Donald J. Devine

Democracy by design
December 17, 2000

With political science dominating law throughout the controversy, the U.S. Supreme Court sagely skirted a direct legal solution and, by default, allowed the political branches to throw the presidency to George W. Bush – pretty much the way the Constitution intended. At the end, the vote-counting morass was not a tragedy but the world’s best democracy lesson.

America’s Founders anticipated just about everything. Ties need to be avoided, so the Electoral College method of counting by states makes them unlikely. In the event of a tie with in the state, the state legislature settles it. If all of that fails, the House of representatives, voting by state, picks the president and the senate selects the vice president. It is when things get close like this that it is hard to hide the fact that the Founders’ rules are not "democratic" in the simplistic sense of counting the popular votes. Unelected courts and even local election officials – to a degree impossible for foreigners to comprehend – play major roles. Once the vote is cast, the "people" are on the sidelines. Holding another election hardly makes sense, few like the obvious irrationality of tossing a coin (although the ancient Greeks did), and the Florida Supreme Court dispelled any lingering dreams of an "impartial" judicial resolution. So, today, as with the Founders, the legislature – being closer to electoral legitimacy than a court and being more logical than a coin – is forced to break what is in fact a tie.

Worshiping "democracy" is a rather recent thing. The Founders specifically created a Constitution to frustrate direct democracy, with political checks and balances limiting branches and levels of government. Democratic idolatry only began in the late 19th century with progressive intellectuals like John Dewey, Herbert Croley and Woodrow Wilson. They tried to make government more "efficient" by overruling slow-moving legislatures and "parochial" local institutions, first with expert, centralized, and bureaucratized executives – and when that failed to solve such problems as poverty and black disenfranchisement – by even more isolated and powerful courts. Promoting democracy by taking power from elected politicians always seemed paradoxical to conservative constitutionalists but the myth of national executives and courts making final decisions in the name of the people has become widely accepted today.

So president claimant Al Gore was able to assert that he won the support of "the people" and, therefore, deserved the presidency. Forget that it was a plurality and, when one considers the total eligible population, he won the vote of only a fourth of the "people." What makes it right for someone to win by less than one-tenth of 1 percent among the half of the population that bothered to vote, anyway? Winston Churchill responded that democracy was the worst form of government – except for all the others. Without a government of rules, there is a nasty war of all against all, proven in the civil bloodshed, terrorism, riots, maiming and genocide that take place throughout the world. Elections are a peaceful means to settle differences. But no one would freely give an opponent total control of one’s life just because he won a handful more votes if they did not have some guarantees this power would not be abused. Constitutions make voting safer than fighting. Yet, they cannot guarantee good or even popular results.

More than 200 years ago, the mathematical genius the Marquis the Condorcet proved the political science theorem that there is no necessary relationship between the things people want on specific issues and how they vote in elections. This was no more congenial then than now since he lost his head in the French Revolution. Only a market – with its wide array of alternatives – can guarantee that a person’s first choice will be fulfilled. Unlike substitutable products, there can be only one president. So, the founders limited the functions of government, divided power and used elections as the best-worst tool to make decisions.

Constitutions are fragile things. That is why make-it-up-as-you-go-along legal interpretations – such as the Florida Supreme Court arbitrarily moving the date for final results against the clear reading of the law – are so destructive. Legislative decisions are expected to be political so they do not undermine law, which is what makes that choice by the Supreme Court so sound. In the most comprehensive study of the matter, the authoritative Freedom House found 119 countries today hold "democratic" elections. What counts is supporting constitutional rules of law even when they seem less than logical. That is a lesson well worth the Florida mess.