It must be hard for George W. Bush. He's always had things handed to him by his father's friends. And now his father's friends have handed him the White House. An aristocrat who is related to five kings, W. has inherited his office without the trouble of counting the votes. It's nice that George has finally found something that he wants to do, but it's a real problem for the rest of us. We are compelled to face the problem of living in a country without a legitimate government.

What do we do? Do we break laws? Do we burn things down? Well, no. Society needs institutions, and this isn't like recess where the rules have been suspended for a while. We'll pretend that the institutions are in effect until such time as George W. gets out of Al Gore's house and we can put the institutions back into effect in a legitimate way.

Legitimacy is a tricky thing. Nobody has the power to make a country's political institutions legitimate, because anybody who did have that power would already be the country's legitimate institutions.

That's why we make myths about the Founding Fathers, and why we treat the Constitution as quasi-sacred. Otherwise every next question of legitimacy would initiate a regress that could never stop. And that's the regress that faces us now: the Supreme Court, ultimate giver of law, has shown itself to be lawless. We have no appeals. So lots of people have chosen to pretend that something legitimate has happened, since the alternative -- acknowledging reality -- seems so much worse.

What, then, is legitimacy? It has two aspects, which we might call subjective and objective. An institution is subjectively legitimate if its putative constituents regard it as legitimate. Government is by the consent of the governed. But no institution is legitimate unless it is also objectively legitimate, meaning that it conforms to norms of justice and rationality such as the rule of law. Of course, no absolute authority exists to settle disputes about the objective aspects of legitimacy, because any authority that does claim to settle such disputes must itself be legitimated. The point, rather, is that individuals and minorities must always have recourse to claims about objective legitimacy. Subjective legitimacy is intrinsically fuzzy, since it is not violated if a single nut doesn't go along with the consensus. So the goal of the US civil rights movement, to take an example, was to deprive an unjust and irrational institution of its legitimacy through appeals to objective norms of justice and reason, and to wrap itself in the founding myths of the country in doing so.

That's why I found striking the recent news that Otpor -- the Serbian student movement aimed at subverting the late government of Slobodan Milosevic -- was largely trained and funded by the Republican Party and supplied with frequent polling results by Republican pollsters, and especially that the training consisted largely in lessons on the philosophy of nonviolent resistance, taught no less by a military guy.

http://washingtonpost.com/wp-dyn/articles/A18395-2000Dec3.html

The first principle of nonviolent resistance, according to the lessons that Otpor learned, is to take away the authority -- the legitimacy -- of the institutions. In Otpor's case that legitimacy was hanging on a thread already, thanks to years of corruption and vote fraud, and so their main job was to make this fact visible with images and slogans and wait for the legitimate opposition to get organized. (It was the Democratic Party and its trainers and pollsters that helped with this.)

The irony here is deep. Nonviolent resistance in the United States, of course, originated with the aforementioned civil rights movement, which got it partly from their own reading of Christianity and partly from Gandhi. The racist establishment the civil rights movement was fighting was at that time affiliated with the Democratic Party, but it has since changed over to the Republicans, who today are intertwined with scores of think tanks devoted to curtailing the enforcement of civil rights laws, all of which are applauding John Ashcroft's recent appointment to attorney general.

The Republicans, though, have considerable experience undermining the legitimacy of democratic institutions. They do this, as is their habit, through projection: by issuing false claims that non-Republican office-holders are themselves undermining the legitimacy of the institutions in which they hold their offices. Thus, for example, the false accusations of judicial activism against the Florida Supreme Court or the attacks on the various Florida canvassing boards, all defended on the most irresponsible grounds. And the pattern goes back many years, for example to the thoroughgoing smear campaign against Bill Clinton, Janet Reno, and Al Gore. It is a dangerous game, and it is now coming back to haunt them.

It is dangerous for a deep reason, that institutions can only remain objectively legitimate if appeals to reason have any effect in the society. By using their vast access to the media to promote a jargon that is fundamentally irrational, and to use that jargon to decimate rational thought in every sphere of public life, the right has created a mirror game in which everything is turned backward, and in which the society's institutions could not possibly be legitimate. Undermining legitimacy is central to the jargon: people who differ with the far right face twisted accusations that there are doing so illegitimately, for example being called "biased" or "partison" even if they were not speaking in any capacity to which those words could be applied.

Likewise, members of the far right took over many Usenet newsgroups by issuing similar accusations against anyone who disagreed with them, even to the point of filing bogus complaints with their opponents' ISP's or employers. Principled conservatives presumably regret all of this, and refrain from using the jargon themselves. But thus far they don't seem unhappy about it.

-- Phil Agre (red.rock@eater.news), January 06, 2001

Answers

Troll Alert !! just call them monica

-- All american (Red Johnson@member.net), January 06, 2001.

Nobody's gonna read all this crap Phil. If you've got something to say just say it.

-- Carlos (riffraff@cybertime.net), January 06, 2001.

This is a silly argument...

If we boil down the turgid prose, we find that Phil feels our American "institutions" are illegimate because of the recent presidential election and the subsequent actions of the Supreme Court. Not surprisingly, he claims there is this national state of denial about the entire process.

