Gentle Reader, if you read last week’s Gavel Gamut you will recall we were considering Alexis de Tocqueville’s observations of America as a country based on law. De Tocqueville’s parents, Hervé and Louise de Tocqueville, had barely escaped the guillotine during the French Revolution (1789-1799). De Tocqueville was born in 1805 so he and his family had an intimate personal understanding of the dangers of a nation ruled by individual people, not laws. De Tocqueville studied law and served as a magistrate. He knew the value of French philosopher Montesquieu’s theory of a government formed with a separation of balanced and competing powers (legislative, executive and judicial). And he agreed with the morality of English philosopher John Locke’s (1632-1704) theories that governments should serve their people whom nature had endowed with the rights to life, liberty and property.
When people call for revolution they might wish to re-visit Locke, Montesquieu and de Tocqueville or one could refer to those more contemporary English philosophers, The Beatles. As John Lennon sang while backed by the cabal of Paul McCartney, George Harrison and Ringo Starr in “Revolution”:
♫ You say you want a revolution
Well, you know
We all want to change the world.
But when you talk about destruction
Don’t you know you can count me out.
You say you got a real solution
Well, you know
We’d all love to see the plan. ♫
Unfortunately, Mark David Chapman did not get the message. But Lennon’s untimely loss is an example of how ideology and ignorance can get weaponized as opposed to de Tocqueville’s prescient observation about how the United States holds its “revolutions” every four years via the ballot box. Americans may get quite passionate about their politics, but as Elizabeth Barrett Browning (1806-1861) might philosophize, “It (should be) a passion put to use”, not destruction. (How Do I Love Thee).
Alexis de Tocqueville (1805-1859) was a Frenchman who studied American society during a nine-month tour in 1831 when the United States were still simmering with vitriolic political animus from the 1824 and 1828 elections between John Quincy Adams and Andrew Jackson. Adams was elected by the House of Representatives in 1824 and Jackson won via the Electoral College in 1828. After neither election did the United States fall into chaos, even though Jackson won both the popular vote and a plurality, but not a majority, of the Electoral College vote yet Adams grabbed the presidency in 1824.
Four men ran for president in 1824, John Quincy Adams, Andrew Jackson, Henry Clay and William Crawford. Because the Electoral College vote was split in such a way that none of the four received a majority, as required to be elected President, under the Twelfth Amendment to the U.S. Constitution a “contingent” election was held in the House of Representatives. Each state’s delegation was given one vote and Adams was elected. Jackson and his supporters alleged that Adams and Clay had entered into a “Corrupt Bargain” to shift Clay’s votes to Adams. Regardless, Adams was elected by the House and the country moved on until 1828 when Jackson ran against Adams again.
In his treatise on American democracy de Tocqueville defined America’s presidential election as “a revolution at law” and described it as follows:
“Every four years, long before the appointed (presidential election) day arrives, the election becomes the greatest, and one might say the only, affair occupying men’s minds…. As the election draws near intrigues grow more active and agitation is more lively and widespread. The citizens divide up into several camps.… The whole nation gets into a feverish state.”
De Tocqueville’s ultimate verdict on America’s democracy was encapsulated in his general verdict on how political controversies were ultimately resolved. His observation was that:
“In America there is hardly a political question which does not sooner or later turn into a judicial one.”
De Tocqueville’s opinion was that the American manner of resolving political issues without bloodshed worked because, unlike European monarchies, the United States citizens respected the law and they did so because they had the right to both create it and change it. Since we get to choose our legislators who write our election laws and because we can change the laws by changing whom we elect if we are unhappy, we accept the laws as written including who is ultimately declared the winner of a current election.
The laws we have the right to create and the right to change include filing for an elected office, running for that office, who counts the votes, how they are counted, as well as how and when someone can legally contest an election. That legal procedure applies to all facets of an election cycle. Each state’s legislature has the authority to establish its own procedures in this regard as long as they do not violate federal law.
As an Indiana Circuit Court Judge I was involved in a recount of a congressional race, a county clerk general election, a county council general election, a town council election and a county council primary election. The Indiana legislature had enacted and published a clear statutory procedure for each type of election contest, including what role each public official should play in any recount. The statutes demanded total openness and media access to ensure the public could have confidence that if all involved followed the law a clear winner would be fairly determined. There were time limits, controls and transparency. After a recount result was certified in each contest life moved on and the eventual losers and their supporters accepted the results because they had had their “day in court”; that is, democratically enacted law was followed not the arbitrary or partisan activity of individuals.
