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It's an Imperfect System Designed to Handle Stress and Mess

November 19, 2000|ROSS K. BAKER | Ross K. Baker is a professor of political science at Rutgers University

Afew years after the disputed election of 1876, Russell Conwell, the Baptist clergyman who founded Philadelphia's Temple University, reflected on the struggle for the presidency that was waged by Democrat Samuel J. Tilden and Republican Rutherford B. Hayes, the ultimate winner.

Conwell recalled that "the government was carried on so unostentatiously that the people seemed unconscious of the presence of executive power, and felt as if the vast machinery of government had found some means of propelling itself without help." How much more revealing about the nature of American government was Conwell's observation in light of the fact that the nation was barely a decade past the national trauma of civil war. And were he alive today, Conwell would have even more grounds for confidence, and he would proclaim the events since Nov. 7 not a constitutional crisis but a triumph of a political system durable and flexible enough to ride out momentary and fleeting political hitches.

The framers of the Constitution, that much-maligned group of dandies, eggheads and slave-holders, were an exceptional collection of amateur psychologists who based that document on a view of human nature that was sensible and realistic.

James Madison, arguably the greatest of them, observed: "If men were angels, no government would be necessary." He saw humans as imperfect and designed a government for imperfect beings. Critics of American government criticize the system of checks and balances as an impediment to governing because they require both houses of Congress to pass a bill and then send it to a president who has the ability to veto it. This certainly tends to limit the amount of law-making that takes place. Yet the founding fathers wisely preferred a trickle of legislation to an avalanche of statutes, and they ensured that whatever dramatic changes in public policy that would occasionally occur would be the product of a national consensus.

Even the federal bureaucracy, now 2 million strong, which has evolved over the years from the handful of clerks in a few executive departments in 1789, constitutes a source of stability. Certainly, the men who wrote the Constitution could not have imagined an Occupational Safety and Health Administration enforcing workplace safety, or a Consumer Product Safety Commission pulling unsafe kitchenware from the shelves of stores, but they cleverly included a clause in Article I that enabled Congress to do what was "necessary and proper." The fact that the OSHA inspectors and the consumer product safety officials were on duty on Nov. 8 and not participating in street demonstrations tells us a great deal about our mature and stable system of government.

Federalism--the term that makes the eyes of most Americans glaze over--is on magnificent display in the disputed Florida returns. The writers of the Constitution saw complexity and diversity even in a nation vastly more homogeneous than it is today, and they concluded that important responsibilities be reserved to the states. Among these powers was the control over elections. This seems to have been conveniently overlooked by Gov. George W. Bush's lawyers, who asked a federal judiciary to consider the kind of case they have long shunned because of the paramount role of the state in conducting elections, even those elections for federal office.

The framers of the Constitution did not regard institutional neatness as much of a virtue, and they vastly preferred a little messiness and complexity to a system that might work smoothly enough to suit the purposes of a tyrant.

Much concern is now being expressed over the ability of the new president to get much accomplished. Perhaps that is not so bad a thing. If there is so little agreement among the American people about who they want as president, there would probably not be a great deal of agreement on what policies the new president should pursue. As the 19th century statesman John C. Calhoun once cautioned: "Great innovations should never be forced on slender majorities."

Whenever a rub develops and the well-constructed engine of government seems to slip a cog, there is a predictable rush of people who want to scrap parts of it. Right now it is the electoral college--designed to write the states into the selection of presidents and protect presidents from the full force of raw public preference--that is the subject of the greatest amount of criticism because of the anomalies that it can produce. It seems to many Americans illogical and even unfair that someone who is the choice of a plurality of the citizens needs also to get a majority of states' electors to be declared the winner.

There is a small but significant incentive for candidates, under the electoral college system, to show their faces in states that would be totally ignored in a election whose outcome was based on popular vote only. People in Maine and New Mexico have as much right to feel included in a campaign itinerary as Californians and New Yorkers.

Perhaps it is the very antiquity of the electoral college that troubles some people, and the fact that it harkens back to a time when more deference was accorded the well-born and well-educated people who were thought of as the perfect electors. This was the argument made by Sen.-elect Hillary Rodham Clinton shortly after her election. She made the obvious point that the country has changed since 1789 and there was no place for outmoded institutions. Had she been less hasty in framing her argument, she might have realized that if we got into the business of scrapping outmoded and anti-democratic institutions, there would be good reason to abolish the very United States Senate that she had just fought so hard to join.

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