Jewish World Review Nov. 16, 2000 / 18 Mar-Cheshvan 5761
The issue in impeachment was the rule of law: Should the president be bound by the same rules against perjury as bound everybody else? The Republican answer to that question was: Yes. Democrats countered that public opinion was more important than law -- and that public opinion favored the president. They won.
Almost two years later, we are back at the old stand. The Constitution says that the candidate who gains a majority of the vote in the Electoral College becomes president. It is by now overwhelmingly likely that George W. Bush will be that candidate. And once again, the Democratic Party is arguing that public opinion should supercede the law: Al Gore's legally irrelevant lead in the popular vote should trump George W. Bush's constitutionally decisive victory in the Electoral College.
There are some pretty glaring ironies here: For 40 years, liberal judges have been foisting hugely unpopular laws on angry public majorities. They have strained, revised, distorted and manipulated the constitutional text to rewrite the criminal law, ban school prayer, bus schoolchildren across town to achieve racial balance, create a constitutional right to abortion and thwart the death penalty. And whenever anybody complained, the liberal wing of the Democratic Party would coolly explain that the Constitution set limits on majority rule that had to be respected.
Now, suddenly, we are faced with a case where the commands of the Constitution are not subtle and difficult to read, as they were when the Supreme Court stewed the Third, Fourth, Fifth, 10th and 14th amendments together to create a new federal abortion right. When it comes to electing a president, the rules are clear and plain.
Every election since 1788 has been conducted on the basis of those rules. Eight duly elected presidents have won less than a majority of the popular vote: Thomas Jefferson in 1800, John Quincy Adams in 1824, Abraham Lincoln in 1860, Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, Woodrow Wilson in 1912, Richard Nixon in 1968, Bill Clinton in 1992 and 1996. Three of them -- Adams, Hayes and Harrison -- certainly won fewer votes than one of their opponents, and so probably did Thomas Jefferson. Nevertheless, the Constitutional text is the Constitutional text: Rhe winner of the Electoral vote is the president.
Today, voices are being heard denouncing the Electoral College as unjust, arbitrary, antidemocratic and so on. Maybe those voices are correct -- I don't happen to think so myself, but maybe they are. If they are correct, then the College should be abolished in time for 2004. But the suggestion that an election should be conducted on one set of rules and then scored on the basis of a different set is not very different from a demand that the election be cancelled altogether -- that political power should be seized by whoever can seize it.
And in fact, a seizure of power is increasingly obviously what the Gore team has in mind. Andrew Sullivan, a dissident political columnist at the famously pro-Gore New Republic magazine, offered Thursday a dark analysis of the Gore campaign's possible strategy on his website: "Read the Twelfth Amendment closely. It states that by Dec. 18 'a majority of the whole number of electors appointed' to the electoral college will decide who is president. It doesn't say a majority of the whole number of electors, appointed or not. But what if the Florida lawsuits are not finished by then? The New York Times reports today that a federal judge could conceivably bar Gov. Jeb Bush of Florida from certifying Florida's electors if the election isn't clearly resolved. But the Electoral College could still constitutionally convene. So without Florida, Gore wins!"
Perhaps the Gore campaign isn't that cynical. Or perhaps they haven't yet thought that far
ahead. Perhaps their strategy is simply -- as Clinton's was during impeachment -- to delay,
delay, delay in the hope that something will come along that will save them from the
requirements of the law. Who knows? But what we do know is that for the second time in three
years the Democratic Party is preparing to overturn the law for the sake of power and
11/15/00: Bush will prevail because of the solidity of the American legal and constitutional system