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Legitimacy Survives. Too Bad.

Dennis Fox


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 commonsense fairness.

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 electors).

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.

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  • New Democracy
  • Rights Tenet

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Page updated September 30, 2007