all other citizens of the United States. Six other Amendments have either explicitly expanded the right to vote to new classes of persons [#15, #19, #23, #26 (former slaves, women, DC residents, 18 year olds] or further extended and protected those suffrage rights [ #17, #24]. Furthermore, by 2000 the country had a history of over two centuries — a history that included a Great Civil War and a martyred Wartime President — and this history, along with the 27 Amendments, informs our interpretation of our original Constitution.

Consequently, the Florida Supreme Court — consistent with the beliefs of most informed Americans — asserted that we aspire to have a government of, by, and for the people as articulated by Abraham Lincoln in the Gettysburg Address. Thus, the Florida Supreme Court understood — quite properly I would insist — that the questions before it could be properly decided by referring to the right to vote as articulated in the Florida Constitution. They instinctively understood the right to vote simply as a necessary implication of both the 14th Amendment and our subsequent history. In other words, the Florida Court was simply blind sided by the arguments of Rehnquist and Scalia that there was a potential or actual conflict between the right to vote articulated in the Florida Constitution and the controlling framework of the U. S. Constitution

As Scalia, in particular, had already made both public and private remarks diminishing the principles of the 14th Amendments prior to Bush v. Gore, it is not surprising that he and the other more conservative justices would not appreciate the perspective of the Florida Court. Scalia, in his own words, tends to view the law as a set of rules (“The rule of law as a law of rules.”) Scalia has even written in A Matter of Interpretation:

“If you want aspirations, you can read the Declaration of Independence, with its pronouncement that ‘all men are created equal’ ... There is no such philosophizing in our Constitution, which ... is a practical and pragmatic charter of government.”

With his singular disdain for broad or aspirational Constitutional principles (or, at least, with those which he doesn’t personally ascribe to). it is not surprising that Scalia has no appreciation for the underlying implications of a phrase such as “We, the People” or “due process of law.” One might as well try to describe the different colors of a grackle, a indigo bunting, and a cardinal to a color blind man.

In the main, the same troubles have plagued the careers and opinions of the three conservative justices who supported the Rehnquist concurrence and the Bush legal argument. Ideologically speaking, during his career Rehnquist tended to support the institutional prerogatives of government over individual liberties. The same has continued to be true for Scalia and Thomas. Of course, there are interesting and even, sometimes, wholesome exceptions to this generalization — all justices are individuals. But the tendency to entertain the idea that a governmental official is ‘free’ to do anything they damn well please is found not only in these two Florida cases involving Republican party hacks and ruthless partisans. In Death Penalty cases all three have persistently used legal procedures to help limit the Supreme Court’s review of these most perniciously flawed products of our legal system. Scalia has even offered the silly opinion to the effect that, well, we don’t really ‘know’ that an innocent person has actually been put to death. And, besides, he adds, as long as the jury was properly instructed — we don’t need to worry ourselves legally about any possible actual errors. In the Guantanamo cases which have come before the Court in recent years Scalia and Thomas have usually argued — in effect — that the President as Commander-in-Chief is above national, international, and human law as soon as he deals with military affairs beyond the borders of the United States.

The two books by Bugliosi (2001) and Dershowitz (2001) document some clear improprieties by the members of the Court majority. To my mind, the most serious of these improprieties — other than those intrinsic to the actual decision itself — was the fact that Justice Thomas’s wife worked for the Bush political campaign.

The judicial behavior of Justice Antonin Scalia present some special problems. As a general rule, his mode of behavior is to aggressively pursue his particular line of questions with absolutely no pretense of “false modesty.” If he thinks he has his own dog in a legal fight, he becomes in effect a prosecutor or defense attorney for one of the parties. He becomes for the favored party, as it were, an extra lawyer who just happens to be sitting on the bench. If you follow his frequent attempts to drum up support for his legal ‘philosophy,’ in his own very smug way he reveals his actual motivation. In remarks subsequent to the election he asserted that for Bush v. Gore, "The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.]" There you have it. Scalia sees one of his most important judicial decisions as fundamentally a raw exercise of power.

Legal and constitutional issues are the products of human activity, so understanding the politicians, commentators, lawyers, and judges involved in the Bush v. Gore Contest may provide us with interesting and useful insight. Still it is the work of the Court majority — the orders, stays, oral arguments, and opinions — which will remain in our country’s memory and stain our history.

There is a word for any sort of jurisprudence which adheres blindly to the “letter of the law” — the word is tyranny. In actual fact, those who claim to be “merely” interpreting the law are often the same people who bend the law to its most partisan ends. There are inherent tensions in understanding the broad implications of any important human document. The essence of principled jurisprudence is the ability to see not only the immediate issues before the Court, but to see their implications for all the actual parties to the case, both those who are inside the Court Room and those beyond. In Bush v. Gore, the Court failed to adequately address the issues presented in the case. In the Rehnquist dissent three members of the Court underlined their lack of commitment to the principles of democratic justice.

CONCLUSION: CONTINUATION WITHOUT CLOSURE

“By your deeds you shall be known.”

On the day after Bush v. Gore was decided, Vice President Al Gore announced that while he continued to disagree with the Supreme Court’s decision he would respect the decision as the law of the land and would campaign no further. On December 18, 2000 the Electoral College met. George W. Bush received 271 electoral votes to Al Gore's 266 votes. On December 22, 2000 the Florida Supreme Court completed its paper work formally with a brief statement which included the words, “… we hold appellants can be afforded no relief.” . In early January 2001, after declining to hear a challenge from black Congressional Representatives, the U.S. Senate accepted the results of the Electoral College. On January 20, 2001 George W. Bush became the 43rd President of the United States.

On September 11, 2001 nineteen young, brave, and foolish young men acting under the cover of Islam killed 2900 people in New York, Virginia, and Pennsylvania. It was not the first time nor will it be the last time that heinous and unholy murders have been committed in the name of God. However, clearly influenced by the terrors of these deeds and unduly influenced by the fears engendered by these acts, the people of the United States themselves elected George W. Bush to a second term. During his second term Bush nominated John G. Roberts and Samuel A. Alito, Jr. to serve on the Supreme Court. After approval by the Senate, they took their places on the Court replacing Rehnquist and O’Connor, respectively. Like the conservative judges who insured the election of the President who appointed them, these two justices are fundamentally cautious persons who tend to place — or even exalt — form over substance. On January 21, 2010 these two new justices joined Justices Scalia, Kennedy, and Thomas in asserting that “corporations” are entitled to many of the legal free speech ‘rights’ previously restricted to living human beings. (Citizens United v. Federal Election Commission.) These justices are part of a deep ideologically driven segment of our population which celebrates the “rights of the unborn” and the “rights of property” over the rights of the living, particularly those who are poor, homeless, uninsured, unemployed, or imprisoned.

In the final analysis, the opinions of the Court in Bush v. Gore will be judged by the substance of the rulings. In disregarding the “intent” of Florida voters they displayed their support for the intent of a candidate whose every intent was to ignore the actual will of the people. In time, fear will subside — and the deeds of November and December 2000 will come back into clearer focus. As indeed, they must — if government of the people, by the people, and for the people is to return to these United States.

A personal coda

In 1959 as a college junior I discovered to my great chagrin that the United States government was lying to the American people about its actions in Cuba, where it was providing covert support to the dictator Batista until shortly before he was overthrown by the Castro-led forces. [Of course, since then the Castro regime has added its own excesses to the annals of history.] Energized and young, I spent much of the next decade involved in the Movements for Peace and Freedom. Eventually, however I returned to school and eventually ended up teaching college astronomy before I retired in 2005. Before I retired, however, I had the ‘privilege’ as a South Florida citizen to view the post-election Presidential contest of 2000 from a ring side seat. I was deeply shaken because I realized that some of the darker angels of my native land were looming yet again. Democracy, of course, is not a given — it is a process which we can enhance or resist. Unlike many of those who prate about liberty while defending their partisan privileges, it is clear to me that a nation without justice and equality is not a free people. Now that I am retired I lack the energy of my youth, but I can at least add my 6 pence to the continuing struggle for democratic justice.

Lon Clay Hill, Jr.

Miramar, Florida

12 December 2010

Bush v. Gore: Brief Review of the Literature

Many books and articles about the recount controversy were written during late 2000 and 2001. Very informative in reporting the actual problems of the election recount and in uncovering competing political and legal responses were the books by Merzer (2001), Tapper (2000), Toobin (2001) and Zelden (2008). Toobin, a legal analyst, lays out the competing legal strategies of both camps. The book by Dionne & Kristol (2001) provides perhaps the most civil and even handed representation of the public debate during the extended contest. The book contains the main court opinions plus an extensive and representative selection of newspaper and magazine articles from both sides during the late 2000 controversy. The book by Rakove (2001), a collection of 6 essays written a few months after the election contest, presents a more learned discussion of the underlying issues. The books by Bugliosi (2001) and Dershowitz (2001) present the most salient moral and legal problematics of the Court’s decision. The book by Sammon (2000) focuses on some questionable acts by the Gore campaign, but much of it is tangential to the actual legal contest. Sad to say, the much later book by Zelden (2008), also titled Bush v. Gore, demonstrates that the structural problems and inequities revealed during the election have not been resolved. There is, of course, no question that how one views the ever-present tension between the letter of the law and the demands of democratic justice color our views of this controversy. Posner’s books provided a well argued and learned defenses of the Court decision and, especially, of the concurrence written by Rehnquist and supported by Scalia and Thomas.

Dworkin’s book is not per se about Bush v. Gore. I have included the reference because Dworkin’s work addresses the issue of whether and how our laws implement the values we profess to embrace. He also has a very expansive view of "equality under the law."

The U.S. Supreme Court’s website has the most complete repository of the Court’s recent decisions and is essential for detailed work on recent Supreme Court cases. However, it has not yet extended its full records much beyond the last two decades. I find the Find Law website easier to use and it also allows one to reach back more than a century for many important cases. The Oyez website has excellent oral arguments with which display synchronous and corrected transcripts. This septuagenarian, however, has only rudimentary web searching skills.

In June 2010 I posted an extensive, very critical review of the judicial work of Antonin Scalia entitled “Immoral Maxims of An Unjust Judge.” That Blog, entitled “Deep Autumn Flowers” [deepautumnflowers@blogspot.com] also addresses some issues of the Bush v. Gore decision.

Bush v. Gore: Selected Bibliography

Boies, David (2004). Courting Justice: FROM NY Yankees v. Major League Baseball TO: Bush v. Gore 1997-2000. Miramax Books: New York. 490 pages.

Bugliosi, Vincent (2001). The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose our President. Thunder’s Mouth Press: New York. 166 pages.

