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The piece itself was a rather straightforward critique of the inconsistency of politicians in this noble affair. Prof. Lessig's unabashed liberalism led him to find fault only with the Pooblioob approach, but he did mention that those of a different political bent could find plenty of fault with the other side. So far, so good.
There was something about the column which bothered us though. Young Lessig professes a devout respect for the Law, characterizing his viewpoint as holding the virtue of consistency paramount, and cites Supreme Court Justice Scalia as a prime example of one who rises above partisanship with strict observance of the letter of the law. But, how exactly does one revere the law, without also paying implicit homage to the priesthood that makes, enforces and interprets that law? How can one find such fault with the politicians, who, in his words, "feel free to argue what they will to get what they want," without noting that most of these politicians are themselves lawyers and that their hired ho's repeat almost exactly the same lies and distortions, often in front of yet other lawyers on benches in courtrooms of law?
Willy decided to probe the good man's conscience, to see whether these contradictions meant anything to him, whether it had ever occurred to him that his devotion to the rules of law actually was itself a bit of an inconsistency. Furthermore, since Lessig holds the minds of many immature future lawyers in his hands, it seemed to Willy that herein lay much of the problem Lessig was attacking, rather than any solution to it. But, no, Lessig found Willy's exhortations more like unwanted anal probes than mental stimulants. He quickly dismissed Willy as too "uncivil" and rude.
Of course, there can be no resolution of these differences involving ad hominem attacks on any of the participants. Indeed, Mr. Lessig missed one of the most egregious examples of spirit-of-the-law spoiling, and one attributable entirely to Pooblioobs, his bête noire. It seems that the Florida legislature, in an effort to clean up Florida elections, had recently passed a law to "cleanse" its voter rolls of duplicate registrations, deceased personnel and felons. Acting entirely within this law, Pooblioob operatives hired a private firm to come up with a list of potential purgees, which was distributed among the various precincts as an aid to their cleanup. Among about 178,000 names on the scrub list, were 58,000 registered voters identified by the firm, ChoicePoint, as "potential felons." It was left up to the precinct election officials to verify which were in fact actually felons. Of course, this is the Deep South and the Pooblioobs knew full well that African Americans are over-represented on police blotters. They also correctly assumed that harried election officials...given the choice of expensive and tedious background checks for which they lacked the resources or inclination, versus simply denying the right to vote to everybody so listed...which choice would be made.
Well, it turned out that many if not most of these folks had actually been convicted of misdemeanors, offenses not affecting their right to vote. So, as pointed by Jesse Jackson and the NAACP, many African American voters were summarily disenfranchised at the polling places. The media, enchanted as they were with the many notable legal eagles and pundits gathered to feast on the spectacle and tired of Jackson's worn out sixties approach to civil rights, mostly ignored this event. Besides, the Pooblioobs and their hired guns had behaved well within the letter of the law.
But then, ALL of the actors were behaving well within the letter of the law. As outrage upon outrage was reported in the press...absentee ballots of soldiers, sailors and marines disqualified for lack of a postmark, little old Jewish ladies confused by the butterfly ballot into voting for Buchanan instead of Gore, voters intending to vote but unable to push a stylus completely through a light piece of cardboard...who was there but the lawyers, beating their breasts and loudly proclaiming that the will of the people, the sanctity of the individual's right to vote, the future of civilization itself were all on the line...dependent entirely upon strict adherence to the rule of law.
What's going on here? Have we all gone mad? Are lawyers really demons in disguise?
Of course not! These highly paid gentlemen...and a few, but very few, ladies...did nothing more serious than interpret the statutory law in ways that helped the causes of their masters. In doing so, they paid homage to the very consistency Lessig so admires...each, after all, like priests and ministers interpreting the Bible, stuck strictly and carefully to a prescribed line of reasoning. Of course, you could, as Lessig did, find inconsistencies WITHIN each political camp and among the political spokespersons, but as individuals, they all performed quite decently. A clever lot, all of them.
