- The Washington Times - Friday, November 24, 2000

The spectacle in Florida has inspired talk about how we're enjoying a national "civics lesson," educating the American people on our precious system. Pundits have turned into secular greeting-card writers, penning little odes to the supremacy of the vote and the holiness of the ballot box. Jesse Jackson talks about the disenfranchisement of voters as if denying a vote automatically condemns a soul to the sixth plane of hell to toil amidst thieves, bullies and the road-show cast of "Rent."

Now, I adore democracy, and I believe, especially around Thanksgiving, that we should be profoundly grateful for the blessings of our democratic system. But let us not forget that democracy is a form of government, not a state of being. The most famous description of democracy in the 20th century was Winston Churchill's observation that democracy is the worst form of government, save for all the others.

Being least worst is not a holy status - it is a practical one. If a mule is your best option to get out of the desert, that doesn't mean it's the ideal option. It is quite possible to live in a brutish, nasty and Hobbesian - yet democratic - world. If you don't believe me, just ask the millions of slaves who lived in American bondage under what was at the time the most democratic regime in the world. (Even if slaves had the vote, they could have theoretically been outvoted in a pure democracy.)

The Founding Fathers embraced democracy because it was, and is, the most practical and equitable means to oppose tyranny. But they didn't have stars in their eyes. They created checks and balances such as the Electoral College, and the system of federalism generally, because they understood that men are not angels and that a "tyranny of the majority" is no less a tyranny.

Right now, the Electoral College and federalism are under attack, not just from Hillary Clinton, but from democracy-worshippers in all parties. Their argument is a simplistic one: The Electoral College is "undemocratic," which is to say un-good. But, as Justice Antonin Scalia recently argued in a lecture to The US-Swiss Foundation in New York, federalism has an advantage lost on many of its opponents: It makes people more happy.

In a pure democracy, the majority simply has its say. Imagine that 75 percent of Americans want to ban smoking in all public places. Shouldn't they be able to? A strict majoritarian would say absolutely. But what if the 25 percent of Americans opposing the ban lived in one or two states? In a pure democracy, those people must cave to the will of the many. But under a federal system, the pro-smokers get to decide the sort of government they want to live under. From school prayer to abortion to drug policy, an "undemocratic" national system allows for a more democratic local arrangement, which helps ensure more happiness for everyone.

Indeed, thwarting the will of the majority is not only essential to ensuring happiness, it is essential to ensuring justice. Our inalienable rights, for example, are immune to popular will. I can write almost whatever I want even if millions of people vote otherwise. I can worship whom I want even if millions vote otherwise. The courts, our most undemocratic institution, are the chief protectors of our rights precisely because they are the most immune to the fickle impulses of the public. Hence the irony that lawyers are duking it out in Florida to settle the "will of the people."

There is a reason why we call it the "democratic process." Democracy is an essential, but not a sole sufficient, ingredient of the American experiment - not a good in itself but a means toward a good. Confusing the process with the intended result is as silly as confusing your car with your intended destination.

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