Dershowitz, Alan M. (2001). Supreme Injustice. Oxford Univ. Press: New York. 275 pages.

Dionne, E. J. & Kristol, William, Editors (2001). Bush v. Gore: The Court Cases and the Commentary. Brookings Institution Press: Washington D. C.. 345 pages.

Dworkin, R. M.(2006). Is democracy possible here?: Principles for a new political debate. Princeton University Press: Princeton, NJ.

Merzer, Martin (2001). The Miami Herald Report: Democracy Held Hostage. St. Martin’s Press: New York. 302 pages.

Posner, Richard A. (2001). Breaking the Deadlock. Princeton Univ. Press: Princeton. 266 pages.

Rakove, Jack N. (2001). The Unfinished Election of 2000. Basic Books: New York. 266 pages.

Sammon, Bill (2001). At Any Cost: How Al Gore Tried to Steal the Election. Regnery Publishing Inc.: Washington, DC. 294 pages.

Scalia, Antonin (1997). A Matter of Interpretation: Federal Courts and the Law. [Amy Gutmann, Editor]. Princeton University Press: Princeton, NJ. 159 pages.

Tapper, Jake (2001). Down and Dirty: The Plot to Steal the Presidency. Little Brown and Company: Boston. 514 pages.

Toobin, Jeffrey (2001). Too Close to Call. Random House: New York. 297 pages.

Zelden, Charles L. (2008). Bush v. Gore: Exposing the Hidden Crisis in American Democracy. University Press of Kansas: Lawrence, Kansas. 390 pages.

Bush v. Gore : Most Important Cases

U. S. SUPREME COURT

Bush v. Gore, 531 U.S. 98 (2000) [5-4; Dec 12, 2000]

Bush v. Palm Beach Canvassing Board, 531 U.S. 70 (2000) [Dec 4, 2000]

[or, “Bush v. Palm Beach”]

McPherson v. Blacker, 146 U.S. 1 (1892)

FLORIDA SUPREME COURT

Boardman v. Esteva, 323 So 2d,259 (Fla 1975).

Gore v. Harris [4-3; December 8, 2000]

Palm Beach Canvassing Board v. Harris [7-0; Nov 21, 2000]

Palm Beach Canvassing Board v. Harris Remand [Dec 11, 2000]

State v. City of Stuart, 97 Fla. 69, 120 So. 335 (Fla 1929).

SPELLING NOTES

[sic] The attentive reader will notice that the author practices spelling reform - particularly with respect to the Germanic gutturals (“gh”) which have not been pronounced in most English speaking lands since the millennium of the Venerable Bead, the author of Beowulf, and Alfred the Great. Any other spelling errors are, of course, — spelling errors.

Henry Clay: The Essential American (reviewed)

Henry Clay: The Essential American
David S. & Jeanne T. Heidler

David S. & Jeanne T. Heidler (2010). Henry Clay: The Essential American. Random House: New York. 595 pages.

This book covers the entire life of Henry Clay (1777-1852), best known perhaps as the “Great Compromiser” for his role in shaping the Missouri Compromise of 1820 and the later Compromise of 1850 that allowed California and Texas into the union as a free state and slave state, respectively. Both compromises attempted to meet some of the salient issues of the North-South conflicts with measures that partially reconciled thru compromise some of the most salient bones of contention between the slave-holding South and the more industrialized North. The book gives ample attention to Clay’s role as first a U.S. Representative and later a Senator — and his three unsuccessful attempts to become President of these United States (1832, 1840, 1848). His relationships with the Presidents during his career from Madison to Filmore are treated with some care — especially his interactions with John Quincy Adams, Martin Van Buren, and Andrew Jackson. The book is quite naturally focused on trying to understand events as they were experienced by Clay — but the authors attempt to be fair to Clay and his friends and enemies. Andrew Jackson does not come out very well — but that is probably because Jackson’s undying enmity towards Clay [primarily a result of Clay’s role in electing John Quincy Adams in the election of 1824] probably represented Jackson’s greatest personal weaknesses. As portrayed in the book Jackson could not forgive a slight or a wrong real or imagined. Clay’s relationships with the other members of the Great Triumvirate (Daniel Webster and John Calhoun) are also given a good deal of attention. In sum, it is a book which is both a history of Henry Clay of Kentucky and a history of the United States from approximately 1810-1850. In other words, it is a history of the United States in the four decades before the terrible scourge of history brought on a decade a conflict and then our great Civil War.

But there is something else which makes this an unusual history book. For the Heidlers’ book is not merely a political history. Thru out the book the authors attempt to provide some insight into Clay’s personal history. Continual allusions to Clay’s interactions with every one he meets — political contemporaries (rivals & comrades), friends, family, slaves and strangers all get their due. One theme, of course, is his family life. Married for 52 years, he and his wife had 11 children — but they outlived most of the children. Only one of the 5 girls survived until adulthood - and she then died in childbirth. Tho he lived to be 74, Clay’s health was not always very good. Indeed, it appears that he eventually died of tuberculosis — called ‘consumption’ in those days as his last several years were increasingly marked by his coughing and, especially towards the end, his loss of weight. While not written with the flair of a novel — the authors are working from the incomplete record of letters an diaries and do not ‘fill in the details — the book manages to provide a moving portrait of the man as he lived with his successes and failures, joys and pains.

For me, personally, however, probably the most important theme of the book is its portrayal of Clay’s relationship with slavery — more precisely his conflicted and complicated relationships with actual slaves. Clay was a slaveholder. Furthermore, while as a young man he made some strong statements about the slave trade — once he became involved in politics, his criticism of slavery was always tempered. He did believe that slavery was immoral and would not last and he remained adamantly opposed to Southern talk of nullification secession, but he essentially viewed slavery as the bargain the country had made. He also opposed the abolitionists on a number of issues. Indeed, Clay’s views in many ways were similar to Abraham Lincoln’s before the Civil War [Lincoln’s views of the ‘Africans within our midst’ evolved during the Civil War, perhaps especially due to his interactions with Frederick Douglass as well as the exigencies of war]. For several decades Clay was a supporter of returning slaves to Africa — proposing several times that slaveowners might be bought out. He presumably was involved personally in several slave purchases — but it appears that most of the slaves in his household had been inherited or were a consequence of marriages. Some other aspects of Clay’s activities include the following. One, he sometimes bought separated family members so that they were united with slave relatives in the Clay household. Two, he freed several slaves on different occasions and in his will (several times with accompanying financial gifts or wages). And, finally, he was remarkably indifferent to the problems of runaway slaves - he simply was not interested in pursuing them. There is one instance of sending some money to a runaway slave who decided to return, but it appears that once a slave ‘upped the ante’ to the point of running away — Clay did not seem constitutionally disposed to follow the issue much further. In sum, while the evidence presented by the authors make it quite clear that Clay consciously had accepted the country's bargain with the peculiar institution — it is clear that the bargain ate at him in conscious and unconscious ways.

* * * *
Of course, with the benefit of hindsight it is not too difficult for us to see that Clay’s valiant but vain attempts to stich up the discordant forces unleashed by slavery would be unavailing. Still, I found the Heidlers’ treatment illuminating. It is not really useful or intellectually honest to try to read too much into how others ‘should have done’ in a situation which is so very different from the moral environment and climate of a current historian or current reader. The Heidler’s treatment seems to reach a defensible balance between our need to know about the past and our need to remember that even tho relevant, the past was different in significant ways. To me it is quite clear that the legacy of slavery still effects us [seen perhaps most clearly in our prison system], but neither the present nor the past are morally simple.

In ending I switch to a different theme. It would be interesting if we could come back a few decades from now and see how our descendants view the terrible disparities in health care which caracterize these United States of the early 21st Century.

Are Human Beings 'Spiritual' Creatures?

What Does it Mean to Say that Human Beings are ‘Spiritual’ Animals?

Lon Clay Hill, Jr.
Miramar, FL, USA

Preliminaries for a discussion on words, canons, belief, faith, and hypocrisy in both politics and religion. In coming months the author hopes to develop a number of thoughts in postings on this blog. This particular post is more of an attempt to describe his own assumptions than an argument with those who do not share those assumptions.


Are Human Beings ‘Spiritual’ Animals?

The question above is, for many people, a matter for serious debate. I have participated and, occasionally, still do participate in such discussions and or debates about this issue. However, I usually prefer to discuss another issue and I do so here, namely:

What is it about Human Beings that, for me, — inescapably — requires that I employ the term ‘Spiritual’ Animal?


Homo sapiens, a talking and spiritual animal or creature!

Human beings have several important characteristics which differentiate then from most living animals on the earth. To my way of thinking, the following list of chacterisitics seem particularly salient, to wit:

(1) Human beings cover their nakedness
(2) Human beings have opposable thumbs that have apparently made it easier for them to use tools than all or almost all known animals
(3) Human beings have special larynx muscles that have apparently made it easier for them to speak than all or almost all known animals
(4) Human beings have brains that enable them to make creative use of both tools and speech
(5) Human beings bury their dead
(6) Human beings have thoughts, opinions, and beliefs that transcend both their immediate and experienced physical, temporal, cultural, and intellectual environments.

The author makes no claim that these characteristics are the most important characteristics which define our species. Nor does the author claim that any of these characteristics are unique to humans — our knowledge of the internal mental characteristics of other terrestrial creatures is quite limited. We do know that chimpanzees make a few tools, that birds create songs beautiful to our ears, that dolphins and whales use complex audio signals that are analogous to both speech and song, and that elephants often guard their dead for several days. Beyond the earth, of course, we do not know whether intelligent extra-terrestrial life is either frequent or non-existent.

What I do assert is that the above list suggests that members of the species homo sapiens can be usefully described as talking, spiritual animals. In this context the word “spiritual” does not imply any particular religion. What I mean here is that the facts suggest that humans are - at least sometimes - seriously concerned with mental and emotional concerns and commitments that transcend our every day existence. Indeed, my use of the word spiritual here can be better understood by the German word “geistlich”. Spiritual - as I define it here - has to do with human beings’ abilities to construct elaborate artistic, societal, literary, mathematical, political, and other intellectual or mental structures. While it is true that I believe that religious impulses and thoughts can also be usefully described as “spiritual” activities, the word as I use it here can also be used without compromise by pantheists, deists, and some atheists. The principal intellectual opponents of humans as spiritual creatures as defined here would be (1) logical positivists who believe that all thoughts are epiphenomena of material processes, (2) some Darwinian evolutionists who believe that all biological phenomena are products of blind and random events, and -of course - (3) any cynics who would assert that all phenomena and thoughts are void of genuine meaning.

