we are seeing in Florida rather closely resembles an organized crime
war between two rival "families" who seek control over
certain rackets. The soldiers have gone to the mattresses, moving
away from their homes to be at the scene of the action, devoting
full time to the war and all its tactical maneuvers and countermeasures.
As the most successful syndicate the Government Gang hardly ever
resorts to anything so crude as machine guns or garrotes when lawsuits
before friendly judges, leaks to the press, threats to find new
votes, dueling public officials, threats to use public agencies
to embarrass or ruin oneís foes and media spin can defeat the enemy
in a less messy and far less controversial fashion.
we are fortunate, an even larger portion of the public will come
to recognize in a somewhat more conscious way the essentially power-seeking,
quasi-criminal character of politics and governance as it has evolved
in the United States at the dawn of the next millennium and withdraw
the implied consent that gives the system some semblance of legitimacy.
The less sense of legitimacy and ability to muster virtually automatic
support the next administration has the more difficult it will be
for it to indulge in foreign adventures.
sheer hypocrisy of most of the politicians is breathtaking in scope.
A Palm Beach County Elections Supervisor, Theresa LePore, the Democrat
who designed the now-infamous "butterfly ballot," voted
just a couple of months ago to deny a manual recount for a GOP candidate
who lost a state house primary by only 13 votes. "It wasnít
that close," said Ms. LePore. "The manual count is historically
only when itís in single digits." But when a manual recount
might benefit a Democrat, she voted to authorize it.
not-entirely-frivolous suggestion is that all these major-party
partisan officials should recuse themselves from participating in
supervising counts and recounts, leaving the job only to people
who voted for Nader, Buchanan or Browne in the general election.
They might have biases, but not an obvious personal stake in the
outcome between a Democrat and a Republican. But that ainít gonna
is clear is that all parties in Florida are interested in acquiring
power by whatever means necessary, and that they are using the concept
of the law to cover their opportunism. Johnny Apple of the New
York Times dug up an apt quote from Aldous Huxley: "Idealism
is the noble toga political gentlemen draw over their will to power."
This naked scramble for power in Florida should pull the toga aside
for many Americans, making it more clear than ever that this is
not about the rule of law or the "will of the people"
(how can a "people" almost equally divided be said to
have a discernible "will"?) but about acquiring access
to the levers of the institutions of force and coercion in our society.
How that can be distinguished morally from a struggle between two
criminal gangs I do not know.
be sure, many of the critiques of the process coming from overseas
partake of self-satisfied America-bashing and a degree of ignorance
about how the American system functions. An election this close
is bound to produce disputes that need to be resolved in a reasonably
orderly fashion. The American system has not fallen apart or descended
to the level of a Banana Republic at least not quite yet. It is
still a fairly orderly system for oppressing citizens rather than
an entirely arbitrary one.
if critiques from overseas are not entirely fair, however, they
are part of the environment the new president, whoever he is, will
face one in which the United States has inevitably lost a certain
amount of prestige, a certain amount of the justification form being
considered the natural leader of the world and the arbiter of what
is acceptable practice in other countries. This is an unquestionably
is undoubtedly amusing and even somewhat instructive to see how
nakedly partisans have manipulated the law in the wake of the close
election results in Florida. While undermining the rule of law in
the name of the rule of law furnishes delicious opportunities to
expose the hypocrisy of politicians, however, there are dangers
too few have highlighted. Twisting the law for partisan purposes
may be viewed as good, clean fun in many circles, but it is profoundly
subversive of a free and civilized society, doing damage over the
long run that is often ignored during the pursuit of short-term
of the calmest and most understated yet ultimately most chilling
critiques of the Clinton era was made in a book just released
by the libertarian Cato Institute called The
Rule of Law in the Wake of Clinton. Based on a conference
held in July, it elaborates on the premise, as editor (and Cato
vice president of constitutional studies) Roger Pilon puts it, that
"to the extent that the rule of law is eclipsed by the rule
of man, civilization, progress, and real people are the victims."
rule of law is a system, as the University of Virginiaís Lilian
BeVier puts it, in which "clear, impersonal, universally applicable,
general laws constrain the conduct of both individual citizens and
those who govern them." The bookís 15 essays by prominent legal
scholars and practitioners document the dramatic steps away from
the rule of law and toward the arbitrary, unpredictable "rule
of man" under the Clinton-Gore regime.
itís foolish to fret about such matters. Maybe the state is, as
I tend to believe in my more cynical moments, nothing but a criminal
enterprise designed to exploit the vulnerable and cloak its exploitation
in noble concepts like "the rule of law." But until the
state actually withers away, the concept of the rule of law might
be something of a myth, but it is a valuable and constructive myth.
