W. Stands for Wrongful

This case was made at greater length last week during the hearing that Florida’s Republican Legislature convened to see if it could indeed appoint its own slate of electors just in case a court-ordered recount ended in the intolerable anomaly of a Gore majority. Boalt Hall law professor John Yoo, a former clerk for Clarence Thomas, argued that the legislators would be remiss if they didn‘t prepare themselves to appoint a slate. Writing this week in the friendly confines of the The Wall Street Journal editorial page, Yoo elaborated his argument that the very notion of popular sovereignty is a partisan plot. “Contrary to Democratic rhetoric,” he asserted, “the people have no right to vote for president or even the Electoral College; that power is only delegated to them by the grace of the legislature. In appointing the electors itself, the legislature would be directly taking up its constitutional functions again.” Like Scalia, Yoo cites what is apparently the Supreme Court’s only previous decision on this point -- in 1892, for McPherson vs. Blackmer, which leaves the choice of presidential electors unambiguously in the hands of the legislatures.

In sum, the now month-long democratic dysfunction in Florida is likely to result not only in W.‘s presidency, but in the reassertion of one of the most elitist and anti-democratic features of our governmental structure, justly and understandably repressed for many decades. No wonder W. is in hiding: He’s taking power by virtue of votes not counted, because of the Electoral College‘s bias against one-person, one-vote, and now on the wings of a ringing assault on popular rule.

We Americans have a hit-and-miss record of enlarging our democracy. Lincoln took Jefferson’s assertion of human equality and expanded it so that slavery came to be seen as inconsistent with the nation‘s defining principles. Another hundred years had to pass before all citizens were assured of their right to vote (though we’ve learned from Florida in the past couple weeks that even that right is inconsistently applied).

Many of our original structures of government plod along unaltered to this day, though they are rooted in assumptions and biases that have been not only rejected, but in many instances forgotten. In 1892, when the court affirmed the power of the legislatures to choose electors, it was still the case that those legislatures elected United States senators. Not until the 17th Amendment to the Constitution in 1913 was that right given directly to the people. As for the Electoral College, it is a direct outgrowth of slavery. Had the constitution mandated a popular vote for president back in 1787, the North -- with a far larger population of white males than the South -- would have seen its presidential candidates routinely prevail. By apportioning electors in accord with a state‘s population, however -- that is, by counting bodies, not voters -- the predominantly Southern drafters of the constitution enabled slave states to dominate presidential elections.

Today, conservatives like Scalia and Yoo cheerfully defend the rights of legislatures over people, but prudently decline to invoke the demophobic and aristocratic beliefs that led to the establishment of these rights. Conservatives like George Will defend the Electoral College but omit any glowing references to slavery when they make their case. No account of W.’s rise, however, should rely on such a sanitized version of history. If he prevails, the first president of the 21st century will owe his office to the institutional legacies of the most repugnant biases of the 18th. The past, as Faulkner reminded us, isn‘t dead -- and when it comes to selecting our presidents, apparently it isn’t even past.