News and Features
Our drug laws, like those concerning voting, reveal bias and backward thinking.
There's a growing movement to add livable hours to calls for a living wage.
Wait until next season. I've already started practicing my
chad-punching, and I suggest the same as therapy for all who feel ripped
off by the collusion between the US Supreme Court's right-wing
ideologues and George W. Bush's lawyers to prevent an accurate Florida
vote count. The electoral process will survive and Bush may even learn to
do the job, but the price of his victory is the court's denigration.
It took a non-ideological Republican appointee, a near-extinct breed
in the GOP, to puncture the outrageous hypocrisy of the Antonin
Scalia-led majority that defined a fair recount by the singular standard
that would leave Bush the winner.
In his dissent, John Paul Stevens wrote the indelible postscript to
this judicial farce: "Although we may never know with complete certainty
the identity of the winner of this year's presidential election, the
identity of the loser is perfectly clear. It is the nation's confidence
in the judge as an impartial guardian of the rule of law."
The so-called court conservatives simply had no sense of shame or even
proportion. Think of the conflicts of interest we learned about only in
the last few days: Clarence Thomas's wife is helping the conservative
Heritage Foundation recruit workers for a Bush administration, and Scalia
has two sons associated with key law firms representing Bush--one a
partner of Theodore Olson, who argued Bush's case before the high court.
It's also common knowledge that Chief Justice William H. Rehnquist and
Justice Sandra Day O'Connor indicated a desire to retire, but only if
Bush won and could replace them. In that event, Bush would likely appoint
Scalia as chief justice.
Common decency, let alone judicial integrity, should have left the
court's majority more hesitant in acting as agent for selecting the next
President. Instead of taking the high road and leaving the matter where
it belonged with the Florida Supreme Court--according to the federal high
court's own oft-avowed states' rights precepts--Scalia and company
insisted on halting the recount. Why? Because there wasn't time to do it
right. But whose fault was that? Bush's and the US Supreme Court's.
Had the statewide count of disputed ballots been allowed to fairly
conclude, it would have shored up our next President's legitimacy. If
Bush had won the electoral vote after a fair count in Florida, it would
have taken the sting out of his ascending to the presidency despite
losing the national popular vote.
The US Supreme Court's heavy-handed intrusion was as destructive of
confidence in our political system as it was unnecessary. As Justice
Stephen G. Breyer wrote in dissent, the majority ruling represented "a
self-inflicted wound--a wound that may harm not just the court but the
Never again will a President's appointment of a federal judge be
viewed by the public--and more important the Senate, which must confirm
it--as a neutral, nonpolitical act. Recall that even such hard-line
ideologues as Justices Thomas and Scalia were confirmed with votes from
Democratic senators who thought it important to give the President the
benefit of the doubt. Next time anyone of discernible ideological bias is
nominated, there will be unprecedented senatorial gridlock. For that
reason, the real test of the Bush presidency will be his appointments to
the federal courts.
It is the same test faced by his father: Will they be true moderates,
such as Justice David H. Souter, a man capable of complex legal thought,
or another Thomas, whose most sentient act is to look to Scalia, then
vote? What a sad comment that the man who replaced Thurgood Marshall as
the only African-American on the court should now, in helping to block
the recount, so brazenly mock Marshall's lifelong crusade to insure the
sanctity of the black vote.
In any event, the court has handed the nation George Bush as
President, and we can live with that and even entertain hopes that he
will rise to the occasion, despite an obvious lack of preparation. Deep
down, if one can presume such a thing, he seems a decent sort. If he just
keeps in mind that most of the voters rejected him, he might resist Tom
DeLay's ultra-rightists in the House and pursue a moderate legislative
course. In any case, now that Joseph Lieberman will retain his seat, the
Senate will be evenly divided, and centrists of both parties will be
calling the shots.
But what we cannot live with is an even more politicized judiciary
dominated by right-wing ideologues. The GOP's far right will want strong
proof that its aggressive campaigning for Bush is rewarded, and its prime
goal is complete control of the federal judiciary, which is why Senate
Republicans blocked scores of Bill Clinton's judicial appointments.
However, if Bush attempts to reward his rabidly conservative backers by
placing their favorites in high positions in the federal judiciary, he
will tear this country apart. And next time, his opponent's chads will be
punched so forcefully that even the Supreme Court won't be able to save
We know what they're afraid of. Cut through the Republican verbiage
that has clogged the airwaves and courts and you find one simple but
disturbing point: They fear an accurate vote count because it might prove
that Al Gore has the votes to be fairly elected President.
