The Will of the People (2d Request)

[Andrew Koppelman]

I agree with Randy Barnett that the "will of the people" is an incoherent
concept.  The reasons were well explained by Joseph Schumpeter long
ago.  There is no coherent will that "the people" can share.  Rather,
"though a common will or public opinion of some sort may still be said to
emerge from the infinitely complex jumble of individual and group-wise
situations, volitions, influences, actions and reactions of the "democratic
process," the result lacks not only rational unity but rational
sanction."  Joseph A. Schumpeter, Capitalism, Socialism, and Democracy 253
(3d ed. 1950).  Schumpeter therefore proposes the following, more modest
definition: "the democratic method is that institutional arrangement for
arriving at political decisions in which individuals acquire the power to
decide by means of a competitive struggle for the people's vote."  The
people influence political decisions only by voting in elections, and "do
not control their political leaders in any way except by refusing to
reelect them or the parliamentary majorities that support them."  In a
democracy, the people get to decide, in essence, whether to replace the
current set of oligarchs with a different set.  The people cannot possibly
do more than this to control government, since "the electoral mass is
incapable of action other than a stampede."  Id. at 269, 272, 283.

What we can have is settled electoral laws and practices.  Whoever prevails
in the contest for votes under existing rules gets to govern.  And that
person can invoke the useful fiction that his selection represents "the
will of the people."

The most worrisome thing that has happened since the election, the thing
that threatens lasting damage, is that a new practice has entered into the
lexicon of electoral strategies:  if the vote count is incomplete but you
are ahead, then gum up the works and run out the clock.  This strategy
entails that you can win an election even if you don't get the most
votes.  If you can obstruct the vote-counting machinery for long enough and
prevent the other guy's votes from being counted, then sooner or later the
other guy will get blamed for prolonging the delay, even if he in fact got
more votes.  It cannot be ignored by future strategists, since in all
likelihood it has given Bush the presidency.

The objection holds even if, as seems possible, Bush did receive the larger
number of votes.  The value lies in the formality of the procedure as well
as the outcome.  The problem is not that the will of the people has been
thwarted, but that, by a range of strategies (including whatever pressures
were brought to bear on the Miami board, although his legal strategies of
delay may have been the real cause of the outcome there - as I've said
before, there is no way to know), the vote count was prematurely halted and
will probably never be completed.

The trouble is not that Bush lost.  We will probably never know whether he
lost.  The trouble is that Bush was unwilling to accept the danger that, if
all the votes were counted, he would lose.

It matters a great deal how we write the history of what has
happened.  Just as we object to the lynching even of a defendant who is
manifestly guilty, so we ought to object to the theft of an election even
by the person who got the most votes.  What Daley did for Kennedy in 1960
was pretty bad, but there is now a consensus that that kind of thing is
illegitimate, and there's not much danger of it happening again.  It is
important that Bush's shenanigans be remembered the same way.  I am well
aware of the dangers involved in claiming publicly that a newly elected
president has stolen the election, but there are also dangers on the other
side, in accepting this kind of behavior as a legitimate path to the
presidency.


________________________________________

Andrew Koppelman
Associate Professor of Law and Political Science
Northwestern University School of Law
357 East Chicago Avenue
Chicago, IL  60611-3069
(312) 503-8431
mailto:akoppelman at northwestern.edu
________________________________________