10 November 2000
"Can you believe this f***ing mess?!"
-- My friend Mr. Hutchison on the election night fiasco
In her journal entry today, Hanah reproduces a U.S. electoral map and describes the divide as one between essentially "two separate countries: one encompassing the middle of the nation, where people want to be left alone to take care of themselves, and the other encompassing the northeast and the big urban areas, where the overeducated elite want to control everyone's lives and the undereducated poor want everyone else to take care of them. "
Without using quite the loaded language, I think Hanah is onto something. The electoral map shows Gore's support on the Pacific coast, the northeast, and the upper "trade union" midwest (interestingly, all places rich in electoral college delegates) and Bush's support in the south, virtually the entire midwest and southwest, and the mountain west. And Hanah is dead on to note that this divide, on the surface, is largely driven by differing views on the role of the national government.
But it seems to me there is a conceptual (more precisely, a constitutional) division that is much deeper. One side, the Gore Liberals (for lack of a better term), not only favor a greater role for the national government, but, as the progeny of the Progressives, they view the Constitution, rule of law, courts, and the rest of the legal system as mere instruments that either help along their efforts to "provide justice for all" or as impediments that must be gotten out of the way so that their "justice" can be served. Bill Daley reflected this view a few days ago when he said the only way for the people's will (and therefore justice) to be served in Florida would be for the state to be awarded (by whom? blankout; by what legal authority? blankout) to Al Gore, despite there being a clear process of law to be followed. This is reflected in the Democrats deciding to run a dead man for Senate in Missouri despite the Constitution being clear that a Senator-elect must be an inhabitant of the state in which he is elected (a dead man is not an inhabitant of any state). This is nowhere more clear in Al Gore raising funds illegally and then claiming there was "no controlling legal authority" involved.
On the other side, the Bush conservatives (also for lack of a better term) do favor a limited role for the national government, precisely the role that is spelled out by the Constitution. For conservatives, the Constitution -- and law -- should be strictly constructed and carefully followed, for they would contend we are a nation of laws, not men. Clinton's impeachment is a case in point. For the House managers, Clinton's perjury threatened the rule of law, and despite the fact that a majority of Americans opposed their efforts, those conservatives followed their principles through to the end (some of them paying by losing their seats this election). Perhaps an even better case in point would be most conservatives' respect for the Federal nature of the republic spelled out by the Constitution, in which only certain powers are given to the national government, the rest being reserved to the states. When a conservative Supreme Court narrowly scaled back the Commerce Power of the US government recently in a case involving a US drug/gun free school zone law, many liberals were upset their well-intentioned law had been overturned. But most conservatives upheld the decision, realizing that the US government had really overreached under the commerce power (although the commerce clause has been so abused -- and so misinterpreted by the court until recently -- that one could forgive people for being surprised a law was overturned).
How is this divide illustrated in Florida? The Bush side has pledged to abide by a declared vote, a declared recount, and of course the absentee ballots. The Gore "campaign" immediately dispatched nearly 100 lawyers to Florida to begin investigating "all their options" under Florida law. Options for what? Options to overturn a result (the initial vote count) they didn't like, a second result (the initial recount) they didn't like, and maybe even substitute statistical analysis of the "will of the people" for the actual evidence of the will of the people (ballots). One side, despite what I would call some unfortunate rhetoric, has conducted itself with respect for the rule of law. The other side, with inflammatory and embarrassing rhetoric, has conducted itself according to form: instead of respecting the process of law or acting with concern to the health of the Constitution, the law is instead something to be exploited in order to secure their view of "justice" (or the people's will, or whatever the focus-group phrase of the day is).
I don't think this whole episode will result in a constitutional crisis per se, because I think we have been living through a constitutional crisis for some years now. Why do I say this? Consider the two groups I described above and their views of the constitution and law. Consider that these two groups are, to a large extent, geographically based, and that this is not a new phenomenon, but rather one that has been drawn to our attention by this election. Recall the last time we had such political division by region in this nation, it brought about a civil war. Isn't that what happens when there is fundamental disagreement over the nation's most fundamental laws?
Am I suggesting this will trigger a civil war. No, not necessarily. But is it a problem there is such widespread disagreement over the Constitution? (Consider the electoral college -- and the debate it has generated among people who don't seem to understand it was a mechanism among many in the constitution designed to refine and sometimes frustrate raw majority will; the electoral college does this by requiring a candidate to win, essentially, a "majority of majorities," majorities of electors by state). Is it a problem when there is fundamental disagreement over the role of law in the regime? Is it a problem so many people do not understand that our constitution was designed to frustrate, to a very large extent, majority will, and that rather than subvert the constitution (a process that began with the Progressives and may be culminating before our eyes), we might be wiser to consider amendments or even a constitutional convention before destroying what Sanford Levinson has called our "constitutional faith" in such a trivial manner as is unfolding?
Like yesterday, I wind up with more questions than answers.
Copyright (c) 2000, Kevin L. Whited