Horse fritters.

Only about half of Americans cared enough to vote in the election. The race was between two centrist candidates. The results of the election created the most balanced legislative branch in modern history. Despite a few "dog and pony" shows, the legal process after the election worked.

Because Phil doesn't agree with the Supreme Court decision, he calls the court "illegitimate." Because he doesn't like the president- elect, he calls all of our institutions illegimate. Of course, the legitimacy of these institutions can be "restored" by putting a democrat in the White House.

This is a bad argument peppered with the jargon of the radical left. And like most of the manifestos, it is full of sound and fury signifying nothing. Let's see, Phil, how many people you can muster in a march on Washington to demand Bush step down. Let's see how many Americans feel the Supreme Court is illegitimate. Here's a helpful suggestion... if you are going to lead a nonviolent uprising of the populace, you are going to have to write your polemics in a more readable style.

-- Ken Decker (kcdecker@att.net), January 06, 2001.

-- Cherri (jessam5@home.com), January 06, 2001.

"Let's see, Phil, how many people you can muster in a march on Washington to demand Bush step down."

Ohhh .... how about 500,000 or more?

-- Watch the News on Jan. 20 (huge@rally.dc), January 06, 2001.

All the really detailed and intelligent legal analyses I've read of the U.S. Supreme Court ruling showed that it was indeed "lawless" -- they couldn't find any legal precedent to hang it on. It was a shabby and ill-thought-out piece of work that American history and legal scholars will be decrying long after George Bush is dead.

This isn't a question of Agre "not agreeing" with the Supreme Court -- he simply acknowledges what intellectually honest lawyers and scholars have recognized -- that the ruling was in fact illegitimate because it was based on no legal precedent and was irrational, unfounded in reason.

When Supreme Court justices undermine history, reason and logic in ruling simply to ensure that their political candidate is ushered in the back door of the Oval Office, that is the time that the rest of the country -- those who are not somnambulistic anyway -- wake up and cry foul.

-- Booth Tarkington (plu@to.crat), January 06, 2001.

I think you mean "both" analyses, Booth. You obviously have not read widely because there is no consensus about the Supreme Courts actions. Legal scholars will be bickering about this for years...

-- Ken Decker (kcdecker@att.net), January 06, 2001.

You obviously have no read widely because there is no consensus about the Supreme Court decision.

Justice Unrobed The Supreme Court, always accused of being political, now has to face the fact that it looks downright partisan

Evan P. Schultz Legal Times

December 29, 2000

Think of a hard-fought campaign in which a Republican candidate wins a statewide election by a razor-thin margin of, at most, a few hundred votes. The apparent loser wants the votes recounted to include ballots that might have been incorrectly filled out. The tentative winner goes to federal court to stop the recount in its tracks. On appeal, a federal judge dissents from the decision to uphold a preliminary injunction barring the recount. He excoriates his colleagues: "This high level of federal activity seems unnecessary and, therefore, improper. ... Federal courts are not the bosses in state election disputes unless extraordinary circumstances affecting the integrity of the state's election process are clearly present in a high degree."

A quote from a justice dissenting from the U.S. Supreme Court's decision that for all practical purposes anointed George W. Bush as our next president?

Nope. The words come from Judge J.L. Edmondson, who sits on the 11th U.S. Circuit Court of Appeals. He was dissenting in Roe v. Alabama, a 1995 case dealing with the election of two Republican candidates for Alabama chief justice and state treasurer. But his counterparts on the high court might take a lesson from him.

Don't misunderstand: Edmondson is not cut from the same cloth as Justices John Paul Stevens and David Souter, although all three were appointed by Republicans. Stevens and Souter now inhabit the left wing of the Supreme Court. Edmondson is a hard-core, meat-eating conservative, with a reputation for staying true to his roots while serving on the bench.

Yet he is also worlds apart from the four justices who, like him, owe their current jobs to Ronald Reagan. Chief Justice William Rehnquist is a perpetual critic of federal overreaching. Justice Antonin Scalia prides himself on being a diehard protector of the states. And Justices Sandra Day O'Connor and Anthony Kennedy are conservatives who have built their reputations by using their constitutionally insulated judicial power in pursuit of moderation. Unlike Edmondson, they all seem to have abandoned their principles.

A HARD CONSISTENCY

In Roe, Edmondson did not consider anything but the consistency of his principles. As a conservative and a Republican, he presumably takes states' rights seriously. And the two judges who made up the majority in that case are also conservatives appointed by Republican presidents. But Edmondson refused to use their votes as cover for deviating from his heartfelt convictions.

Now, think about the post-election mess in Florida, which, coincidentally, comes within the jurisdiction of the 11th Circuit. Two of the many election cases made it to the federal appeals court. Those two were seeking to stop manual recounts that Al Gore and his backers wanted. The 11th Circuit refused to grant the stay. And though he ended up siding with more liberal and moderate members of the court, and though other conservative judges on the court took issue with his views, Edmondson again stood firm and stood by his principles. He joined the majority in both cases, without even writing a concurring opinion.