For now, at least, I do not wish to argue these issues in depth. Rather, I wish simply to emphasize that we humans possess some rather complex interior mental and emotional states and commitments and that I shall refer to this deep interior complex as our spiritual life. [Some readers might be more comfortable with terms such as “psychological states”. However, such terminology is too restricted in its implications for me just. Of course, some religious uses of the term spirit are too narrow in their implications for some readers.] With all of these caveats, I may have gotten away from my central corollary — speech is central to much of our spiritual and mental life and words are the most prominent and indispensable constituents of our intellectual traditions which reach back into history. (The interplay between word and images is, of course, undergoing a radical transformation today, but - for now - we can contemplate an indefinite future in which words as words are still absolutely essential for communication.)

With these considerations and stipulations in the background, I hope to address some more contentious political and religious issues in future blogs.

LCHj - 14 October 2010

Spiritual Intersections: Nietzsche’s Aphorisms and Jesus’s Words

Spiritual Intersections: Nietzsche’s Aphorisms, Jesus’s Words, Related Quotations — plus Commentary
{An Annotated Nietzschean Breviary with Afterword, References, and Aphorism List at end}

Lon Clay Hill, Jr.

“For the children of this world are in their generation wiser than the children of light.” (Attributed to Jesus of Nazareth, Luke 16:18)

TWELVE QUERIES

Twelve Queries with Annotated Aphorisms and Sayings by Friedrich Wilhelm Nietzsche and others p. 7
I. What is man and what is he becoming?? p. 7
II. What is the connection between nature and spirit?? p. 10
III. Who is the noble man and what is love?? p. 12
IV. Who is the overman and how is one true to the earth?? p. 13
V. What is truth and what is error (philosophical focus)?? p. 16
VI. What is truth and what is faith (existential focus)?? p. 18
VII. Faith and hypocrisy. p. 21
VIII. The reality and/or unreality of God?? p. 23
IX. Who was Jesus (Ecce Homo-I)?? p. 25
X. What is Christianity (from Paul forward)?? p. 27
XI. When does it end? [Eternity, Salvation] p. 28
XI-Sup. Does it end in Fire? [The Hell fire] p. 31
XII. Who was Nietzsche (Ecce Homo-II)?? p. 35



Twelve Queries with Annotated Aphorisms and Sayings
by Friedrich Wilhelm Nietzsche and others

I, who cannot fly, must reach the distant mountains!!

QUERY I. What is man and what is he becoming??

#1a “I teach you the overman. Man is something that shall be overcome... (Thus Spoke Zarathustra, Prologue, part 3).

#Ib “Man is a rope, tied between the beast and the overman — a rope over an abyss.” (Zarathustra, Prologue, section 4)

In Thus Spoke Zarathustra Nietzsche declared that each individual should strive to become an overman (Übermensch) — a person who continually strives to reach beyond himself. Nietzsche believed that humans are an essentially unfinished product. We cannot be understood and do not live apart from the stars we reach for — nor, for that matter, can we be understood or live apart from the simple ocean life from which we have evolved. As the Psalmist says, God has made man a “little lower than the angels.”1

#Ic “Life must overcome itself again and again.” [Zarathustra, II, On The Tarantulas.]

Nietzsche constantly refers to the human need to continually strive for improvement and self-transcendence. Indeed, Nietzsche seems to see the self as a self which is to be improved just as a mountain climber seeks to climb higher and higher mountains and an astronaut would want us to explore more and more distant planets. Now to be clear, Nietzsche himself would object to the term of ‘improving’ the self because of various moralistic and epistemological overtones. Nietzsche would rather say that ‘one should become who one is’ or speak approvingly of a ‘higher’ or ‘more noble’ man. Still, at some level, Nietzsche presents an existential demand that one should continually strive to become who one really is, i.e. one should improve or perfect oneself. In other words, even as Jesus said, “Be ye therefore perfect, even as your Father which in heaven is perfect”, Nietzsche is saying that human should continually be perfecting themselves.

#Id “But it is with Man as it is with the tree. The more he aspires to the height and the light, the more strongly do his roots strive earthward, downward, into the dark, the deep — into evil.” (Zarathustra, part I, On the Tree on the Mountainside)

No facile progressivism here. With every opportunity for progress there is a concomitant temptation. Important and breathtaking inventions and discoveries such as the printing press, the structure of the atom, and the helical structure of DNA are rife with potential mishaps and hubris that humans almost invariably explore until ‘wisdom comes to by the awful grace of God.’ The beginnings of religious freedom with genuine toleration were preceded by two centuries of religious wars. Even today, religious and ideological freedom are still precariously honored in most of the world. We shall see what comes of our still new knowledge about the atom and DNA.

#Ie. “You should love peace as a means to new wars—and the short peace more than the long.” (Zarathustra, I, On War and Warriors.)

One could read this as a simple piece of militaristic rhetoric. And indeed Nietzsche’s comments on war are sometimes rather adolescent and shallow — if not immoral. However, it is usually more fruitful and more accurate to see it and similar passages as expressing an exuberant acknowledgement that humans make more progress in striving towards objectives than by passively accepting a stagnant status quo. Most Christians do not believe that songs such as “Onward Christian Soldiers” or “A Mighty Fortress is Our God” are calls to arms. Of course, Christians have had their ‘fair share’ of militaristic adventures, some of them in the name of God and religion, but they are not unique in this. Currently, a number of Arab terrorists have called their own unholy terrorist deeds expressions of a “Jihad.” However, other Muslims think of a jihad as primarily a spiritual struggle, a struggle which explicitly rejects the murder of innocents for any goal.

To be sure, in the book of Matthew Jesus enjoins his listeners to “Love your enemies and pray for your persecutors” [Matthew 5:44]. However, only a few chapters later we find:

“You must not think I have come to bring peace on earth; I have not come to bring not peace, but a sword. I have come to set a man against his father, a daughter against her mother, a son’s wife against her mother-in-law; and a man will find his enemies under his own roof” [Matthew 10:34-36].
Similar passages are found in Luke, Chapter 12. In the non-canonical Gospel of Thomas we even find the following:

“Jesus said: I have cast fire upon the world, and look, I’m guarding it until it blazes” [Thomas #10 , Five Gospels.]

There is no question that some metaphors are more appropriate than others, but it simply cannot be gainsaid that a universal consensus is that ethical, moral, psychological, personal and/or religious progress invariably contains an admixture of personal struggle. Both Jesus and Nietzsche constantly emphasized this essential component of the spiritual life.

Query II: What is the connection between nature and spirit??

#2a. Spirit is the life that itself cuts into life: with its own agony it increases its own knowledge. [Zarathustra, II, On the Famous Wise Men.]

“Geist ist das leben, das selber ins Leben schneidet; an de eignen Qual mehrt es das eigne Wissen.” (Z, II, Von den berühmten Weisen.)

Any serious contemplation of both human life and life in general must confront the problem of pain — we were born screaming as we came into this world and as we were being born most of our mothers experienced approximately as much pain as humans can endure in a single dosage. Those of us who eat meat continue to live partially because other we wrest life from other forms of painfully reluctant life. Even the vegetarian is here today only because countless ancestral fish, reptiles, and mammals did kill and consume living and conscious prey. Humans, of course, experience additional pain and suffering because other humans often and invariably stray from the milk of human kindness that we sometimes experience. Modern warfare and conflict with atomic bombs, genocide, public execution and secret torture are all too frequent reminders that as Job put it:

“Man is born to trouble as the sparks fly upward.”

It is sometimes true that perpetrators of evil sometimes ‘pay’ for their misdeeds. Yes, it is sometimes true that:

“Those who live by the sword die by the sword.”

But is also true that many of those who suffer, whether from nature or from man, are essentially innocent with respect to the deeds that mark their lives.

Indeed, nature itself is very problematic for those who would look for some dominant gentleness in the essential order of things. There are those, of course, who would justify the ways of God or the cruelty of evolution. However, I believe that—in terms of trying to understand suffering as part of ‘The Big Picture’ — the religious person has no magic words to explain the inexplicable and seemingly arbitrary dispensations of pain in the world we behold. For me, the words from William Blake’s poem The Tyger run true:

“Tyger! Tyger! burning bright
In the forest of the night,
What immortal hand or eye
Could frame thy fearful symmetry
...
What the hammer? what the chain?
In what furnace was thy brain?
What the anvil? what dread grasp?
Dare its deadly terrors clasp?
...
Did he smile his work to see?
Did he who made the Lamb make thee?”
Songs of Experience (1794)

All of us can and do attempt to make personal sense or even to make more general philosophical and/or religious sense of life’s pain, sorrow, and suffering. Be that as it may, none of us can stand outside our biological-and-spiritual station for we are embedded within a process that contains pain and struggle as well as joy at its very Heart.


Query III: Who is the noble man and what is love??

One reason that Nietzsche called himself an ‘immoralist’ is that - as he put it - all creators are called ‘immoral’ by both the many and the leaders. After all, Jesus was crucified as a common criminal. To be sure, sure Nietzsche sometimes takes a perverse pride in being misunderstood, but he still says much that can enlighten us all. Some of his statements about love are Biblical in tone and need little by way of explanation.

#3a Whatever is done from love occurs beyond good and evil. (Beyond Good and Evil, part 4, epigrams and interludes, #153)

#3b Jesus said to his Jews: “The law was for servants—love God as I love him, as his son! What are morals to us sons of God!” (Beyond Good and Evil, part 4, #184)

Paul says that “the written law condemns to death, but the spirit gives life.” (2nd Corinthians 3:6) Jesus, of course, reserved his sharpest criticism not for the ‘sinners’ (those who more or less knew they were miserable), but for the hypocrites — those who insisted upon their own goodness and paraded their ‘virtues’ before others. Today, in my own country of the United State, some of those who call themselves religious are among the strongest defenders of the death penalty and of American imperialism. Among the most prominent of these ‘leaders’ (e.g. the most dangerous) are those who never raise their voices or show any other ‘untoward’ emotion in public .

#3c That which doesn’t destroy or kill me, makes me stronger. (Twilight of the Idols, I, 4)

“Was mich nicht umbringt, macht mich stärker.” (GD, I, 4.)

Nietzsche asserts here and elsewhere that any non-fatal experience presents an opportunity for growth. Similarly, Shakespeare wrote “Out of this thistle, danger, we pluck this flower, safety.” And, of course, religious authors sometimes testify to growth emerging out of the most terrible experiences of both war and/or personal tragedies. Saying that one will profit from any experience, of course, is not the same as actually managing to consistently do it. However, it is a useful pespective to keep in mind as we all experience non-trivial problems.


