Legitimacy Survives. Too
Tears for the judicial system's potentially damaged legitimacy flow a
bit too freely in the wake of the tit-for-tat Bush-Gore court decisions.
Let's dry our eyes. Despite the moaning and groaning, damaged legitimacy
would be a positive outcome. Unfortunately, our constitutional system
is robust and slippery enough to ensure that whatever outcome we get always
proves that "the system works." That's cause for concern, not celebration.
The main problem isn't that some judges are obviously partisan or, probably
more accurately, that they're firmly committed to a nit-picking conservative
judicial philosophy. And it's not that election laws need legislative
tinkering so that the will of the people can be determined more accurately.
Although impartial progressive judges and more carefully crafted laws
would bring certain short-term benefits, they would also mask the fundamental
problem: inherent faults within the vaunted rule of law.
The see-sawing court opinions have pundits debating the nation's separation
of powers (did the Florida courts have the power to alter the legislature's
electoral scheme?), federalist system (did the U. S. Supreme Court have
the power to intervene in a state-controlled election?), electoral mechanics
(what's with that Electoral College anyway?) and supposed decline in civility
(can't we all just get along?). Yet despite all the chat, few have
paid attention to the downside of using the law to resolve human problems.
Four interrelated issues come to mind.
First is the nature of legitimacy. Legitimacy is a psychological
phenomenon, enhanced by a variety of false consciousness techniques ranging
from the inculcation of myths to denials that philosophical differences
affect decisions to the use of black robes, elevated chairs, and legal
mumbo-jumbo. Whether the courts, or the law more broadly, or for that
matter legislators and executives deserve their legitimacy should be discussed
more widely. In a truly democratic society, legitimacy would come from
the people's effective input into decisions made about their lives. But,
in our society, the disconnect between the people and the system's elites
becomes increasingly obvious.
Second is the distinction between equity and the rule of law.
The first Bush-Gore Supreme Court arguments and opinion made clear that,
for a variety of traditional and constitutional reasons, equity (fairness,
justice, maybe "accuracy") has nothing to do with the rule of law, which
is technical, narrow, intentionally divorced from real human beings, and
more concerned with finality than accuracy. The boast that we are a "nation
of laws, not of men" rings hollow when technicality so obviously overcomes
Third is the central role of discretion. Even under the strict
rule of law, discretion is unavoidable. Especially on important issues,
conflicting precedents and principles and the use of "sound judgment"
can justify almost any decision at all. That's obvious in the multi-opinioned
Supreme Court decision favoring Bush. If the Court had been unanimous,
the discretion would be harder to see, but just as inherent. Judges may
not be openly or even secretly partisan, but they are human. Their differing
philosophies about the court's role and differing emotional reactions
channel their interpretation of whatever it is they choose to see as relevant.
Finally there's the distinction between procedural and substantive
justice. The law enshrines procedural justice, partly because it's
usually easier to figure out what that means than in the Bush-Gore case,
and partly because law as an elite tool incorporates principles and procedures
that intentionally deny meaningful justice for the masses. Procedural
protections abound, yet they routinely misdirect attention away from the
law's lack of interest in substantive fairness. Even voting is a procedural
mechanism that too often pacifies people instead of empowering them.
Claims that the system worked in the end are, of course, true, at least
so far. The system can handle just about anything, because the flexible
rule of law can justify any decision at all, and when necessary it can
create new mechanisms and new procedures to tie up loose ends. The test
of "working" is pretty weak: short of a coup, everything works just dandy,
even though our constitutional system's many anti-democratic provisions
have never been entirely eradicated (including, most of us just learned,
the provision that state legislators can themselves pick presidential
Law developed historically to displace well-functioning face-to-face
nonlaw societies, generally egalitarian societies maintained by varying
combinations of custom and peer pressure. Law allowed larger societies
to coalesce, and that trend continues--the European Community expands
and overrides local law, the World Trade Organization creates new law
for the entire planet. Law opposes democracy, it doesn't enhance it.
Under these circumstances, we should welcome threats to system legitimacy
and escalate our demand for true democracy. But rather than simply engaging
in partisan maneuvering and legislative reforms aimed at future electoral
victory, we should raise more fundamental questions about the nature of
our political society.
Planned Inauguration Day protests over this year's stolen election are
a beginning. More important in the long run is the realization that, especially
in our corporate-dominated, winner-take-all, incumbent-protective system,
every election steals decision-making power from ordinary people, even
when it's the lesser of two evils who wins. And in the unlikely event
that we ever emerge with a truly progressive president, those judges on
high will always stand ready to pull out their rule of law and make sure
things don't get out of hand.
- New Democracy
- Rights Tenet