For its Jan. 5 issue, the Chronicle of Higher Education, industry newsletter of eggheadery, asked a number of "scholars and writers" to predict how future historians will view the Supreme Court's recent election-deciding ruling. The result, the Chronicle's headline on this feature promised, was "9 Vies on Bush v. Gore."
There must be a new, new, new math now being taught in universityland, because the "9 views" in question, so far as THE SCRAPBOOK can tell, actually add up to only two. One of them, beautifully expressed by the extremely non-partisan Cass Sunstein of the University of Chicago (see "Sid's List," above), is that Bush v. Gore will be judged "illegitimate, undemocratic, and unprincipled." Six other academics, plus Gore Vidal, reach pretty much the same conclusion, while writing less well.
And then there's a lonely, token dissent by WEEKLY STANDARD friend and contributor Harvey C. Mansfield, professor of government at Harvard University. Which THE SCRAPBOOK likes so much it reprints now:
"This decision saved the country from possible turmoil and a good deal of further partisan confusion. In this election, there seemed to be more partisanship after people voted than before. I heard hardly anyone agreeing with the thesis of the person he didn't vote for in the matter of the Supreme Court. So I voted for Bush, and I very much supported the final decision made by the U.S. Supreme Court. It very correctly overruled the Florida Supreme Court, which had gone much too far in the direction of judicial activism. And it took an activist majority in the U.S. Supreme Court to correct an even more activist one in the Florida Supreme Court.
"I don't think it was a violation of principle by the U.S. Supreme Court. It's true they mainly support states' rights, but I don't think that's a principle that people can hold to on every occasion. I think they would have made a grave mistake and looked quite foolish if they had held to the right of the Florida Supreme Court to abuse its discretion in this matter. It would have been better if Florida had been able to decide its own affairs constitutionally, but states' rights are not an absolute -- we live under a constitution that also has a federal government. It's good for Republicans and conservatives to remember this. But it's not inconsistent or malicious of them to resort to the final constitutional power of the U.S. Supreme Court.
"It was unfortunate that the majority of the court had to go to the equal-protection clause, which hasn't been applied in voting cases before this and has potential for future mischief if it comes to be supposed that equal protection requires each vote to have the same power. That would run counter to our federal system. But I think the five conservative justices agreed to using the equal-protection clause in order to get two more votes, from Breyer and Souter, and that was a reasonable and statesmanlike thing to do in the circumstances.
"The two parties were very much themselves throughout. The Republicans stand for the rule of law, and the Democrats for the rule of the people. And the Democrats, because they stand for the rule of the people, believe that rule should be paramount, and that technicalities are subordinate to that will. Whereas the Republicans believe in doing things properly or legally. It really was a contest of principle between two parties."