So long as we have a state in place, it would be helpful to have
a healthy conception of the rule of law to protect us against its
constant tendency to rule us arbitrarily.
both sides in the Florida dramas invoked the rule of law to cover
actions or proposals they believe would benefit their side? They
have. But Chapman University School of Law professor John Eastman
contends that the Democrats have operated more egregiously.
best example has to do with hand counts and deadlines," Prof.
Eastman told me. "Everybody has known that ballot machines
are imperfect, but those imperfections have never been viewed as
a cause of action in the absence of strong evidence of fraud, purposeful
manipulation or mechanical malfunction. The Gore campaign got some
Democrat judges to interpret the law differently, then William Daley
practically crowed that the Bush campaign had missed the 72-hour
deadline to demand recounts in majority-Republican districts. That
hardly reflects a sincere desire for a full and accurate tally,
or devotion to either the spirit or the letter of the law."
Pilon agrees that the most troubling aspect of the Florida situation
is holding hand recounts in only four selected counties where a
recount would almost certainly produce more additional Democratic
than Republican votes. "If a ballot in Palm Beach County is
treated differently than a ballot in Duval County, thereís the potential
for a legitimate equal protection problem," he told me Tuesday.
The 14th Amendment forbids a state to "deny to any
person within its jurisdiction the equal protection of the laws."
Mr. Pilon thinks the federal 11th Circuit Court might
agree on appeal, but is loath to make a prediction.
Terry Lewis sidestepped what Mr. Pilon thought would have been the
most egregious potential abuse of the rule of law Tuesday when he
upheld Florida Secretary of State Katherine Harrisís decision to
enforce a state law setting a 5 p.m. Tuesday deadline for counties
to report certified results to her. "That law is clear and
was in place well before this yearís election," Mr. Pilon said.
"To override it would have been a clear abuse." But Judge
Harris may have created more trouble with his ruling that Ms. Harris
might have discretion to accept votes submitted later, perhaps through
the Friday deadline for absentee ballots.
might sound like a "fair" compromise on the surface, but
Mr. Pilon wonders, "where under the law would the Secretary
of State acquire such discretion? What standards would she employ?
Would Palm Beach be able to submit a partial hand recounting as
a supplement to a certified result on Tuesday? Could those results
be challenged, leading to yet another recount?"
fiasco in Florida is troubling and charming at the same time. It
could well subvert the idea of the rule of law and set precedents
for arbitrary rulings in the future. But it is also certain that
whoever emerges from the muck as president will have less legitimacy
and less authority than if the results had been more clear-cut.
The longer it goes on, and the more blatantly the partisans abuse
the law for personal advantage, the more the stature and the authority
of the next president will be undermined.
wonít necessarily translate into less arbitrary power for the next
president. The imperial presidency as built up over the last seven
decades or so is rife with power and prerogatives that can be exercised
regardless of justification or legitimacy. But a system that derives
whatever moral authority it can boast from the "consent of
the governed" and therefore from a democratic system of choosing
leaders will suffer some loss of legitimacy from a tainted democratic
process. The next president might be a bit more reluctant than the
current one to abuse authority and stretch the law to cover what
he wants to do.
who have no desire for the government that rules them to preside
over an international empire should be cheered at that possibility.
To be sure, the Beltway crowd, once the matter is resolved and a
new president is installed, will do their best to induce us to forget
just how messy this process is and just how shaky is the new presidentís
legitimacy. But the people will remember, and it will be easier
for us to remind them than it has been in the past.