Strengthening Constitutional Self-Government

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The Aftermath

On Principle, v8n6

December 2000

by Steven Hayward

As I write—two days after Judge Sauls and the U.S. Supreme Court foreclosed Al Gore’s Great Dimpled Chad Hunt—the fat lady is not only singing, but is starting to run out of breath. Barring some kind of last-minute legal legerdemain (which would start a whole new political firestorm that would cut against Gore), by the time you read these words we will have been referring to "President-elect George W. Bush" for several days.

The long second act of this drama will concern its lingering effects on the nation and Bush’s presidency. It has always been in the cards that if Gov. Bush won a narrow victory over Vice President Al Gore, there would follow a vigorous campaign from the Left to de-legitimize the Bush victory. All along there was the prospect that Bush’s victory would be said to have been based on a deception, or on his winsome personality, or on the Nader vote, or on Gore’s defective campaign, or all of these factors.

Now, with Bush winning narrowly in the Electoral College while losing the popular vote, the campaign to de-legitimize his election will take on a ferocity not seen since the election of 1860. Now it will be said that Bush didn’t even win. He will be called "the accidental president." The talking points for this strategy were already taking shape while the legal machine was still in motion, and it explains why Congressional Democrats were willing to go to the bitter end with Gore: the more damage done to Bush, the greater advantage Congressional Democrats might be able to gain in the next Congress.

There is reason, however, to think that this campaign to de-legitimize Bush will fail and perhaps even backfire on Democrats, and there are a number of grounds for taking satisfaction with the outcome of this affair. Gore and his retinue embarked on a clear strategy to marshal public opinion behind that claim that since they won the popular vote, they should be regarded as the winner in Florida, too. Bill Daley claimed this explicitly the second day after the election. Something like this worked during the impeachment controversy, when confused and contradictory public opinion, combined with the mild abrasive of time, obscured the legal and constitutional issues at stake. (It helped to be able to turn that episode into a sex scandal—a gambit not yet tried with Florida, though "pregnant chad" came close.) Then came the first surprise: the Democrats’ media cheerleaders at the New York Times, Washington Post, and elsewhere not only refused to take up the cry, but
came down very hard on the Gore campaign for their "poisonous" rhetoric. Daley quietly disappeared from public view.

Second, the public didn’t buy the Gore line for a moment, and Gore’s unfavorable ratings, according to the most recent Gallup poll, have risen to an all-time high. The American people may not like or understand the constitutional logic of the Electoral College, but they respect it. The American people’s reverence for the Constitution runs deep—as the Founders intended—and polls showed that healthy majorities regard Bush as the winner because the election followed constitutional form. Conservatives ought to welcome Senator-elect Hillary Rodham’s proposal to debate an amendment to abolish the Electoral College. It will reveal explicitly why liberals don’t like the Constitution. The amendment also has about as much chance of succeeding as Hillary’s health care plan.

Third, unleashing squads of lawyers on national television has revealed the innermost character of modern liberalism—the rule of legal casuistry by lawyers and judges. The sight of lawyers lined up end to end, and the Florida Supreme Court’s egregious recount opinion, has ignited public reflection and argument about the scope and limits of judicial activism in American government. The role of the judiciary in affecting the outcome of this election may prove to be the Waterloo for judicial activism, with the likes of Larry Tribe and Alan Dershowitz finally being brought to heel.

A clear thread connects these three observations: Since the Progressive Era, liberalism has regarded the Constitution as an obstacle to what it wants to do with government, and the course of modern liberalism has been finding countless ingenious ways to circumvent the meaning and intent of the Constitution. Their favorite has always been the doctrine of the "living Constitution," which means in practice that the written Constitution is dead. With this election, the Constitution became an obstacle to the White House, and liberals felt no hesitation about trying to override it here, too.

Which is why the parallel to the close and bitter election contest of 1800—which several observers, including myself, have invoked—is a noble lie. On the night the Florida election result was finally certified, Gov. Bush invoked Jefferson’s famous remark in his first inaugural address that "every difference of opinion is not a difference of principle." This was true in 1801 because the losing party—the Federalists—respected and revered the Constitution. But today’s liberals don’t respect and revere the Constitution, and as such our differences of opinion are a difference of principle.

One hesitates to invoke the term "prudence" when talking about the Bush family, but it will be prudent for the next President Bush to continue to embrace the noble lie of Jeffersonian unity. By doing so he can appeal to those Democrats who retain a respect for the Constitution, and divide his opposition. And then we’ll see which faction appears illegitimate to the public.

Steven Hayward is Senior Fellow at the Pacific Research Institute in San Francisco, and an Adjunct Fellow of the Ashbrook Center.

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