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Jewish World Review Nov. 13, 2000/ 15 Mar-Cheshvan 5761

Charles Krauthammer

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Democracy and Legitimacy -- BEWARE WHAT YOU WISH FOR. Even journalists, whose fondest dream is a cliffhanging election that goes far into the night, could hardly wish for the wild course of reversals of election night 2000. Drama is appropriate for campaigns and governing; in a mature democracy, however, drama should not be an element in the ballot counting itself.

When a presidential candidate withdraws his concession, when critical network projections have to be retracted twice, when the margin of victory is so small that the presidency can be determined by a few stray ballot boxes in a state of 6 million voters, we've achieved far more drama than any democracy needs.

This election has generated not one but two crises of legitimacy. The first arises from the real possibility that Al Gore wins the popular vote but loses the presidency. (This is not certain, however: As of this writing, Gore's margin is under 200,000, with more than 2 million absentee ballots still to be counted in California, Oregon and Washington.)

This problem, however, is not the most acute. After all, it is not as if the electoral college system was imposed retroactively on the candidates. They knew the rules of the game in advance. Indeed, it was the Gore campaign that went around before the vote touting the sanctity of the electoral college, at a time when it looked as if Gore would lose the popular vote.

Accordingly, both the Bush and Gore campaigns were designed, crafted and executed to meet electoral college requirements rather than popular vote requirements. George W. Bush, for example, would not have spent so much time and get-out-the-vote money in, say, Michigan, if there was no "winning" Michigan. He would have spent his time and money piling up huge popular majorities in Republican, vote-rich Texas and the South.

Moreover, the whole American system, the most successful and stable in the world, has always rejected pure majoritarianism. In the Senate, for example, Delaware speaks with a voice equal to that of California. Truly important actions, such as ratifying treaties and declaring war, require super-majorities.

And on constitutional issues, the Supreme Court routinely throws out laws if they do not conform with our higher political principles. It does not care even if the laws were passed unanimously. As Madison wrote in Federalist 55: "Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob."

However, election night 2000 generated a second and more serious crisis of legitimacy. It stems from the narrowness of the victory. It is deeply troubling that the future course of a country of 275 million should be determined by the decision of a handful of voters.

This fluke election reminds us what we ordinarily prefer not to think about: How arbitrary any democratic system ultimately is. After all, by what principle of equity should 49.99 percent of the population yield to the will of the 50.01 percent? Why is it that adding a single vote to 50 percent defines legitimacy? Why exactly do we allow ourselves to be ruled by majorities anyway?

The simple answer, of course, is that it works--democracy being the worst form of government apart from all the others. Our Anglo-Saxon political tradition does not worship the "popular will," as did Rousseau. We choose democracy because long historical experience demonstrates that it is the system most likely to produce stability and social peace. Where majorities generally have their way, people tend to be more satisfied--and more willing to yield to authority--than those places where majorities are thwarted.

This is, of course, generally true. But it takes a presidential election that hinges on 1,800 votes out of 100 million to remind us how essentially capricious our system can be. There is no doubt that the victor will now find his legitimacy questioned and his authority diminished. When the winner takes the oath of office on Jan. 20, it will be hard to get out of one's head the fact that he did so because of a handful of ballots--will either side ever be satisfied that there was no cheating?--in a country equally prepared to have sworn in the other guy.

We can perhaps be mollified, if not consoled, by the fact that both Gore and Bush received far more popular support than Bill Clinton did in acceding to the presidency in 1992. Nonetheless, it is hard to escape the realization, forced on us by the Florida fiasco, of democracy's deeply rooted irrationalities. The real consolation, I suppose, is that these fundamental flaws, and accompanying crises of legitimacy, tend to crop up, oh, every 125 years or so.

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