That's been their concern since election night, when they began their
drawn-out process of obstruction, and if they succeed in once again
killing the manual count through their US Supreme Court appeal, George
W. Bush's victory will stand as a low point in the annals of American
The indelible impression left on our history will be that Gore won
both the popular and electoral vote and that he and the voters were
cheated out of that victory by a US Supreme Court dominated by
political ideologues appointed by Republican Presidents. If the Justices
cared a whit about the sanctity of the vote, they would have let the
manual-counting process decreed Friday by the Florida Supreme Court
continue. If that had resulted in a Bush win, we should all have
gracefully acknowledged his victory.
Bush, who lost by more than 330,000 in the popular vote--what most of
us grew up thinking of as the real election--may now squeak by with an
electoral college win resulting from a ruling by the right-wing-led US
Supreme Court. During the campaign, Bush cited Antonin Scalia and
Clarence Thomas as his judicial role models, and he has been amply
rewarded. Legal gobbledygook has replaced reason when the mere act of
fairly counting the votes of the citizens is halted to suit the political
agenda of the party that appointed the majority of the Justices.
In a close election, a manual count of all votes not counted by the
antiquated voting machines is a statutory mandate in many states,
including Florida and Texas, and should have been the common-sense demand
of both candidates in Florida. If that simple standard--accurately and
fairly counting all of the votes to ascertain the intent of each
voter--had been asserted in a bipartisan manner, there would have been no
reason for the subsequent confusion and the never-to-end questioning of
the legitimacy of our next President.
Instead, unprecedented rancor will mark the next years of our
politics, mocking all efforts at bipartisan cooperation. This will be
particularly true in battles over the judiciary, which, more than ever,
will come to be viewed widely as a partisan tool.
The Florida election will always be too close to call in a manner that
would leave partisans of both sides totally satisfied. Whoever loses will
feel ripped off, but the denigration of the Florida Supreme Court and of
Gore's legal challenges by top Bush Republican spokesperson James Baker
has gone too far. Twice now he has smeared the motives of Florida Supreme
Court justices for daring to come to conclusions not to Baker's liking.
Yet he reached a new low Friday in disparaging the right of a
presidential candidate--who has won the national popular vote and is only
three electoral votes from victory--to ask for a judicial review of the
obviously deeply flawed Florida election results.
Get real. Both Baker and Bush know they would do the same had the
results gone the other way. Yet they self-righteously abandoned civility
when the nation most needed it. There are no villains in this election,
only imperfect machines and people, but the Bush camp has vilified the
Gore camp for daring to seek a fair adjudication of such matters.
We are still a nation of laws, and it was unconscionable for Baker to
blast Gore for appealing to the Florida state high court at the very time
Bush's lawyers raced to the federal courts in an unseemly departure from
the GOP's commitment to states' rights. In Baker's view, the problem is
not that we have a razor-close election and flawed voting procedures, but
rather that Gore dares to assert his legal rights: "This is what happens
when, for the first time in modern history, a candidate resorts to
lawsuits to overturn the outcome of an election for President. It is very
sad. It is sad for Florida. It is sad for the nation, and it is sad for
Hogwash! What is sad is that tens of thousands of African-American and
Jewish voters in Florida were systematically denied their right to vote
by poorly drawn ballots, malfunctioning voting machines and unhelpful
voting officials. What is sad is that election officials in two counties
turned over flawed Republican absentee ballot applications for
corrections by Republican Party officials but did no such favors for
What would be most sad--indeed, alarming--is if a partisan US
Supreme Court proves to be an enemy of representative democracy.
All I want is the truth. Just gimme some truth.
Florida's electoral mishegoss lends itself to the exploration of an issue that receives no attention in the media and yet underlies virtually everything its members do. I speak to you, dear reader, of the Meaning of Truth.
Ever since Fox's John Ellis began the mistaken media stampede for his cousin George W. Bush's victory on election night, reporters, producers and executives have spun themselves silly trying to describe a situation that is ultimately an epistemological bottomless pit. There is no single "truth" about who won Florida. From the point of view of "institutional truth," we began without clear rules or precedents for measuring the vote, whether they include dimple-counting, partially punched chads or butterfly ballots. I am convinced Gore carried the will of the people, but I'm guessing that Lady Katherine Harris Macbeth would rather contract rabies than accept my admittedly subjective interpretation. From the perspective of "brute truth," however, the difference between the Bush/Gore numbers turns out to be so small that it will never exceed the count's margin of error. What we are seeing, therefore, is not a process of objective measurement but a contest of raw power. The Democrats use the courts and the law. The Republicans rely on rent-a-mobs, partisan hacks and power-hungry allies in the state legislature and Congress. Guess which side is bound to win?
