Article II

[Michael McConnell]

Sandy Levinson's extemely thought-provoking comment deserves a response. I
will reproduce part of it here:

> If we are in a "constitutional crisis" right now (something I
> continue to
> doubt), I think it is revealed most deeply in the felt
> hollowness of most
> of the "legal" arguments, manufactured for the occasion in
> order to serve
> political ends (or, what is much the same thing, sincerely believed by
> persons who are incurious about the fact that their arguments
> just happen,
> as if by an invisible hand, to fit their political
> preferences).  If the
> Court ends up with a 5-4 split, can anyone believe that the
> rhetoric of the
> "rule of law" (instead of the "rule of men and women") will have much
> remaining credibility?  How will "we" (whoever that is, whether law
> professors, practicing lawyers, or ordinary citizens) go on
> from there?
>
> One other quote from Constitutional Faith, this one from Hegel (a
> philosopher I am not ordinarily given to quoting):  "How
> blind they are who
> may hope that institutions, constitutions, laws . . . from
> which the spirit
> has flown, can subsist any longer; of that forms in which
> intellect and
> feeling can now take no interest are powerful enough to be
> any longer the
> bond of a nation!"  As I read learned discussions of what
> constitutional
> text written in 1787 and 1804, or a federal statute written
> in the late
> 19th century (and interpreted in a case during the 1880s),
> with regard to
> governing our country in 2000, I am put in mind of a tribe
> reading sheep
> entrails.  Moreover, the notion that the nine folks on the
> Supreme Court,
> leading their spectacularly sheltered lives bereft of
> experience within the
> political world, are thought to be the best persons to
> resolve this dispute
> is just bizarre, unless one has a literally incredible amount
> of faith in
> the priests who purport to be able to divine the sacred
> texts.  Thurman
> Arnold should be alive at this hour.

At first reading, I thought Sandy was exactly right. He is certainly right
that the two camps are seeking snippets of positive law that might support
their positions, and there does not seem to be any place for consideration
of what is "right." But the conclusions I draw from this fiasco are almost
the opposite of Sandy's.

The details of election law are inherently technical; they are ontologically
incapable of having "spirit" in the Hegelian sense. It would not help if we
treated the right to vote as a federal constitutional right; it would not
help if we looked to the spirit of the laws; it would not help to have
Thurman Arnold whispering in our ears -- because these sources have nothing
to say about how the technical rules of voting should be set up. The only
point of "justice" is that we should all be bound by the rules that were
established before the controversy arose, that is, before any of us knew
which side would benefit from which rule.

In the abstract, there is no "right" answer to questions like: (1) how much
time should counties have to count ballots? (2) what markings or scratchings
should be counted as a valid vote? (3) what is the meaning of "inhabitant"?
Behind a veil of ignorance, most of us would have no strong opinion about
these issues. We might have guesses about what rules would be fairer, but
there is no reason to think that any set of rules would favor one side or
the other. A generous view of recounts apparently benefits Bush in New
Mexico but Gore in Florida. A hypertechnical view of legal requirements
benefits Gore in Seminole County and Bush in Palm Beach. The revised, Nov.
26 deadline set by the Florida Supreme Court looked as if it favored the
Democrats, but turned out to favor the Republicans. The Democratic
preference for manual recounts is entirely the product of the happenstance
that punch card voting is more heavily used in Democratic counties than
Republican counties in Florida; it could just as easily been the other way
around.

Right now, we are outside the veil of ignorance, and there is no way to put
the veil back on. Both sides have arguments about fairness; both sides have
arguments about positive law sources; and neither side is consistent about
the arguments it is willing to make. Moreover, our decisionmaking
institutions -- county election boards, secretaries of state and attorneys
general, state courts, state legislatures, and even the Justices of the
Supreme Court (which by amazing coincidence seems to be dividing along
liberal-conservative lines on an issue that seems to have no connection, or
even an obverse relation, to liberal-conservative differences of principle)
are no less "at sea" than the lawyers for the parties. Same for us
academics.

Sandy seems to suggest that we should rely more on the methods of legal
realism and "spirit," and less on what he calls the "sheep entrails" of
statutory text, history, and precedent. I think the opposite. This affair
confirms the virtue of deciding cases according to authorities that were set
before anyone knew how they would affect this particular election.  The
stuff of the past -- text, legislative history, precedent -- is the closest
thing we have to a veil of ignorance. The great problem here is not that we
are looking for answers in the wrong places (positive law rather than
"spirit") but that our institutions have been so incredibly sloppy in
drafting the laws, and so willing to overlook the authority of text,
legislative history, and precedent when it suits them.

A working definition of "legal realism" is "decide all cases with full
knowledge of who gains and who loses." I say: a nation is blessed when it
has a body of rules, made in the past without knowledge of their effect on
the issues of the day, on which we can rely. The problem in Florida is that
the rules were not clear enough, and too many people on both sides have been
willing to use the tools of legal realism to undermine the ones we have. In
the future, we can rewrite the laws and attempt to eliminate the ambiguities
(as they thought they were doing back in 1887). Right now, the best we can
do is to pore over the positive law sources, and try to read the entrails as
best we can.

-- Michael McConnell