De Tocqueville compared America’s hotly contested democratic elections to a surging river that strains at its banks with raging waters then calms down and carries on peacefully once the results have been properly certified. From my own experience with several elections and after the recounts of some of them, I agree with de Tocqueville’s analogy.
That is not to say I am for or against any type of recount for any office. I absolutely have no position on whether any candidate for any office should concede or contest anything. My position is simply that as long as the law is properly followed our democracy can handle either circumstance.
Democracy is messy but usually bloodless. Football is sweaty and sometimes painful. Football teams choose representative colors such as black and orange or cream and crimson. American politics are red versus blue. Football teams are led by coaches and financed by taxpayers or fat cats. Political parties are led by politicians and financed by drips and drabs via the internet or fat cats. Football teams have a few stars supported by several Sherpas. I was happy to be one of the Sherpas on the Pawhuska, Oklahoma high school Huskies football team a while ago and enjoyed every minute of it, except for wind sprints of course. I am still enjoying supporting the Huskies team which is undefeated and on their way to what I hope will be Pawhuska’s first state championship in football.
Political parties have a few stars supported by, usually, faceless minions. Football teams have one mission, to win, whoever the opponent is. Political parties believe their mission is to provide better government than competing political parties would provide. I will leave it up to you, Gentle Reader, if you believe any political party manages to achieve this goal.
Both football teams and political parties are governed by rules of procedure and conduct. With football teams a conference sets the standards and with political parties governments from the local level on up to the top have a hand in determining policy and ultimate victory. Football games are controlled by officials on the field who can enforce the rules. Their rulings are immediate and not subject to appeal but some can be reviewed. Albeit the final ruling, in effect, is made by the same people who made the initial one. Political races are governed by laws and can be subject to recount, review, repeal and reversal. Football fans sometimes must just grimace and bear a referee’s egregious error, such as giving one team an extra down as in the 1990 Colorado v. Missouri game. Of course, the problem with any attempted remedy in football is it would be impossible to completely and fairly recreate the original game circumstance. On the other hand there is the benefit that, other than endless conversations over beer, the calls at football games are final. But political races such as Bush v. Gore in 2000 may end up in the U.S. Supreme Court and may never be universally accepted as final.
As for me, I am currently marveling how my alma mater, Indiana University, can be undefeated in football after many years of wandering in the football wilderness. This column was written before Michigan v. I.U. upcoming on November 7, 2020, so I am hopeful it remains valid when you read this. And I am chagrined that Oklahoma State University where I started college could have lost to Texas last Saturday. I want a recount! I know I personally saw several blown calls that might have changed the score of the Cowboy game.
Regardless, what I have decided after suffering through the entire 2020 political season and cheering (or moaning) my way along the football season is that the temporary pains that I experienced playing football pale in the excruciation caused by the clanging brass of competing political parties and noxious news anchors. I am thankful for football and am past caring about the motes in the eyes of those who do not see eye to eye with me on politics.
Less than one year ago 19 denoted the previous century and the end to one’s teenage years. If 19 had ever caused me any emotional response at all it was probably nostalgia for the bucolia of high school or, perhaps, of trepidation for adulthood. Otherwise 19 was benign. I do not know why the Corona Virus is called COVID-19. Hey, I changed my major from physics to humanities my freshman year of college after I got my first semester grades. I have long since left science to the upper half accums. Therefore, I, and I suspect most folks, just repeat the current pandemic’s appellation as given to us by those with thick glasses and white lab coats.
But this column is not a lament for a lost opportunity to spend my life watching some Algernon race some Charlie in a maze match. It is an acknowledgement that in spite of ’Ole 19 the world is still turning thanks to a lot of dedicated people. The list is almost endless and so I will not attempt to exhaust it. But every day I am amazed by the appearance of water from the tap, electricity through the lines, groceries on the shelves, education via the Internet and imaginative educators, medical care, police and fire protection, one-click banking, governmental services, road maintenance, trash pick-up, fuel supply, house construction, property repair and, of course, online shopping and delivery. You might have noticed that I have not mentioned cable news.
If I was brought to reality by my experience with college physics, I am absolutely blown away by the way our society has persevered in the face of ’Ole 19. Much as people regrouped after the Crash of 1929 or WWII and Korea or polio, AIDS, Vietnam, Oklahoma City, 9/11, the Gulf War and Iraq we have carried on. As our first cousins the British might say, “We are muddling through”, and it is said with justifiable pride.
