November 15, 2000
What 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.
If 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.
The 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.
(My 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 happen.)
What 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.
To 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.
Even 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 healthy development.
It 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 goals.
One 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."
The 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.
Maybe 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.
Have 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.
"The 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."
Roger 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.
Judge 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.
That 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?"
The 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.
That 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.
Americans 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.
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