No, the problem is not with the lawyers, but with the law itself. American law is based upon twin foundations, the Roman/Germanic reliance upon written statutes and the English common law tradition of interpreting that written law in the spirit of justice, fairness and simple common sense. However, as the years, decades and centuries have passed, common sense has changed hardly at all, but the body of written law has accumulated into a gigantic pile of confusing and contradictory regulations. And, as it grew, the need for ever more attorneys to argue it, ever more judges to interpret it, ever more officers to enforce it accumulated apace. Add to this mess of rules and regulations, add the body of judicial precedent to assist the growth of lawyerhood, and you end up with 90% of all the attorneys in the WORLD!
You also end up with a non-linear chaotic system, much like the weather or the stock market, with all the attendant unpredictability and...for the purveyors of pompous, pious, platitudinous pronouncements...a fertile field for twisting and bending the English language to fit any contingency. To top it all, naive liberals...unfortunately including Lessig and his students...call for ever more rules and regulations to cure the faults of the existing body of law! Conservative legislators, who ought to know better, are bludgeoned into the passage of ever more statutes, ever more programs, to right the wrongs of yesteryear. Look for a real flurry of new legislation following this debacle.
Well, just as Lessig is afflicted with his absurd reverence for statutory law...hey, it is, after all, how he makes his living...Gypsy and Willy are afflicted by an equally powerful devotion to the notion of democracy. Unlike so very many of our libertarian comrades, we do not fear the ACTUAL will of the people. Instead, we see the collective wisdom of the entire body of free and informed people as an enormous check and balance on the slithers and slides of the power elite. Yes, yes, we understand that many if not most of us who make up this body hold flawed, illogical and conflicting viewpoints on how things ought to be. We sympathize with those among our founders who felt it necessary to erect the Senate, the Electoral College and our republican system of government as buffers against what they saw as the "mob rule" of democracy. But, where those royalists saw...and still see...anarchy and chaos among the riff-raff, we see a powerful emerging political force that will, some day, change our civilization into something truly civil instead of a simulacrum of civility, a la Lessig et al.
For we are not talking simply about the democracy of the ballot box...one person one vote...but the democracy of the printing press, CNN and the Internet. While the emperors ride in their splendid carriages down the road to royalist madness...who to elevate to the throne, Tweedle Dumb or Tweedle Dumber?...the Crown Prince or the Grand Duke?...we, the people, see quite clearly that those nobles have no clothes...NONE of them.
Our collective wisdom in this latest election clearly is "Who the fuck cares?" What difference does it make whether one party or the other is "in power?" Almost 100,000,000, or half, of eligible voters declined to cast a ballot. How's that for a "margin of error" on estimating the "will of the people?" Supreme Court nominations, prescription drug subsidies, fixing Social Security? Yadda, yadda, yadda. A friend of ours from within the beltway...a die-hard liberal...when pressed on what exactly was the difference between Gush and Bore, finally broke down and admitted that HER friends would have jobs if Bore were raised to the throne. STRANGERS would claim them otherwise!
Ri-i-i-i-ght!
The best thing of all is that the cure for the ills of democracy is...MORE DEMOCRACY! While the Florida spectacle continues to escalate, initiatives in several states...direct legislation by the people...quietly legalized medical marijuana, switched the emphasis in the Drug War to "treatment" rather than incarceration and failed to destroy...quite yet...the public school system with unrestricted access to school vouchers. The initiative and the recall...the ability to remove elected officials by the ballot as well as elect them...were once favorite tools of progressives. We still favor them.
But, as we said above, we really don't expect to rely that much on laws and government. More of THAT just exacerbates the problem. No, we want more television coverage, more Internet, more written words...from EVERYBODY on the entire planet. We want to see American style democracy folded into Chinese style democracy. We want to see English law reconciled with the Napoleanic code. Mostly we want to see ever LESS government, ever FEWER rules. Sunset laws for all legislation. Supermajorities to enact NEW legislation.
But, hey, we are just a couple of voices in this great mass of free people, getting greater and freer all the time, despite our nay-saying brethren in the LP who see nothing but oppression, doom and gloom on the horizon and who couldn't elect Jesus the Christ to political office. Maybe we can convince you we are right, maybe we can't. What's YOUR ideas?
Stay tuned for more of ours. This election has to end some time!
Talk to you later...
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