Peg and I talk every day about how impressed we are that our lives can continue on due to the courage and sacrifice of so many complete strangers. We know we will eventually all win because so many of you refuse to give up. Thank you!
As described by Winston Churchill, “Democracy is the worst political system except for all the others”. And as we suffer through our ongoing political pandemic and naively hope for a November 03 cure the political sausage making gives evidence of Churchill’s observation. On the other hand, if we step back from the splattering mud, we might find some passing amusement in the process. Of course, that is only if we personally or people we care about are not running for office.
The first political campaign I cared about involved the presidential race between Lyndon Johnson and Barry Goldwater in 1964. As I was active military at the time I was quite interested in each candidate’s position on the “police action” in Vietnam. Also, 1964 was my first chance to vote as I had just turned 21 and the 26th Amendment lowering the voting age to 18 was not ratified until 1971. You may recall, if you lived through the ’60’s, or you may have seen old black and white TV images of that famous political advertisement run against Goldwater showing a little girl plucking a daisy as a mushroom cloud rose in front of her. Well, I saw it in 1964 and heard Johnson promise not to send “American boys to die in an Asian war”. As I was one of those American boys, that sounded good to me so I voted for Johnson. That was my first lesson in political reality.
1964 temporarily cured my faith in voting but I relapsed in 1972 when as a young lawyer I decided to save the criminal justice system by supporting a friend of mine in his bid to be elected county prosecutor. Another idealistic attorney friend of mine and I dove head first into election day politics. We stayed up all night making political signs then at o’dark-thirty started putting them up at polling places. We were involved. We felt virtuous.
Then we pulled into a large precinct where many people were lined up to vote. As we each grabbed a sign with our champion’s name on it and jumped out of my old Ford sedan a large woman hustled up to us and asked if we had been sent by “Headquarters”? Neither of us knew what a political party’s headquarters was so we stared at her blankly as she loudly proclaimed, “Well, you better get some ‘supplies’ out here as these people ain’t voting right!” We headed home.
No, democracy is not perfect but it is not all bad and you have to admit it is often interesting. Peg and I still vote every time we have the opportunity even though we are aware our government is staffed with humans, not Plato’s recommended Philosopher Kings. Do we sometimes get disappointed by our choices; certainly. Do we get discouraged; yeah. Do we want any other political system; nope!
One day I met up with my friend Tim “Turtle” Smith in the parking lot of a golf course. “Hey, come look at what I found yesterday when I was out deer hunting.” I looked in the bed of Turtle’s pickup and saw two sets of deer antlers intertwined. Tim said, “I cut these off the heads of two dead stags. They must have starved to death after their battle for which one would gain the prize doe. I guess it is a metaphor for the old saying, ‘Don’t lose your head over.…’ ” Tim is kind of a colloquial philosopher. We do not know what other stag defaulted to winning the mythical doe, but surely a wiser one was lying in wait.
For some reason my encounter with Turtle came to mind after observing the Presidential Debacle last Tuesday evening. If the goal of a leader is to have his or her constituents adopt and follow a particular vision, when it comes to debating, the leader may want to concentrate on setting out elements of the vision and not fall into the quagmire of ad hominem. President Trump and Former Vice President Biden surely both have a vision for America but they both kept their visions well disguised Tuesday.
Usually in a debate someone is declared the winner. However, in the Presidential Debacle of 29 September 2020 there was no winner but there were three losers: President Trump, Former Vice President Biden and the electorate. We learned what we already knew; the candidates hate one another and the national news media loves only itself. Where was what Socrates called for over two thousand years ago when he cautioned, “The unexamined life is not worth living”? And Joseph Campbell’s only unforgiveable sin, that is “to be unaware”, was committed by both candidates and the moderator repeatedly.
If Americans are the prize and leadership is the goal, I suggest our presidential candidates each eschew both mudslinging and mud wrestling and spend their time and ours setting forth their plans for our future and explaining cogently how their plan is superior to their opponent’s. We can decide for ourselves if we like a candidate. What we need is knowledge about which aspiring leader is truly inspiring and not merely exasperating. Of course, if Donnie and Joey continue to act like scuffling school boys, perhaps we will see both of their denouements via the ballot box and a contested election. Then someone else may end up with the prize as declared by a handful of unelected judges.