Query IV: Who is the overman and how is one true to the earth??

“Earth is just a stopping place; Heaven is my home.”
[from a Christian Hymn.]

#4a “Behold, I teach you the overman. The overman is the meaning of the earth. Let your will say: the overman shall be the meaning of the earth! I beseech you, my brothers, remain faithful to the earth, and do not believe those who speak to you of otherworldly hopes.” (Thus Spoke Zarathustra, Prologue, part 3).

According to Nietzsche religion has taken our eyes away from the world we live in and away from our actual lives. In Nietzsche’s view the noble soul or the truly ethical person should consecrate the the earth. Now it is quite true that in the book of Genesis the Lord looks at Creation and says, “This is Good!!” However, it is also true that many ‘believers’ tolerate wars, environmental degradation, and injustice in the name of God. Today [early 21st Century] countless self-described ‘Christians’ and ‘believers’ ignore global warming, beglut themselves on fossil fuels, defend fool’s science, and in countless ways use their ‘faith’ as blinders to ignore the reality of the [created] world.

A text which embodies some Christian themes which Nietzsche criticises is found in 1st John, Chapter 2:

“Do not love the world or the things in this world. The love of God is not to those who love the world: for all that is in the world—the desire of the flesh, the desire of the eye, the pride in riches—comes not from the Father but from the world. And the world and its desire are passing the way, but those who do the will of God despise the world.” [1 John 2: 15-17]

This is sometimes read as a passage which simply despises the world and universe as an inconsequential place to be. In this perspective Christians should ‘wait upon the Lord’ and they will be rewarded in Heaven. Some criticise and ridicule such beliefs as the hope for “Pie in the Sky.’ Before evaluating this critique, let us look at a slitely different translation found in The New English Bible [NEB].

“Do not set your hearts on the godless world or anything in it. Anyone who loves the world is a stranger to the Father’s love: Everything the world affords, all that panders to the appetites, or entices the eye, all the glamour of its life, springs not from the Father but from the godless world. And the world is passing away with all of its allurements, but he who does God’s will stands for evermore.” [1 John 2: 15-17 {NEB}]

With the second translation it is perhaps easier to translate the text as being a relative simple injunction not to overevaluate the ‘things’ of this world as any merely physical or societal pleasure is doomed to be short-lived in any truly long term approach, e.g., when we consider periods significantly longer than a human lifetime. For this reading to be valid, however, we would have to read the phrase ‘love the world’ as meaning, sensu strictu, as ‘loving covetously [e.g., ‘overloving’] our human pleasures with more passion than they merit.’

Cosmically speaking, any lasting validity for our lives, pleasures, and efforts in themselves is nonsense. For me literature is the best point of departure for thoughtful discussion of such themes. In the book of Ecclesiastes it is written:

“Vanity of Vanities... There is no new thing under the sun.”

In Shakespeare’s MacBeth King MacBeth declares:

“Life is a tale, told by an idiot, full of sound and fury, signifying nothing.”

Such passages remind us that our lives and all their fortunes and pleasures are painfully short. One does not need to be able to read and write to recognize this. This briefness is a primary existential datum for human beings true virtually independent of our own metaphysical, religious or philosophical perspectives. The pertinent question is: What do we do and what do we make of this short, but very dear life of ours? So, for myself, I would read the passage from 1st John as exhorting us to aspire to see and live our lives sub species aeternitas. Others are free, of course, to read the text differently. However, I would like to suggest that the spirit with which one reads a text -especially, a religious text- is as important a spiritual matter as the text itself. In any case, there is no necessity for anyone to defame or desecrate the earth. Whether one believes in the finality of death, the transmigration of souls, the resurrection of the dead, or eternal recurrence are separate issues.

To make sure I am not misunderstood let me add the following. If I and other Christians or other believers do not honor our present obligations on this earth, it is clear to me that the secular citizens who do respect the natural world will ‘be more pleasing in God’s eye’ than those believers who prefer to speculate about ‘The Hereafter’ while failing to tend to their Here-and-Now responsibilities.


#5&6. Truth is the lie which serves us best!

The above sentence, as far as I can determine, was never written by Nietszche, but it fairly paraphrases — I believe — a Nietzschean leit motif. There are two related, but distinguishable thoughts contained within this single sentence. One, all human ‘truths’ about the world are necessarily incomplete and in the final analysis false. In less antagonistic terminology, all human truths are approximations and, at the very least, not quite true. Two, all or almost all proclamations about religious and phlosophical ‘truths’ have been and continue to be false— usually demonstrably and/or harmfully and/or hypocritically and/or crudely false. And, furthermore, according to Nietzsche, this is particularly true of Christianity. We shall examine these two themes separately. The first theme is primarily an epistemological or philosophical theme with somewhat indirect religious implications; the second theme is primarily a historical argument with utterly obvious religious implications.

Query V. What is truth and what is Error?

#5a. “Every word is a preconceived judgment.”
#5b. “What are mankind’s truths. They are the irrefutable errors of man.” [Gay Science, #265]

Nietzsche believed that all ideas and even the very words which we use to describe the world are simplifications which contain inevitable and inextricable errors. This idea is not new. Approximately 2,500 years ago the greek philosopher Heraclitus of Epheseus is recorded as saying “We cannot step twice in the same river.” And, of course, whether we are speaking of inorganic entitities such as rocks, rivers, and stars or living things such as apples and people everything in the universe changes. Indeed, everything is always and inevitably changing eventually into something distinctly different from what it was either moments or eons before. And, it is not merely that things change in time. We can also use a single word to describe different entities in space—apples or stars or individuals, even identical twins. However, these different entities, too, are always different at some level. This is, of course, not in itself a particularly novel or threatening idea. But Nietzsche develops some interesting implications. Of course, he says, our words and ideas may describe similarities which are useful or even necessary for life. If we need to warn another human about a tiger we don’t care whether the tiger is somewhat or even significantly different from all other tigers including its identical twins. The similarities are all that immediately matters. But it is important, thinks Nietzsche, that we be honest with ourselves about the limitations of our terms and our ‘truths.’ Similarities are never identities!
Of course, we don’t just coin words and verbal ejaculations. We combine our words into sentences — complex assertions about the world. Or, in a more Nietzschean mode of description, we continually use and make hypotheses about the world. Occasionally, we are conscious of what we are doing, but most of our working hypotheses are unconscious and hidden. And this is as it should be. It is better to live with ‘error’ than to while away our lives with bootless refinements.

#5c ... and societal, philosophical, and religious myths...!!??”

Furthermore, human beings do not merely live in and describe the natural world. Human beings are social creatures dependent in complex ways upon their families, societies, religions, and nations — and it is in these socializing contexts that all of us acquire language. Both consciously and unconsciously language is used to support our social groupings and our grandest thoughts. Our societal beliefs, including our patriotic and religious, beliefs are inevitably colored by our associations and our standing within those associations, and by conscious and unconscious interests. They are, in one way or another, almost always intrinsically and inevitably both partisan and parochial.


VI. What is truth and what is faith (existential focus)??

#6a. One repays a teacher poorly if one always remains a pupil. [Zarathustra, I, On the Gift-giving Virtue.]

“Man vergilt einem Lehrer schlect, wenn man immer nur der Schüler bleibt.”
(Z, I, Von der schenkenden Tugend, part 3.)

Nietzsche believes that one’s philosophical or spiritual outlook should be — like one’s scientific ideas — continually improved and refined. Furthermore, any truly good idea has additional implications that the first person to articulate the idea would not have realized. This is counter to more common beliefs that the ‘truths’ of a religous sage or prophet are set in stone — and that a ‘faithful’ adherent cleaves to the letter of the words and beliefs of their earliest religous. I think this point is well taken. As a matter of fact religous ideas do evolve. Indeed, according to Mark, Chapter 7, Jesus initially was unwilling to heal a (non-Jewish) Samaritan woman’s child because he thought his mission was for fellow Israelites only.

However, genuine religious teachings are not, strictly speaking, merely about ideas. Indeed, religious or spiritual teachers are revered for the consistency of their character -- consistency viz-a-viz the perennial problems of humanity. The particulars of oppression, ideology, and hypocrisy are in a state of continual flux - the value of the ideas-and-example of a Jesus, Martin Luther King, Karl Marx, Thomas Paine, George Fox, Susan B. Anthony, or Mahatma Gandhi is precisely that they can be adopted to new situations.

#6b. “Faith means not wanting to know the truth!
[AC, #52.]
“Glaube” heißt Nicht-wissen-wollen, was wahr ist.

There is a widespread belief among many Christians that Christians are to be known and judged primarily by their beliefs (e.g., the Apostles Creed or similar credos). Indeed, some Christians even declare that their particular beliefs about God, Jesus, the Bible and/or the Church are necessary both to obtain eternal salvation and to avoid the hell fire of everlasting damnation. Put otherwise these Christians believe that Christians are to be judged by their beliefs - or, as they put it, ‘They will be judged by their faith’. I still remember being told in revival meetings fifty years ago that ‘I would either believe in Jesus Christ and his Word — or burn in hell!’ At my high school’s fiftieth reunion, a fellow classmate once again warned me of the same said ‘peril’ to my soul. Part of this general set of beliefs is the notion that in said ‘matters of faith’ one must frequently (even proudly) ignore reason. These beliefs are in the main contrary to the recorded teachings of Jesus on those subjects. In Matthew [chapters 7 &12] and elsewhere Jesus is recorded as saying that his followers will be known ‘by their fruits’ (e.g., their deeds). A careful reading of Jesus’s sayings suggests that he considered religous hypocrisy to be much more harmful than either doubt or unbelief. We shall consider these issues in more detail below. For now, I remark first that while we can certainly agree that Christians are identified (‘known’) by their beliefs, we can also state that Christians are judged (‘known’) by their deeds. Furthermore, to get at some of the underlying issues, it is helpful — I believe — to distinguish between belief and faith. Beliefs are primarily intellectual notions which are potentially, at least, either true or false or somewhere in between. Faith, on the other hand, is primarily about the existential stance and actions which we must make in a world and life in which we almost never have complete knowledge and information. It is quite true, to be sure, that our ‘Faith’ is mediated by our belief, but the distinction between belief and faith is absolutely critical for spiritual life. Belief is in the conscious mind; faith comes from the only partly conscious heart, our deeper self.