Finally, think of how the Supreme Court handled the case of Bush v. Gore, which forced the vice president to concede the election. Five justices, all conservative, voted to stay the recount that Gore had requested. Four justices, all liberal, would have let the recount proceed. Even though the conservatives tend to favor states' rights, which would make one think that they would want to let Florida sort out its own election law. And even though the liberals haven't been shy about letting the federal government intervene to correct what they see as grievous wrongs, which makes their current criticisms about federal government overreaching sound a bit hollow.

Is it fair to question the justices' impartiality in Bush v. Gore? Did the way in which the justices decide this case justify criticism beyond that which attends any closely divided decision?

No (sane) person who disagrees with a Supreme Court decision thinks that the justices are trying to bend the law to help themselves or their friends. Chief Justice Rehnquist may have written the 1995 decision in United States v. Lopez, striking down a federal law prohibiting guns in the vicinity of schools. But only a certifiable lunatic thinks that Rehnquist wrote that opinion because he enjoys packing heat near schoolyards.

Nor is the problem simply the common complaint that the justices are being result-oriented in their decisions. We know there are human beings beneath the robes, who might let their personal beliefs about what constitutes good public policy affect their legal holdings. For instance, Justice Ruth Bader Ginsburg has spent her life fighting to advance the rights of women. So even if some disagree with her legal analyses, no one is particularly surprised when she tries to find in the law some means to stop gender-based behavior she finds abhorrent - - for instance, the decision she wrote for the Court prohibiting the state-funded Virginia Military Institute from refusing to admit women.

So we expect that our justices might be political with a small "p." Which is to say, their decisions are influenced by the debates that pervade our democracy. But we don't expect them to be political with a capital "P." Which is to say, we don't expect them to be partisan in a way that tramples on the law to help the parties or politicians the individual justices support.

APPEARING IMPROPER

Then, were they partisan?

Consider Justice Souter. In the spring, he stated that the Court's composition hung on the results of the election and implored his audience to "vote carefully." So what was on his mind during arguments in Bush v. Gore?

And look at Justice Scalia. In the opinion that accompanied the stay to stop the manual count, he wrote: "The counting of votes that are of questionable legality does in my view threaten irreparable harm to [George W. Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires."

Compare that with what Judge Edmondson wrote regarding recounts in his 1995 dissent: "I believe everyone involved in this election dispute would understand that a court's allowing the simple adding up of which of the contested absentee votes went to which candidate would not be the same thing as saying that the contested votes will have value ultimately, as a matter of law, for deciding the final, official outcome of the elections."

Also compare Scalia's words with what the 11th Circuit wrote in its majority opinion regarding the Florida recounts: "Plaintiffs cannot demonstrate a threat of continuing irreparable harm. ... Governor Bush and Secretary Cheney ... are suffering no serious harm, let alone irreparable harm. ... Moreover, even if manual recounts were to resume pursuant to a state court order, it is wholly speculative as to whether the results of those recounts may eventually place Vice President Gore ahead."

Again, were the justices partisan? Beneath the legal reasoning, all justices voted to put in the White House someone with the power to appoint their ideological soul mates to the bench. So just like the ballot counting, we'll never trust the result. That's the reason judges try to avoid even the appearance of impropriety.

Only by achieving consensus can the justices eliminate taint in a case like this. That's what happened in the other recent case where the Court essentially decided the presidency. In Nixon v. United States (1974), the justices voted 8-0 that Richard Nixon had to submit incriminating tapes to the Watergate special prosecutor. Rehnquist, then an associate justice, recused himself -- a move he took presumably because he had worked in Nixon's Justice Department, but that nonetheless looks like foreshadowing in light of last week's decision.

In public statements last week, both Chief Justice Rehnquist and Justice Clarence Thomas insisted that partisan politics play no role in influencing decision-making at the Court. "I've been here nine years. I haven't seen it," said Thomas. "Absolutely, absolutely," Rehnquist later agreed.

I wonder what Judge Edmondson would say.

-- More Food for Thought (court@disgraced.itself), January 06, 2001.

Ken:

You make a point I notice everyone is extremely careful to ignore -- that if the USSC had decided for Gore, not one of these liberal writers would have had the slightest complaint about the USSC picking the president. It's more and more obvious that these so-called legal scholars are NOT upset because the wrong institution selected the president, but becuase that institution picked the *wrong guy*! Every one of these guys says that by choosing Bush, the justices usurped political powers. And by implication, if they'd chosen Gore, they wouldn't have?

Oops, let's all pretend not to notice this. Because as soon as we do, all that's left is poor losers without a principle to stand on.

-- Flint (flintc@mindspring.com), January 06, 2001.

I hope all of the "legal scholars" who lately have been coming out of the woodwork belong to a good union. They have been putting in a lot of overtime writing this pablum, and it would be a shame if they didn't get compensated for it.

-- Dr. Pibb (dr_pibb@zdnetonebox.com), January 07, 2001.

Flint,

Intellectual honesty is not popular with staunch liberals (or conservatives). This was my point on another thread about discrimination. Had Gore won, the liberal pundits would have sung hymns of praise to the justices. So it goes.

-- Ken Decker (kcdecker@att.net), January 07, 2001.