Standard liberal laments about the outcome of last year’s US presidential election represent it as an outrage to the democratic law of the land. Thanks to vicious manipulation of recorded ballots by Republican functionaries in Florida, brazenly backed by the conservative majority of the Supreme Court, Bush stole an election rightfully won by Gore. Such has been the refrain of Democratic loyalists and journalists up and down the country. At the higher reaches of this band of opinion, however, sheer denunciations of electoral robbery are sublimated into a loftier case. Among constitutional theorists, Bush’s victory is pictured not so much as straightforwardly illegal but rather as morally and historically improper—a violation not of the letter, but of the spirit of the Constitution. Here a mystical ideal of ‘true’ American democracy serves to blur the boundaries between this imaginary construct and the actually existing system.
The most extravagant version of this argument was offered by Bruce Ackerman, a Democratic blow-hard from Yale, in an essay entitled ‘Anatomy of a Constitutional Coup’ (London Review of Books, 8 February 2001). Ackerman blithely announces the existence of an unwritten—‘living’—Constitution, superior to the dead letter of the codified document itself. Whatever the facts of the quadrennial gatherings of the nation’s Electoral College, the former has created a system in which ‘Americans think and act as if they choose their President directly’. In 2000 this invisible text interacted, like some pantomime ghost, in ‘unpredictable and awkward ways’ with the visible details of the law. The living Constitution awarded the election to Gore. But in a move that amounted to little less than a putsch, Bush substituted for it a corpse. In Ackerman’s words, ‘Bush’s weapon was the written Constitution’. What could be a more underhand trick? Won in such a nefarious arena, Republican victory inevitably came ‘at grave cost to the nation’s ideals and institutions’. Such patriotic posturing is an extreme, but by no means isolated example of aggrieved partisanship cloaking itself in tones of high legal dudgeon. In the New York Review of Books (‘A Badly Flawed Election’, 11 January 2001) the Polonius of liberal jurisprudence, Ronald Dworkin, while admitting that Gore would not necessarily have gained from further recounts, nonetheless pined for ‘a national affirmation of democratic principle’ that would have allowed them to continue. ‘Those of us who have been arguing for many years that the Supreme Court makes America a nation of principle have a special reason for sorrow,’ he intoned pitifully.
Amidst this kind of vapouring, Richard Posner’s analysis of the Presidential election of 2000 comes as a gust of fresh, cold air. A tough-minded conservative, appointed Federal Appeals Judge by Reagan, Posner wastes no time on pious daydreams of what American democracy should be like. The thrust of his book is to describe, for the most part with steely accuracy, what it actually is: a shallow and restrictive system, which he commends for its limitations. Presidential elections in the US are not, he points out, some magical transubstantiation of the people’s will, but a mundane mechanism allowing a minority of the population—barely 17 per cent of which voted for either Gore or Bush—to ‘exercise a mildly controlling function’ to ensure an orderly succession of government. The people do not rule in any representative democracy: their elected officials do. Hence, he notes with satisfaction, ‘we can be enthusiasts for democracy without having to prate about self-government or the popular will’. In America, Posner sardonically remarks, politicians are unlikely to be typical of those who vote for them. It is ‘the glib, the clever, the shrewd, the handsome, the charismatic’—here, though not elsewhere, he remarkably omits the rich—who are likely to dominate in electoral competitions, constituting a political class of their own.