When the prophet Jeremiah complained that “The heart is deceitful above all things, and desperately corrupt” (Jeremiah Ch.17, v. 9) he was not complaining about the beliefs of his contemporary Israelites. From a religious perspective, believers are always at risk of idolatry (or Bibliolatry or Mariolatry...) or otherwise glorying in their own beliefs and practices. From a secular perspective, these ideological misdeeds are usually characterized as superstitious or irrational rather than as idolatrous. It is instructive, however, that even the atheist John Paul Sarte characterizes the inauthentic life as an instance of ‘bad faith’ (mauvais foi).

In sum, what we see in practice is that the identification of Christian faith with Christian beliefs is a cesspool of opportunities for bigotry, prejudice and other reactive defenses for personal weaknesses and societal iniquites. Genuine Faith is accompanied by beliefs, but it is not belief as such which produces honesty charity and unfearing love, the markers of genuine faith. Other humans are not usually fooled by hypocritical believers and it is, by definition, impossible to imagine that a living God would be so easily fooled. I believe that God fully intended that there should be people of many faiths as well as a significant number of doubters and skeptics. Heretics and atheists are here to be an offense to the self-righteous hypocrisy so common in almost all religious groups.


Query VII. Faith and hypocrisy.

Nietzsche believed that religious leaders, whether consciously or unconsciously, almost always fabricated and mislead their followers. In my own opinion, he got carried away with himself at times, but he was often prophetic in his condemnation of conventional hypocrisy and cultural shallowness. Putting it in strictly non-Nietzschean terms:

God has placed atheists, agnostics, and heretics in the world to remind all of us of the weaknesses and hypocrisies of those who think they are the only ‘true servants’ of God or Allah or Jawveh. (LCHj)

As the prophet Amos declared to the chosen people of Israel:

“Are you not like the Ethiopians to me,
O people of Israel?” says the LORD.” (Amos 9:7 {RSV}.)

According to my understanding of the Biblical message, faith is not a priviledge of favoritism—but a call to responsibility. Rewards, if any, will come in their own due time.

More to the point, we will amplify here a short portion of statements attributed to Jesus in the 23rd chapter of the Matthew:

“Alas for you, lawyers and Pharisees, hypocrites! You travel oversea and land to win one convert: and when you have won him you make him twice as fit for hell as you re yourselves” [Matthew 23:15 {NEB}]

“Alas for you, lawyers and Pharisees, hypocrites! You are like tombs covered with whitewash: they look well from outside, but they are full of dead men’s bones and all kinds of filth. So it is with you: outside you look like honest men, but inside you are brim-full of hypocrisy and crime” [Matthew 23:27-28 {NEB}]

To get the full flavor of the prophets’ condemnations of Israel and/or Jesus’s words about hypocrites it is best to consult the relevant Biblical texts. However, it seems clear to me that the prophetic message consistently calls the ‘believers and faithful’ to be faithful to their own faith — any hypocritical condemnation of non-belivers is but ‘a sounding gong or a clanging cymbal.’


#7a Insanity in something individuals is rare - but in groups, nations, and epochs it is the rule. (Beyond Good and Evil, part 4, epigrams and interludes, #156)

Humans are both most blind and most cruel when they do things for their own group — whether it is their own race, their own church, or their own nation. On making real sacrifices for their particular subset of humanity, they seem particularly blind to the outrageously narrow selfishness of their group. Just in the last decade or so, in a few hours Serbian Christians murdered 7,000 Muslim men and boys in Serbenizia, Indian Hindu mobs deliberately burned alive several hundred Muslims, and Al-Kaeda ‘Muslims’ have killed thousands of innocents in the United States, Iraq, Kenya, and elsewhere.

My own conclusion:

God fully intends for Heretics and Atheists to be a thorn in the side of religious hypocrites. [LCHj]


Query VIII. The reality and/or unreality of God??

#8a. “The Death of God”

Nietzsche’s most famous pronouncement was the parable of the the madman found in section #125 of Die Fröhiche Wissenschaft (1882). (translated as Joyful Wisdom [O. Levy] and The Gay Science [W. Kaufmann]).

The madman. Have you not heard of that madman who lit a lantern in the bright morning hours, ran to the market place, and cried incessantly, “I seek God!” As many who did not believe in God were standing around just then, he provoked much laughter. Why, did he get lost? said one. Did he lose his way like a child? said another. Or is he hiing? Is he afraid of us? Has he gone on a voyage? or emigrated? Thus they yelled and laughed. The madman jumped into their midst and perced them with his glances.
“Whither is God” he cried. “I shall tell you. We have killed him—you and I. All of us are his murders. But how have we done this? How were we able to drink up the sea? Who gave us the sponge to wipe away the entire horizon? What did we do when we unchained this earth from its sun? Whither is it moving now? Away from all suns? Are we not plunging continually? Backward, sideward, forward, in all directions? Is there any up or down left? Are we not straying as through an infinite nothing? Do we not feel the cold of empty spacce? Has it not become colder? is not night and more night coming on all the while? Must not lanterns be lit in the morning? Do we not yet hear anything of the noise of the gravediggers who are buring God? Do we not smell anything yet of God’s decomposition? Gods tooo decompose? God is dead. God remains dead. and we have killed him. How shall we, the murders of all murders, comfort ourselves? What was holiest and most powerful of all the world has yet owned has bled to death under our knives....
{The Gay Science, #125}

From my own perspective Nietzsche’s parable expresses two profound realities about contemporary Christendom. First, the beliefs and practices of many Christians are quite shallow, reflecting a religiosity propounded on Sunday which is largely divorced from everday life. Furthermore, those who do ‘apply’ their Christianity to the workplace, politics, and the secular world seem inordinately conscious of their own supposed morality. Secondly, Christianity as a live option simply does not exist for a large part of the Western world (Whether they have a different faith or have more secular beliefs). This is particularly true in many intellectual circles. I belive that the work of Dietrich Bonhoffer is particularly germane here. Bonhoffer believed that that the Christian gospel had been so mangled by Western Christendom that, for many, many souls and during the present era, at least, the question of whether one was a Christian—even for those in so-called ‘Christian’ lands—was not an important spiritual issue.
For Christians who are familiar with spiritual history there is nothing unusally new here. Centuries ago, the medieval Christian Meister Eckhart wrote about the “God beyond God”— Eckhart’s term for his belief that God’s reality was always beyond his or any other believer’s capacity to comprehend and that God’s activity procedes quite apart from and independent the ken of the ‘faithful.’
For non-Christians of any sort, this particular essay is not an attempt to persuade you of the reality of God (e.g., this is not a Chritian ‘apology’). The author is not concerned primarily with what the reader believes to be the most important ethical, philosophical or religious realities of his or her life. To be true to your own self and to be as honest with yourself as possible is, I think, a primary ethical and metaphysical standard independent of religious and metaphysical beliefs and faiths. Where that leads the reader is for the reader to discover.


Query IX. Who was Jesus (Ecce Homo-I)?

#9 In truth, there was only one Christian, and he died on the Cross.
(Antichrist, section 39)

“Im grunde gab es nur Einen Christen, und er starb am Kreuz.”


This statement always reminds me of Pascal’s statement:

“Jesus Christ will be in agony until the end of the world.”

Both statements remind us of the stark differences between the life of Jesus and his teachings as compared to the frequent spiritual mediocrity and hypocrisy of so much of Christendom. To be sure, in the statement above Nietzsche himself was not praising Jesus as much as he was damning Paul. Nietzsche thought Jesus was noble, but misguided — and thought Paul’s message was utterly contemptible. However, it is characteristic of Nietzsche's language that his language is suggestive even for those who disagree with him [In this case: me!!.]
For myself, I am content to say that for me Jesus is the primary human exemplar of how a human being should live. I also believe that the disciple’s experienced of a returning (“resurrected’) presence after Jesus’s crucifixion, the Pentecostal experience of the apostles and other early Christians, and Paul’s conversion on the road to Damascus were, in fact, revelatory experiences (i.e., I do not believe these were delusional experiences). However, I do not pretend to know how literally true one should deem the Biblical accounts of these events. The written accounts seem to have been written years and decades later— the extent to which they were either first hand, second hand or third hand accounts is unclear to me. These then are my ‘Christian’ beliefs -- their origin is mediated (1) by childhood in which gospel stories about Jesus were told and expounded in both church and school and (2) by own life experiences. If I were brought up on stories about Buddha or if I were raised on a different planet, I’m sure my beliefs about exemplars and incarnations would be different. However, I have only vague ideas about how such beliefs would be different.
The reader may have impatiently discovered that I have not given a detailed answer to the original question (‘Who was Jesus?’). I am not being particularly reticent. The point is that for the reader to answer such a question the reader needs to make his or her own inquiries. The obvious point is that one can certainly consult the Gospels. For some people this has always been and continues to be a life-changing experience. Others might also be interested in scholarship about the historical Jesus. It appears that the accounts of Jesus were not gathered into a significant corpus for several decades — and it also appears that, strictly speaking, none of these accounts is a (completely) historically literal accounts. It seems reasonable to believe that many words of Jesus’s words are faithful paraphrases - and some perhaps are literally accurate. Some of the miracle stories seem to be later additions. In particular the Gospel of John was not primarily a literal accounts, but a theological account. There, of course, continue to be accounts of ‘personal encounters’ with Christ. Needless to say, absent some personal involvement for most of us our receptivity to such accounts is colored by our own worldview.

Continuing in this vein, the Gospel of John is not a literal account of Jesus’s. While one may believe — and I do— that historical deeds are found therein, the Gospel of John is primarily a philosophical meditation on the meaning of Jesus’s life. The words which John attributes to Jesus reflect John’s own view that Jesus was the definitive incarnation of the divine will revealing knowledge need for salvation. My own view is that many of these ideas are particularly useful for Christians and are consistent with the actual meaning of Jesus’s life. But, many of the teachings attributed to Jesus were not actually spoken by Jesus - they were almost certainly written by ‘John’ or a disciple of John. I certainly do not believe that Jesus went around saying:

“I am the logos. I am the Divine Son. I and the Father are ONE. Now, stop what you are doing. Record and memorize these novel gnostic phrases — and you will live 1,0000,000,000,000,000,000,000,000,000 plus years.”

Rather, I think the authors of Mark, Luke, and Matthew got it right — Jesus was a master of parable, parabola, and cutting clarity.


Query X. What is Christianity (from Paul forward)??

