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Who Are You Calling Angry?

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I see by the newspapers that I'm supposed to be enraged. Conservatives are like that, you see. Kind of touchy--unbalanced, really. When a politician we don't like--Al Gore, in this case--goes to court to try, for the first time in history, to overturn the certified result of a presidential election, and then launches a raft of novel and fallacious legal theories to muddy the clear intent of legally passed statutes, and finally enlists the aid of a politically sympathetic team of state supreme court judges to count the votes and count them again until the tally makes him the winner--well, we conservatives just refuse to do the gentlemanly thing. We lose our heads. We depart the world of rationality.

It says so right here. We "bellow," says the Los Angeles Times. And "howl." We reach "fever pitch." Our "rage sharpens" our rhetoric, says the Washington Post. We "unleash our wrath," says the Baltimore Sun. I always trust the newspapers, of course, but I've searched myself for signs of rage, and I've come up empty. The same is true for my conservative pals (not one of whom, I'm happy to say, could be counted among the G.O.P. battalion of Brooks Brothers goons who actually did bellow and howl at Miami-Dade officials last month). Like most people, conservatives ran through a series of emotions last week. I was mildly pleased when Judge Sauls slapped down Vice President Gore's lawsuit contesting the election, and I was mildly alarmed by the Vice President's brief press conference, when he pronounced himself "optimistic" (Who's unbalanced now? I wondered), and then, when the Florida Supreme Court overturned Judge Sauls' ruling and confirmed Gore's optimism, I somehow managed not to foam at the mouth. But I was surprised and appalled. And then surprised again and pleased again, 24 hours later, with the U.S. Supreme Court's emergency stay.

All of which seems to me, with all due respect to the L.A. Times and the others, to be a perfectly rational reaction. The dispute over Florida touches on first principles, as disputes between liberals and conservatives often do. The train of reasoning is roughly as follows. Most people not besotted by partisanship have reached the conclusion that the vote in Florida is a statistical tie. Out of 6 million votes, the difference between the two candidates' totals is so slender that it could be accounted for by any number of variables having nothing to do with the intent of the voters--errors committed either by machines or by humans, in either the casting of votes or their tabulation. These variables, and the extent to which they influenced the vote, are essentially unmeasurable and hence unknowable. Count the totals 10 times, and you will get 10 different results--first one winner, then another, and then the first one again.

Here is where the first principles come in. Life is messy. It is often maddeningly so, as in the case of Florida. Over many centuries, people lucky enough to live in democracies have devised a method to draw some kind of certainty from life's irregularities. Through their representatives they write laws, and these laws become neutral, objective principles to which everyone can appeal. A law is intended to bring order out of chaos. When it turns out that the law is poorly suited to its purposes or otherwise deficient, then it can be changed. But it must be changed in a particular way: by the people themselves, through representatives accountable to them alone. This is what "consent of the governed" means. As a practical matter, the consent of the governed is expressed by legislators who are voted into office for the purpose of writing new laws and changing old ones. If the legislators change or write those laws in ways we disagree with, then we get to get rid of the legislators and hire replacements. Ta-da! Democracy! The rule of law!

This is what Florida's legislators did. By Election Day, they had put in place a number of laws to regulate the messiness that invariably results when 6 million people go to thousands of polling places to cast ballots that are then counted in a variety of ways by hundreds of different officials. And a whopping messiness--a mess of unprecedented proportions--did indeed result. But the laws were there to regulate it. And under the law, George Bush won Florida. This is not to say that he won in the sense of cosmic certainty, under the aspect of eternity, in the sight of an all-knowing being. Cosmic certainty is denied to human beings. In its place--a poor substitute, I admit--they have laws.

Four justices of the Florida Supreme Court changed those laws last week, long after the election was over. They are not supposed to do this. Judges aren't supposed to write law because they aren't responsible to us in the same way legislators are. And when they do, it is no trifling matter. It is an assault on the barriers that free people construct to separate themselves from chaos. The barriers have been breached, and the justices have offered us a terrifying glimpse of chaos. Come to think of it, maybe conservatives--maybe everybody--should be enraged after all.


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Cover Date: December 18, 2000

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