WEDNESDAY DECEMBER 13 2000
Leading article
America's lasting lessons in democracy
SIMON JENKINS
No, the next occupant of the Oval Office will not be a “lame duck” President of the United States. He will just be the next President. No, he is not being chosen by a handful of judges against the votes of millions of Americans. He is being chosen by millions of Americans in a contest validated by a handful of judges. No, the process is not a shambles. It is the triumph of dignity over shambles.
For a real constitutional shambles turn rather to the “United States” of Europe. This week Europe showed itself incapable of resolving a federal dispute in a remotely dignified manner. At Nice, the self-interests of states swept aside any half-formed political framework in a squabble worthy of the Goths and Vandals. America’s dispute has been conducted amid the courtesies of a public courtroom. Europe’s arguments, some pettily bureaucratic, some vitally important, were half-resolved by backstairs intrigue, horse-trading, secrecy and spin. Never can the democratic superiority of the American Revolution have been so publicly demonstrated.
Self-governing peoples, so historians claim, never go to war with each another. Nor should they criticise each other’s Constitutions. All are uniquely imperfect. America’s rules for adjudicating close-call elections are different from Europe’s. They were designed in contradistinction to the corrupt autocracies of 18th-century Europe. They vested ultimate discretion not in a monarch or state president but in a meticulous process monitored by judges.
No process in politics is pure. Even judges must be appointed by someone. But the institution of the Supreme Court is trusted by a nation schooled in civic law. Even when, as now, the court’s political integrity is sorely tested, its decisions are respected and do not instigate riot or rebellion. The court embodies the Constitution, as the President embodies the State and the Congress the Union.
Britons have been having much fun at America's expense. They have ridiculed Florida’s pregnant chads and voting machines. They have derided the practice of electing public officials, and deplored the legal knights errant who sue with the abandon of medieval champions at a tournament. How much better is good old Britain, where it needs only Jack Falstaff and Justice Shallow to prick names on a list and the people burst out with the national anthem.
America is passing through the most dangerous crisis known to political history, a dead-heat in a contest for power. Its federal Constitution is on parade, notably its protection of the rights of states. These rights are designed to reflect internal diversity and offer a bulwark against central authority. The electoral college and the composition of the Senate is thus skewed in favour of smaller states, to guard regional minorities against majority dictatorship.
The current Supreme Court process has seen this federalism tested close to destruction. As a “subsidiarist”, I would support Florida’s right to decide for itself whom to send to the electoral college. If it sent 25 chimpanzees chosen out of a hat, that would be its own business and no business of Washington judges. True, the partisan nature of the state judiciary has been painfully exposed with each challenge to the validity of individual votes. But that is the system.
Leave it to Florida, said the federal Supreme Court last week.
Such is the fascination of this argument, that I have changed my mind. If the “spoiled” ballots were indeed irregular, then Florida’s decision to count them was unfair not only to George W. Bush but to thousands of spoiled and uncounted ballots elsewhere in the state. Now to count only some previously rejected votes, and thus to reverse Florida’s already declared result (for Mr Bush), would pollute the entire election. Fair procedure in Florida was thus a federal concern. It was right for the highest court, the “reluctant constitutional fire brigade”, to intervene at the weekend.
The Supreme Court appears to be as evenly split as the Florida court, as Florida’s voters and as the entire American electorate. So what? Such are the centripetal forces of modern democracy that every contest is balanced. Every strategist seeks to render any difference invisible or at best cosmetic. We are left with flips of coins, nuances of argument, penalty shoot-outs. In this circumstance, all democratic leadership becomes a form of coalition. If it is sometimes wounded and bleeds, the scar soon heals. Bill Clinton’s second term was supposedly wrecked by the Lewinsky affair. He now seems a presidential giant. The system is bigger than the man. That is the virtue of a sound Constitution.
Britain too has a “presidential” electoral college, called the House of Commons. It too may not reflect the popular vote. In 1951, there were 250,000 more Labour voters than Conservative ones. Yet Churchill had a Commons majority of 17 and became Prime Minister. In 1997 Tony Blair won just 43 per cent of the votes cast. Yet his was declared a stunning “landslide” and he proceeded to form the most centralised Government in peacetime. A Florida voting machine is a precision tool against the democratic vagaries of Britain’s constitution.
When Britain last had a close call in its electoral college, chaos ensued. As the Callaghan Government of 1976 moved into minority, it twisted and schemed and declared itself “prostrate” before its union backers. The Liberals walked in and out of secret cabals. The half-dead were dragged from hospital to vote. The Scots were left over-represented and the Northern Irish bribed with five extra seats, all to keep Labour in power.
As for granting “states rights” to subsidiary components of the United Kingdom, Downing Street does not know the meaning of the term. No sooner had it established devolved assemblies for Scotland, Wales and London than it promptly sought to gerrymander them back under its control. Sub-national democracy in Britain enjoys no constitutional safeguard. No court defends local government. The head of state is a front for the Prime Minister, with the legislature as his shop window. The Cabinet will this week decide how many new houses, to the nearest unit, it will allow on every square mile of every county in England. Not even Lenin assumed such ubiquitous potency. The whim of Downing Street has taken to itself the same untrammelled power as had the Georgian courtiers. It was against just such power that the American colonies rebelled and against which the American Constitution is a standing protest.
And the rest of Europe? The European Union has been trying to define its own “states’ rights”, whether as federalism or a Europe des patries, for almost half a century. It has plenty of experience: Germany, Italy and Spain are all federations. It has plenty of motive, to avert war, promote trade, increase taxes and protect markets. Yet the institutions of European co-operation, essentially French in character, have proved unsuited to proper federation. They are not truly constitutional, but rather self-aggrandising, secretive and corrupt. The Nice summit was their nadir.
The essence of a stable federalism is the entrenchment of the rights of subordinate states and provinces. Their peoples must have security in the scope of their autonomy. They must know where they stand. The twice-yearly battle, conducted amid some extravagant junket, gradually to strip them of power and impose on them more taxes and bureaucracy is the antithesis of federalism. It is more akin to imperialism. For two decades, the European Union has promised a list of constitutional safeguards, a charter of subsidiarity. That promise is as empty as the pledge to reform farm policy. All that the Brussels Commission seems able to deliver on demand is personal and institutional greed. For it to deride as “anti-European” those who challenge its ambitions shows how corrupted is a once noble ideal.
Even as a sceptic towards “deeper union”, I recognise the need for some federal framework in ordering Europe’s collective affairs. Given the inevitable clash between national and continent-wide interests, such federalism requires a constitution and enforcement. These boons the present EU is plainly incapable of delivering. It offers only a creeping authoritarianism.
That the federal debate is alive and well is evident this week in Washington. It was absent in Europe. America won the democratic argument in 1776. It is winning still. |