As cited above, Nietzche believed that our ideas about Christianity were fundamentally the product of Paul’s interpretation of Jesus’s life—and represented a mischaracterization of both the life and teachings of Jesus. Of course, fundamental to assessing Paul’s importance is one’s perspective whether Paul’s vision of Christ on the road to Damascus was an actual or delusional event? In my own view neither traditional literal Christian accounts nor Nietzsche’s polemical account of Paul are particularly helpful. In lieu of a complete discussion, for now I would prefer to stipulate that Paul’s message does not consistently reach the standard of Jesus’s work. I personally find that Paul’s paean on the importance of love (Chapter 13 of 1 Corinthinans) one of the most important messages in the Bible and in the whole of western literature. On the other hand, some of his advice about citizenship, sexuality, and obedience are more obviously limited by the particular circumstances of his day than the more penetrating comments of Jesus himself.
The common premise of most Christians has been that the life of Jesus of Nazareth was the embodiment of how a human being should live. Most Christians also believe that after the crucifixion he appeared before his followers, enjoining them to spread the ‘gospel.’ If Christians believe that the purported “Resurrection’ is an essential component of that gospel, then I believe that unless they also incorporate the wisdom and love of Jesus into their own lives — their ‘evangelical’ messages will deserve the scorn of ‘the world.’


Query XI. When does it end? [Eternity, Salvation, Judgment...]

To anticipate the themes of this section, it is important to realize that for both Jesus and Nietzsche, the “end” is always near!! In both Jesus and Nietzsche ‘eternity’ is not so much a very, very, very long time, but an important (and usually overlooked) dimension of our existence. We begin our discussion with “The Kingdom of Heaven” — and then move on to the issues of ‘Salvation and Judgment” as well as some pernicious Christian ideas about ‘Hell.’

Nietzche emphasizes that Jesus’s Kingom of heaven is a spiritual place. Indeed, the two short quotes above cound be read as a gloss on a short passage from Luke:

#11a The Kingdom of God is in you.
(Antichrist,#29)
Das Reiches Gottes ist in euch! (AC, 29)

This is the final sentence of a psychological portrait by Nietzsche of the ‘Redeemer’ [Jesus]. Just above this sentence we find:

“What are the ‘glad tidings’? True life, eternal life, has been found— it is not promised, it is here, it is in you: as a living in love, in love without subtraction and exclusion, without regard for station. Everyone is the child of God...”
(Antichrist,#29)

#11b The Kingdom of Heaven is a condition of the heart.
(The Will to Power, II, 161)

“Das ‘Himmelreich’ is ein zustand des Herzens.” (WM, II, 161.)

Here we have the first sentence of another sketch of Jesus from The Will to Power:

“The Kingdom of Heaven is a condition of the heart (—it is said of children ‘for theirs is the Kingdom of Heaven’): Not something ‘above the earth.’ The Kingdom of God does not ‘come’ chronologically-historically, on a certain day in the calendar, something that might be one day but not the day before: it is an ‘inward change of the individual,’ something that comes at every moment and at every moment has not yet arrived—”
(The Will to Power, II, 161)

Thus Nietzche emphasizes that Jesus’s Kingom of Heaven is a spiritual place. Indeed, the two passages above cound be read as a gloss on a short passage from Luke:

”The kingdom of God cometh not with observation. Neither shall they say, Lo here! or, lo there! For, behold, the Kingdom of God is within you.”
Luke 17:20,21, KJV

If anything, Nietzche’s comments are even closer to Luther’s translation, the translation most familiar to Nietzsche:

”Das Reich Gottes kommt nicht so, dass man’s beobachten kann; man wird auch nicht sagen: Siehe, hier is es! Oder: Da is es!. Denn siehe, das Reiches Gottes ist mitten unter euch.”
Lukas 17:20-21
Suffice it to say here that the above comments by Nietzsche are not outside the bounds of contemporary scholarship.

Beyond the above remarks, there are other intriguing issues about early Christianity which are important for many interested students and observers. It seems quite clear that many of the earliest Christians thought that ‘The End of the Wolrd’ was coming soon—perhaps in their own lifetimes. Albert Schweitzer argued persuasively in his Quest for the Historical Jesus (1911) that this was probably because Jesus himself believed that a final and cataclysmic Judgment was to be expected within a few years or decades. While this opinion is not unanimous among scholars, it appears to me to be the most straightforward interpretation of the texts that we have.
Again, we have tackled some issues which are beyond our powers to resolve. Belief in a “Paradise’, ‘Heaven’ or ‘Nirvana’ is of course common thoughout the world; and doubters in any form of ‘afterlife’ are quite common as well. I was myself personally surprised when I discovered that the great theologian, Paul Tillich, had no firm belief in an afterlife. It is quite true that others besides the early Christians believe that they have had communications with the dead. Most of us, however, have not had such communications. So, I personally cannot hope to resolve such issues to the satisfaction of the averge reader. My only comment is the following:

Love is more real than death. (LCHj)

Following the discussion in Query VII, this is more a statement of ‘faith’ than of ‘belief.’ I might say more, but in truth I cannot adequately articulate the source of my stance. I can only hope that I will be faithful to its intent.


Query XIb. How does it end? [Personal reflections on the supposed Fires of Hell]

“God gave Noah the rainbow sign. No more water—but fire—next time!!"
[words from an African American ‘Spiritual’]

Most Christians believe that with the establishment of God’s Kingdom—whenever that might happen—there will be a ‘Judgment.’ Indeed, some will tell you, there will be a final and definitive judgment. Furthermore, some who call themselves Christians will provide you with detailed particular. Such interpreters of Christian belief often rely particularly upon The Apocalypse of John (or “Revelation”), the last book of the New Testament. A caveat: among those who claim to ‘believe’ in the sacred nature of the entire Christian Canon—there are those who are quite reluctant and sparing in describing, discussing, or predicitng the ‘end of days.’ So some of the beliefs and attitudes I am going to discuss below, criticize, and even condemn below are not necessarily held by Christians who are either literal and/or conservative in their beliefs.

For the purposes of my discussion, it is important to make a distinction. It is quite clear that human beings frequently suffer from the consequences of their own actions, actions which have involved their willing participation. Put somewhat crudely:

“Those who live by the sword, die by the sword.”

I use the term ‘crudely’ because there is almost never a one-to-one correspondence between actions, —good, neutral, or evil— and their consequences. Furthermore, life also presents most of us with a complex tableau of both unearned joy and unearned misery. In some cases, we may feel so terrible and guilty about particular deeds that we might experience some kind of ‘Hell on earth.’ However, in the normal scheme, one can assign only a sketchy mixture of personal, societal, or natural causation to whatever good or evil we experience. It is, I believe, a form of madness to expect anything other than partial success from this kind of (usually) speculative analysis.

In this context, many humans with religious beliefs do indeed think that there will eventually be a truly final, fair, just and definitive judgment. Many Christians believe that there is a coming ‘Kingdom of God.’ Given the diversity of human souls upon the planet, it is not surprising that issues of certainty, mercy and forgiveness incorporated into these discussions and speculations vary considerably. Some Jews and almost all atheists do not believe in an ‘afterlife’ — and by definition do not believe in a final judgment in the above sense. To an outsider such as myself, much of Islam seems to be just as judgmental as the most judgmental of Christians. However, we have all heard Muslims state that “Allah is merciful.”

Again, however, in this essay I do not wish to speculate personally about ‘God’s Coming Kingdom.” Rather, I wish to discuss the beliefs and attitudes articulated by some Christians who declare that Christianity reveals the way to obtain eternal salvation and to avoid the hell fire of everlasting damnation. Occasionally,they even declare that it reveals that their particular Christian beliefs are necessary to obtain eternal salvation and to avoid the hell fire of everlasting damnation. I believe that it is clear that several authors of the New Testament shared this belief. This belief is most notoriously present in The Apocalypse of John. This book was apparently written during a period when many early Christians faced torments, tortures, and executions as horrendous as those which faced 20th Century German Jews in Dachau and Buchenwald. These circumstances help us to understand the vindictive tone which permeates John’s message, resulting in a book which is singularly lacking in either Christian charity or non-Christian charity. Furthermore, these vengeful beliefs are in the main countrary to the recorded teachings of Jesus on those subjects and absolutely contrary to the deeper meaning of the gospel of God’s love.

The belief that God will punish sinners with a ‘Hell” of everlasting fire and ceaseless torments for their misdeeds upon this planet is not only a foolish idea unworthy of any human being — believer or no — it is a blasphemous idea rooted in the very vengefulness that genuine prophets, mystics, and teachers have always tried to lift us above and beyond. To give us a specific example: The idea that, say, Nero, Ghengis Khan, or Adolf Hitler should have to suffer a trillion, trillion years for each minute of pain that he gave to each of the victims of their reigns is but a petty and foolish fable of revenge, a fable which only moves human beings backwards and down and does nothing to lead us forward.

Let me be clear. I have no factual knowledge about life after death — if such life exists. My own faith tells me that such life is not impossible, but I know of no tablets of gold in the public market place where such information is available. I do speculate on such matters. Indeed, I sometimes speculate that each of us might experience a spiritually painful and purgative journey of purification if some ‘day’ we were to pass on to the ‘other side’ of this very brief visible life which we live and experience on the planet earth. Speculation aside, however, there is nothing Christian about dreaming up schemes of divine revenge for any other human being.

Having made my own beliefs clear, it may be instructive to look at some of the texts in the New Testament which address such issues. As the notion of ‘Hell’ is found in many places, I will first discuss some passages about love which I find most helpful to my own understanding — and then discuss a small selection of interesting of often cited passage about God’s judgment.

In the “Sermon on the Mount” we hear that Jesus taught:

“Love your enemies and pray for your persecutors; only so can you be chidren of your heavenly Father, who makes his son rise on good and bad alike, and sends the rain on the honest and dishonest.” (Matthew 5:45-46.”

Similarly, we read in Paul’s “Letter to the Romans” that:

“It was through one man [Adam] that sin entered the world, and through sin death...
But God’s act of grace is out of all proportion to Adam’s wrongdoing. For if one man brought death upon so many, its effect is vastly exceeded by the grace of God and the gift that came to so many by the grace of one man, Jesus Christ...
It follows, then , that as the issue of one misdeed was condemnation for all men, so the issue of just one act is acquital and life for all men.” [Boldface mine.] (Romans 5:12,15,18.

