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The election crisis reminds us that we have two Constitutions.

Two Nations, Indivisible


Now that Al Gore has conceded and George W. Bush has claimed the presidency, the body politic, like a patient whose fever has passed its crisis, can begin to heal. But don't be deceived. Our Constitution has passed through a near-death experience. Surgeons have restored a "normal" heartbeat, but the muscle is scarred from the operation, and will be weaker the next time trouble comes. And there will be a next time. We have had a series of constitutional seizures over the past quarter-century, with shorter and shorter intervals of calm between them: Watergate and the Nixon resignation; Iran-Contra; the impeachment and trial of President Clinton; now the battle of Florida. All of these events are symptoms of the same underlying weakness. To put it simply, our country has two Constitutions that often contradict each other. Ask yourself why so many honest Republicans insist that Vice President Gore's entirely legal request for manual recounts represented a cynical attempt to "steal" an election Governor Bush had clearly "won." And why do so many high-minded Democrats truly believe that no honest recount could ever favor Bush? The two sides are not giving conflicting answers; they are asking incompatible questions. We don't agree on what form of government we live under. The United States has the oldest written Constitution in the world. Since 1787, the country has been transformed many times. We have accommodated change piecemeal, with amendments here and there. Today our Constitution resembles an old country house that has been renovated, expanded, and redesigned over two centuries. As a result, the house looks entirely different depending on what wing you live in. One wing we might call the Founding Fathers' wing. It's the original federal mansion: a republic run by an elite of white male property owners. Its institutions were designed to protect against what one delegate to the Constitutional Convention in Philadelphia called "an excess of democracy." In that republic, the people — what 18th-century thinkers called "the mob" — did not rule. Instead, men of a certain social level chose members of the House, state legislators chose senators, and disinterested electors chose the president. The other wing might be called the Lincoln-Roosevelt wing. It reflects the bloody upheavals that ended slavery and established government "of the people, by the people, for the people." In this wing, everybody votes, and the president is the people's tribune, responsible to the people as a whole. Both visions are grounded in the Constitution — the Founding Fathers' vision is in the original text, the democratic vision in the amendments establishing equality and granting the right to vote to everyone. What practical difference do the visions make? Well, consider Watergate and Iran-Contra. Partisans of the Framers' view are comfortable with a president who transcends the law, and who "protects" the republic in secret. The Lincoln-Roosevelt wing believes that the president is subject to law and accountable for all his acts. Consider, too, the impeachment struggle: The people freely chose Bill Clinton twice. They were enraged when members of Congress tried to reverse this vote. But to the Framers' faction, the verdict of "the mob" was less important than the judgment of the conservative political elite. And consider, finally, the mess in Florida. To the Lincoln-Roosevelt side, the purpose of an election is to find out what the majority wants. Everyone has a right to vote, and machines or ballots that impede that right are illegitimate. But to those in the Framers' wing, voting is a privilege extended only to those who are fit to exercise it. That view stretches from the property qualifications of early America to the literacy tests and grandfather clauses of yesterday's segregated South. It echoes in the scorn expressed on talk radio for those who could not navigate the muddled Palm Beach ballot; it resounds in Justice Scalia's offhand statement from the bench that the people have no constitutional right to vote for their president at all. It is reflected in the Florida Legislature's determination to bypass counting altogether and pick its own slate of electors. Both sides are sincere. But sooner or later we will have to choose between them. Much as I revere the demigods of Philadelphia, I must cast my lot with the Lincoln-Roosevelt vision of America. The Framers' Republic was flawed, repressive, and ultimately self-destructive. Its unjust discriminations of race, sex, and wealth led to civil war. The democracy born of that cataclysm, and refined by the New Deal, has its flaws too, of course. But it has transformed the world through the force of its example; and today it is much closer than the old vision to what the rest of the world means when it speaks of democracy in the 21st century. It would be tragic beyond words if America turned away from this vision at the moment of its global triumph. But to avoid a descending spiral of crisis and respite, we must resolve the contradiction in our system. To do that, we must first see it clearly and recognize that the argument has two sides. Our nation is ambivalent about equality; we must probe this painful conflict and come to a conclusion. More than a century ago, Abraham Lincoln warned that a house divided against itself cannot stand. We must use the time ahead to heal our divisions in a real way. If we do not, next time the patient may not survive. Garrett Epps is associate professor of law at the University of Oregon and a former reporter for The Washington Post. He can be reached at 1221 University of Oregon, Eugene, OR 97403. Opinions expressed on the Back Page are those of the writer and not necessarily those of Style Weekly. © Garrett Epps

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