This op-ed originally appeared in the Los Angeles Times, December 11, 2000.

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How Do We Measure the Will of the People?

 

By JACK M. BALKIN

 

AMERICAN DEMOCRACY IS FOUNDED on faith in something called "the will of the people." According to the Declaration of Independence, our leaders have the right to rule only with "the consent of the governed." Politicians are well-trained to begin their remarks with an invocation of the people and their will. Indeed, every politician seems to know exactly what the American people want at all times.

In fact, however, "the will of the people" is a legal and political fiction. Real people do have real desires and real values. And when the state ignores them and oppresses them, that oppression is real too. Yet the "will of the people" that politicians are constantly prattling on about does not precede the political process. Rather, it is constructed by that process.

This fact is the source of our current constitutional crisis. The election of 2000 is about contrasting ideas of who "the people" are and how to measure their will. Take the electoral college. Vice President Al Gore won more votes nationwide than Gov. George W. Bush. Yet Bush claims that he won more votes in Florida, and so he won the election.

Does the electoral college represent the authentic voice of the people? Hardly. It's a way of constructing popular will by aggregating victories in individual state elections. It gives small states somewhat more say than their proportionate share of the national population. To be sure, electors are usually chosen by popular vote. However, the Florida Legislature now wants to substitute its slate of electors for the electors certified earlier. The Legislature may insist that in doing so it is respecting the true will of the people of Florida. But plenty of other people in the state may beg to differ.

The point, however, is that procedural rules create one kind of "people" as opposed to another. There's not just one way to do it. Yet whatever grouping is produced by procedural rules is the one that gets to wear the mantle of "the voice of the people."

Procedural rules aren't the only constructors of popular will. Technology matters too. Counties with electronic voting systems produce different numbers of mistakes and undervotes than counties with old-fashioned machines that use punch cards.

Like a person with a bad hearing aid, counties with old technology can't hear what their voters aresaying very well and so may conclude that they said nothing at all. Machines clogged with chads construct popular will just as surely as the electoral college does. The Bush team describes the resulting "undervotes" as "non-votes," thus equating the result of technological imperfection with no expression of will at all.

Finally, technological limitations interact with legal procedures: Faced with mountains of partially pressed and punched pieces of paper, canvassing boards and courts must come up with legal rules for counting (and discounting) ballots. Whatever rules get used, they do not so much reflect popular will as construct it. Then they present the finished product as what the people "really" said.

Ordinarily these different constructions of popular will don't seem to matter much. That's more or less what keeps democracy going. The popular-vote winner is usually the electoral college winner. Electoral margins are usually wide enough that old and outmoded technology will do just fine.

But sometimes the election is close, and it matters greatly which construction of popular will gets chosen. Then the fictional character of "the will of the people" is exposed all too starkly. This is just such a moment.

The widespread concerns about legitimacy that we hear now don't stem from the fact that people are especially partisan or especially angry with each other. They stem from the fact that whoever wins this election, it will be clear that he won because of a contestable and controversial construction of popular will.

Americans can put up with a system in which the opposite parties hate each other's guts. What they cannot put up with is a system in which the official winner sanctimoniously pronounces that "the people" supported him when it's not at all clear that they did.

Legitimacy, however, is a strange and wonderful thing. If we remember that elections and procedures are not popular will itself but only one particular construction of it, we will understand why there is still cause for hope.

Elections are won by rules, but legitimacy is produced through informal popular acceptance. Americans can easily bestow legitimacy on the new president despite the recent shenanigans of the two major political parties. If people make clear that they accept the new government, it will have all the legitimacy it needs.

 

Jack Balkin is a professor of constitutional law and the First Amendment at Yale Law School. His most recent book is Cultural Software: A Theory of Ideology (Yale University Press, 1998).