The clear implication of these passages is that nothing can separate us from the love of God. I add that this means that nothing that any of us— ‘believer’ or ‘nonbeliever’— do or will can permanently separate us from the love of God. If there is a Divine Judgment, we can trust that any justice or purgatory or excruciatingly painful self-knowledge is under the dominion of God’s Love.
Now to be sure, according to the Biblical texts, Jesus frequently refers to God’s Judgment — explicit references to fiery punishments and a place called ‘Gehenna’ [usually translated as ‘Hell’]. In the book of Matthew these references are particularly prominent. One of the most cited passages is the parable of the the Sheep and the Goats [Matthew 25:31-46]. While there are those who believe that Jesus believed in a literal hell fire, I think — consistent with Jesus’s frequent use of hyperbole — the parable of the Sheep and the Goats is much better understood as a condemnation of hypocrisy than as a literal description of the final judgments of God. In the parable, The righteous ‘sheep’ are surprised that they are to be rewarded while the wicked ‘goats’ are surprised that they are to be punished. The whole point of the parable is that those who were looking to prove to others and to themselves their own righteousness ignored the crucial needs of their fellow humans. Contrawise, those who tended to the crucial needs of their fellow humans were unaware that their righteousness was anything unusual or particularly praiseworthy. I personally think that Jesus was indeed a master of the layout of the human heart. However, I do not think that — while he was yet alive — that he could precisely foresee the geography of a putative postlife realm.

XII. Who was Nietzsche (Ecce Homo-II)??

“Ecce Homo!” John 19:5 [Latin Vulgate]
“Behold the Man!”John 19:5 [KJB]

In 1888 Nietzsche finished writing the polemical Der Antichrist (The Anti-Christian or The Anti-Christian) and, a few months later, the autobiographical Ecce Homo. The title of both books suggest that Nietzsche viewed himself as a worthy antagonist of Jesus of Nazareth — the man heralded as the Messiah by Christians and honored as a prophet by a number of Muslims and Jews. As the reader realizes by now, this author does not hold Nietzsche in quite such high esteem as Nietzsche’s own self-laudatory statements invited his readers to do. When all is said and done, however, Nietzsche’s life and work were infused with some ‘all-too-human’ weakness as well as some marvellous gifts and some very real, if inconsistent, personal triumphs. Walter Kaufmann’s seminal book— seminal for English readers at least — was entitled Nietzsche: Philosopher, Psychologist, Antichrist. Freud was among the first of many who have praised Nietzsche’s psychological and psychoanalytical insight. Both Martin Heidegger were among the first of a growing number who see Nietzsche as the most important philosopher since Plato. His poetry, tho limited in its total output and impossible to fully translate, is frequently recognized as splendid indeed. Knowing the moods of his poetry makes it easier for the reader to overcome some of the unconscious emotional resistance to understanding his ideas. (Knowing where someone is coming from doesn’t make his ideas correct, but it does help to understand their essential drift. Some have viewed his premonitions of the coming twentieth century catastrophic convulsions of European nationalism and militarism as being prophetic. I would say more. I think that Nietzsche is quite properly called a prophet. To be sure, at some fundamental level, Nietzsche rejected his calling — but he remains a prophet nevertheless. The reason that Nietzsche deeply influenced such recognized religious thinkers as Paul Tillich and Martin Buber and such artists as Thomas Mann is that he constantly addressed spiritual questions and issues. He has presented a medley of important ideas about language, art, and philosophy — and his work remains an important and needed challenge to those that believe that the pursuit of truth is a sine qua non for the religious life.

Our discussion may appear to have a somewhat wandering focus. In some cases, we have observed similarities between Nietzsche’s words and various Christian texts while in other cases, we have discussed differences between Nietzsche’s words and various Christian texts and ideas. In a few cases, the author has explored issues prompted by Nietszche’s work — but with minimal reference to Nietzsche’s own ideas or to traditional Christian teachings. It seems appropriate to let Nietzsche have the last word. The following passage may surprise some readers, but — as Nietzsche readers know well — when Nietzsche was not involved in the ‘heat of philosophical battles’ he would make some unexpected ‘concessions’.

#12. “How we too are still pious”

“...But you will have gathered what I am driving at, namely tht it is still a metaphysical faith upon which our faith in science rests—that even we seekers after knowledge today, we godless anti-metaphysicians still take our fire, too, from the flames lit by a faith that is thousands of years old, that Christian faith which was also the faith of Plato, that God is truth, that truth is divine...”
[Gay Science, #344]

Personal Afterword

At home in 1958 after having completed my first year of college, I chanced to find - among the books that once had belonged to my great grandfather - a small Everyman’s Library book entitled Thus Spoke Zarathustra written by one Friedrich Wilhelm Nietzsche in the early 1880’s. I soon became enthralled by Nietzsche’s strange new ideas about the “Death of God” and the atheistic injunctions to “Be true to the Earth!” promulgated by the prophet Zarathustra in a pithy aphoristic, almost Biblical style. A couple of weeks later weeks later I bought a Modern Library book with five works by Nietzsche. Over the next six years, especially, I read as much as I could read by Nietzsche - several books in translations from the early 1900’s by Oscar Levy, plus a few books in new translations by Walter Kaufmann. I even made some beginning efforts to read Nietzsche in German. During this time Walter Kaufmann’s writings about Nietzsche were also quite helpful in helping me to assimilate Nietzsche’s central ideas from the heady mix of language, ideas, and striking (and sometimes reckless) hyperbole which characterize Nietzsche’s writings. During the next four decades of my life I have read a considerable number of books by and about Nietzsche, but not usually with the same intensity and preoccupation.

During that same 1958 summer, however, only a few weeks after discovering Nietzsche I had a very powerful event in which I experienced the overpowering presence of What-or-Whom I could and can only call ‘God.’ As far as I can tell similar experiences have lead others to speak of “Jawveh’, ‘Allah’, ‘Zeus’, ‘I-am-that-I-am’, esse ipsum, and other such terms. This experience ended my own brief couple of years of ‘disbelief’ or ‘atheism.’ While hopefully my experience may have helped me to be a better person than I might otherwise have been, I want to stipulate ab initio that it did not make me a “good person” and especially not a “good person better than others who do not share my beliefs.” Beyond the mostly personal issues, however, my own life experiences and my philosophical, theological, and historical study have also shown me that some of the greatest evils in human history have been committed in the name of ‘God,’ ‘Jawveh,’ and ‘Allah.’ In countless instances these and other such terms referring to an Almighty Deity have been but words used to camouflage crimes and hypocrisy.

Furthermore, during those years and and in subsequent decades it has seemed to me that, some of the most telling and truthful criticisms of religious hypocrisy in Western Civilization — particularly in the last two centuries — has come from skeptics and atheists. One can list many examples of important secular critics of religious practice, but near the top of any list would be Friedrich Wilhelm Nietzsche. So, by the early 1960’s I began to conceive that eventually I might write a book or more addressing the theme of what serious Christian believers could learn from some of Christianity’s most severe critics such as Nietzsche. I would, I thought, personally explore some of the implications of the theologian Karl Barth’s statement to the effect that:

“It was the church and not the ‘world’ which crucified Christ.”

My own life, however, has not unfolded as I had thought it might have done with regard to these early aspirations. During the past four decades plus I have wandered about both geographically and spiritually, spent several years in the Peace and Freedom movements of the sixties, intermittently returned to school to pursue various degrees, and have been a teacher for well over three decades. However, in December 2005 I retired from fulltime work and in May 2007 I handed in my very last grades.

Now freed from vocational pressures I have recently returned to the serious study of Nietzsche with particular attention to his particular importance for Christians. It now seems quite certain that I will never write a full book on Nietzsche and Christianity. Whatever I do, I will certainly never write anything particularly scholarly about Nietzsche — during the past half century the amount of writing about Nietzsche has exploded and my own originally modest foreign language learning skills are fading with age. Still, during the past century there have been only a few efforts to incorporate Nietzsche into the consciousness of thoughtful Christianity - and that which has been done is not always easily obtained [The Bibliography has a few examples.]. In this context, then, it is just possible that these reflections might constitute a modest, but useful contribution.

A POSTPONED INTRODUCTION

A ‘breviary’ is usually an epitome, a selection of quotations, Biblical verses, or brief writings which contain distilled highlites from some book, author, or topic deemed important by the collection’s editor. In contemporary usage a breviary usually refers to a religiously motivated selection useful for prayer or meditation. The role of the editor is usually limited and unobtrusive; he or she has selected the best fruit for those times when the reader does not have time to view the whole tree. Thus the collection is usually thematically bound by a mutual perspective and purpose shared by editor and reader.

In this case, however, I do not presuppose that the reader believes that there is a deep and genuine connection between the writings of Friedrich Wilhelm Nietzsche and the reported words of Jesus of Nazareth and other religious quotations cited below. As is well known Nietzsche was a passionately atheistic philosopher who rejected most religious beliefs and who especially rejected most Christian beliefs. In his Thus Spoke Zarathustra he proclaimed the “Death of God” and exhorted his listeners to be ‘true to the earth.’ His book Der Antichrist contains one of the most impassioned polemics against Christianity ever written. The ambiguous title is usually translated as The Antichrist, but is perhaps more aptly translated as The Anitichristian. In Der Antichrist Nietzsche disagreed with most of Jesus’s ideas and values as he understood them (altho he clearly admired Jesus’s life). More pointedly, however, in this book he utterly rejected the messages of Paul and the other authors of the Christian New Testament. Furthermore, in this and other works he frequently and pointedly criticized other famous Christians such as Tertullian, Luther, and Pascal.

Still, in spite of the striking and obvious dissonances in the lives and words of Jesus and Nietzsche, I have also found that underneath these dissonances there are some deep and instructive similarities and connections in both the words and spiritual interests of these two men. For one, both men frequently used hyperbole and very striking metaphors to express their most important thoughts. Both of them appeared to have thought that genuinely important or spiritual matters could not be expressed in strictly literal terms. Secondly, both men had a hatred for hypocrisy. To be sure, as I read the gospels, Jesus was also marked by a humility that was usually sorely absent in Nietzsche’s work. Furthermore, in the records that we have Jesus’s penchant for metaphor and parable was often limited by the context in which he was speaking. On the other hand some of Nietzsche’s more immoderate and even reckless use of hyperbole almost invites misinterpretation. This strikes me as being particularly true in those works written just before his January 1889 collapse and descent into madness.

In sum, this editor will examine some striking or interesting phrases by Nietzsche and relate them to some well known words attributed to Jesus and to various Christians. Some interspersed commentary will be needed as the spiritual similarities of interest are are neither obvious nor complete.

A final caveat. In this work I am not trying to defend, correct, or refute Nietzsche’s ideas. Furthermore, when I cite Nietzsche’s words I am not even trying to interpret his words as he understood them. Nietzsche frequently wrote in a style which suggested multiple or even contradictory interpretations. What I am saying is that his words readily lend themselves to certain concerns and thoughts that I can only deem as spiritual concerns. Furthermore, I believe that these concerns should be important to those who believe that Jesus of Nazareth was one of the best — if not the best — exemplar of human life on record. And, whether the reader agrees with me on either of these issues, I hope this effort makes it clear that Nietzsche’s thought was not antipodal to some very important religious and spiritual concerns which have been expressed thru the ages.

A Further Note for the more scholarly inclined.

In the work I do not give serious attention to Nietzsche’s disdain for liberal democratic theory, his occasional praise of cruelty, or his sometimes rigid notions of sexual ‘roles.’ His ideas on these subjects are frequently neither substantial nor helpful in furthering philosophical and ethical inquiry. Why Nietzsche held or expressed these views is psychologically quite interesting, but cannot be done justice in such a short piece as this.


Aphorisms List

0a. “...; for the children of this world are in their generation wiser than the children of light.” Luke 16:18, King James Bible (KJB)
“...; for the worldly are more astute than the other-worldly in dealing with their own kind.” Luke 16:18, New English Bible (NEB).
0b. It was the church and not the ‘world’ which crucified Christ. (Karl Barth, paraphrased from his Epistle to the Romans.)
#1-0. I, who cannot fly, must reach the distant mountains!! [LCHj]
#1a “Man is a rope, tied between the beast and the overman — a rope over an abyss.” (FWN)
#1b “Life must overcome itself again and again.” (FWN)
#1c “But it is with Man as it is with the tree. The more he aspires to the height and the light, the more strongly do his roots strive earthward, downward, into the dark, the deep — into evil.” (FWN)
#1d You should love peace as a means to new wars—and the short peace more than the long.” (FWN)
#1e You must not think I have come to bring peace on earth; I have not come to bring not peace, but a sword. (Jesus)
#1f. “Jesus said: I have cast fire upon the world, and look, I’m guarding it until it blazes”
#5 That which doesn’t destroy or kill me, makes me stronger. (FWN)
#6 Spirit is the life that itself cuts into life. (FWN)
#7a Whatever is done from love occurs beyond good and evil. (FWN)
#7b Jesus said to his Jews: “The law was for servants—love God as I love him, as his son! What are morals to us sons of God! (FWN)
#7c The written law condemns to death, but the spirit gives life. (Paul)
#8—10 Truth is the lie which serves us best! (Nietzschean)
#8a Alas for you lawyers and Pharisees, hypocrites! You are like tombs covered with whitewash; they look well from the outside, but inside they are full of dead men’s bones and all kinds of filth. (Jesus)
#8b Either make the tree good and its fruit good, or make the tree bad and its fruit bad; you can tell a tree by its fruit. (Jesus)
#9a Every word is a preconceived judgment. (FWN)
#10a What are mankind’s truths. They are the irrefutable errors of man. (FWN)
#10b Insanity in something individuals is rare - but in groups, nations, and epochs it is the rule. (FWN)
#4. One repays a teacher poorly if one always remains a pupil. (FWN)
#11a “Faith” means not wanting to know the truth! (FWN)
#11b God fully intends for Heretics and Atheists to be a thorn in the side of religious hypocrites. (LCHj)
#12a The Kingdom of God is in you. (FWN)
#12b The Kingdom of Heaven is a condition of the heart. (FWN)
#12c ”The kingdom of God cometh not with observation. Neither shall they say, Lo here! or, lo there! For, behold, the Kingdom of God is within you.” (Jesus)
#13a In truth, there was only one Christian, and he died on the Cross. (FWN)
#13b “Jesus Christ will be in agony until the end of the world.” (Pascal)



“Alas for you lawyers and Pharisees, hypocrites! You are like tombs covered with whitewash; they look well from the outside, but inside they are full of dead men’s bones and all kinds of filth.” (Jesus)

“...; for the children of this world are in their generation wiser than the children of light.” Luke 16:18, King James Bible (KJB)
“...; for the worldly are more astute than the other-worldly in dealing with their own kind.” Luke 16:18, New English Bible (NEB).
I. Nietzsche's Wörter

I. Aphorisms by Nietzsche and others
#1a “Man is a rope, tied between the beast and the overman —
a rope over an abyss.” (Zarathustra, Prologue, section 4)

“Der Mensch is ein Seil, geknüpft zwischen Tier und Ubermensch — ein Seil über einem Abgrunde.” (Z, forword, 4.)

“For thou hast made him a little lower than the angels.” Psalm #8: 5, King James Version.

#1b “Life must overcome itself again and again.” [Zarathustra, II, On The Tarantulas.]

#2 “But it is with Man as it is with the tree. The more he aspires to the height and the light, the more strongly do his roots strive earthward, downward, into the dark, the deep — into evil.” (Zarathustra, part I, On the Tree on the Mountainside)

“Aber es ist mit dem Mensch wie mit dem Baum. Je mehr er hinauf in die Höhe und hell will, um so stärker streben sein Wurzeln erdwärts, abwärts, in Dunkle, Tiefe — ins Böse.” (Z, section I, Vom Baum am Berge.)

#3 “You should love peace as a means to new wars—and the short peace more than the long.” (Zarathustra, I, On War and Warriors.)

“Ihr sollt den Frieden lieben als Mittel zu neuen Kriegen. Und den Kurzen mehr als den langen” (Z, I, Von Krieg und Kriesvolke.)

“Love your enemies and pray for your persecuters.” Matthew 5:44
“You must not think I have come to bring peace on earth; I have not come to bring not peace, but a sword. I have come to set a man against his father, a daughter against her mother, a son’s wife against her mother-in-law; and a man will find his enemies under his own roof” [Matthew 10:34-36].
“Jesus said: I have cast fire upon the world, and look, I’m guarding it until it blazes” [Thomas #10 in the Five Gospels].

#4 One repays a teacher poorly if one always remains a pupil. [Z, I, On the Gift-giving Virtue.]

“Man vergilt einem Lehrer schlect, wenn man immer nur der Schüler bleibt. Und waru wollt ihr nicht an meinem Kranze rupfen.” (Z, I, Von der schenkenden Tugend, part 3.)

“...das Leben sich immer wieder selber überwenden muss!” (Z, II, Von den Taranteln.)


“...das der Mensch eine Brücke sei un kein Zweck” (Z, III, Von alten und neuen Tafeln, section 3.)


“Was aus Liebe getan wird, gechieht immer jenseits von Gut und Böse” (JGB, IV, #153.)

“Was mich nicht umbring, macht mich stärker.” (GD, I, 4.)

“Das ‘Himmelreich’ is ein zustand des Herzens.” (WM, I, 4.)



Nietzsche’s Actual Words

#4
One repays a teacher poorly if one always remains a pupil. [Z, I, On the Gift-giving Virtue.]

“Man vergilt einem Lehrer schlect, wenn man immer nur der Schüler bleibt.” (Z, I, Von der schenkenden Tugend, part 3.)

#5
Spirit is the life that itself cuts into life: with its own agony it increases its own knowledge. [Z, II, On the Famous Wise Men.]

“Geist ist das leben, das selber ins Leben schneidet; an de eignen Qual mehrt es das eigne Wissen.” (Z, II, Von den berühmten Weisen.)
#6
Whatever is done from love occurs beyond good and evil. (Beyond Good and Evil, part 4, epigrams and interludes, #153)

“Was aus Liebe getan wird, geschieht immer jenseits von Gut und Böse.” (JGB, IV, #153.)

#7
Insanity in individuals is something rare - but in groups, parties, nations, and epochs it is the rule.
Madness is rare in individuals—but in groups, parties, nations, and ages it is the rule. (BYGE, part 4, epigrams and interludes, #156 [WK])
“Was aus Liebe getan wird, geschieht immer jenseits von Gut und Böse.” (JGB, IV, #153.)

Bibliographical Conventions and Bibliography

I have cited Walter Kaufmann’s translations of Nietzsche whenever available. Most of the translations are found in the Viking Portable Nietzsche (VPN) and Basic Writings of Friedrich Nietzsche (BWFN ). I have also provided the actual German words in those instances when I have been able to locate them. See both the Aphorism and Sayings List [above] and Bibliography [below] for more details.

The translations chosen for Jesus’s words are less consistent. Translations such as The New English Bible [1961] and the even more recent The Five Gospels [1993] correspond much more directly to the modern manner of speech than the four century old King James Bible [KJB]. On the other hand the King James Bible has a literary resonance that I still find irresistible at times. I hope the reader will not take it too much amiss that I will sometimes use the older translation and sometimes use newer translations.

Perhaps a more important issue is the question of determining Jesus’s actual words. My own approach is to utilize only those Biblical texts which strike me as a faithful paraphrase (if not the actual words) of Jesus’s teachings, teachings worthy of serious consideration. I do not speak here as a scholar, but as a moderately informed amateur who trys to write from the heart.


Deutsche Bibliographie

Friedrich Wilhelm Nietzsche (1882;1887). Die Fröhliche Wissenschaft. Anaconda Verlag: Köln.
Friedrich Wilhelm Nietzsche (1883). Also Sprach Zarathustra: Ein Buch für alle und keinen in Friedrich Nietzsche: Also Sprach Zarathustra. Goldmann Klassiker: München. 269 pages.
Friedrich Wilhelm Nietzsche (1885). Jenseits von Gut und Böse.
Friedrich Wilhelm Nietzsche (1888). Götzendämmerung.
Friedrich Wilhelm Nietzsche (1895; 2003). Der Antichrist in “Friedrich Nietzsche: Der Antichrist, Ecce Homo, Dionysus-Dithyramben”. Goldmann Klassiker: München. 213 pages. (Written in1888, but first published in 1895).
Friedrich Wilhelm Nietzsche [Post-Humous; 1901, 1904, 1911]. Der Will zur Macht. [Published post-humously from Nietzsche's notes.]
Friedrich Nietzsche (1987). Brevier. [Wolfgang Kraus, Editor]. Diogenes Verlag: München. 151 pages.

English Bibliography

Walter Kaufmann, Editor &Translator (1954). The Portable Nietzsche. The Viking Press: New York. 687 pages.

Walter Kaufmann (1974). Nietzsche: Philosopher, Psychologist, Antichrist (4/e). Princeton University Press: Princeton. 532 pages.

Friedrich Wilhelm Nietzsche (1969). Basic Writings of Friedrich Nietzsche. Walter Kaufmann, Editor &Translator. The Modern Library: New York. 845 pages.

Christians (1966). Good News for Modern Men: The New Testament in Today’s English [Robert G. Bracher, Translator]. American Bible Society: New York. 601 pages.

_____ (1961). The New English Bible. Oxford University Press: New York. 447 pages. [NEB]