Our media coverage admits none of this, because it is committed to a fairy-tale version of truth and objectivity that separates "fact" and "opinion" but cannot fathom anything in between. When Tim Russert declared on November 26 that George Bush "has now been declared the official winner of the Florida election...and therefore he is the 43rd President of the United States," he was making a statement that could not have been true when he made it. (Even Bush understood that he was only playing a President-elect on TV.) But the feared and celebrated Russert knew that his words were bound by only the narrowest definition of "truth." He could always take it back later.
The attachment to the idea of attainable objective "truth" on the part of American journalism is partially responsible for its frequent brainlessness. As NYU's Jay Rosen points out, "objectivity as a theory of how to arrive at the truth is bankrupt intellectually.... Everything we've learned about the pursuit of truth tells us that in one way or another the knower is incorporated into the known." (Remember Heisenberg? Remember Einstein?) The famous 1920s debate between Walter Lippmann and John Dewey shed considerable light on this problem, with Lippmann arguing for a "spectator" theory of reality and Dewey arguing for a more consensual one, arrived at through discourse and debate.
The notion of a verifiable objective truth received what many intellectuals considered its final coffin nail in the form of Richard Rorty's classic 1979 work, Philosophy and the Mirror of Nature. While the word true may have absolute correlations in reality, Rorty later argued, "its conditions of application will always be relative." What was "true" in ancient Athens--that slavery and pederasty were positive goods--is hardly "true" to us today. As Rorty explains it, we call our beliefs "true" for the purposes of self-justification and little more. The point is not accuracy but pragmatism. Moreover, Ludwig Wittgenstein has taught us that the gulf between what "is" and the language we use to describe it is so large as to be unbridgeable. "Truth" may be out there, but there is no answer to a redescription, Rorty observes, "save a re-re-redescription." Truth is what works.
Now, it's possible to contest Rorty on any number of counts. I personally find him overly generous to the extreme relativism of antifoundationalists like Jacques Derrida and Michel Foucault. (The antifoundationalist perspective can be simplistically summarized by the famous Surrealist painting of a pipe by René Magritte beneath the words, Ce n'est pas une pipe.) But the argument itself cannot be avoided. Truth, as Lippmann never understood but Dewey did, is a lot more complicated than a baseball box score or a Johnny Apple New York Times news analysis. What is needed to evaluate whether a report is ultimately credible is not an endless parade of "facts" that may or may not be true but a subjective marshaling of evidence. Yet because the entire media establishment treats these questions as just so much mental masturbation, the standard definition of "fact" often turns out to be any given statement that cannot be easily disproved at the moment it is made. Hence, we frequently see journalistic accounts of the mood of an entire country or even a whole continent based on little more than the taxi ride from the airport.
A second byproduct of American journalism's childish belief in attainable objective truth, Rosen notes, is the alienation it causes between journalists and intellectuals. In Europe the public profits from a two-way transmission belt between the world of ideas and that of reported "fact." But here such exchanges are nearly impossible because, as Rosen puts it, "intellectuals familiar with the currents in twentieth-century thought just can't deal with some of the things that come out of journalists' mouths." Such people, he notes, believe it "useless to try to talk with journalists" owing to their "naïve empiricism." Still, the academy is also at fault, owing to its recent retreat into a Derrida/Foucault-inspired debate that admits almost no reality at all outside the text and does not even pretend to speak intelligibly to the nonspecialist.
In any case, George W. Bush may be our next President. But it won't be because he outpolled Al Gore in Florida in any remotely objective sense. It will merely be because he might have, and we decided to call it "true."
* * *
Congratulations to Ralph Nader on George W. Bush's decision to appoint Andrew Card, formerly the auto industry's top antienvironmental lobbyist, to be his Chief of Staff. Just a few more appointments like this one, I suppose, and the revolution can begin in earnest.
Death came as a release for Daniel Singer on December 2, but we feel like protesting its rude intrusion. In one of the last things he wrote for us, a review of some books about Sartre, he quoted a friend's son, on the day of the French philosopher's funeral. Asked where he had been, he said he was coming "from the demo against the death of Sartre." We'd like to join a demo against the death of Daniel. Better, though, would be one celebrating the life of our valued colleague, The Nation's Europe correspondent for nearly twenty years.
He wrote about many a demo in his reports to us, incessantly probing for signs of vitality on the European left--or the rot of fascism on the far right. During the 1980s, as Reaganism and Thatcherism blanketed the Continent, he seemed, at times, one of the few remaining Marxists. A protégé of the great Marxist intellectual Isaac Deutscher, he held a steadfast faith in democratic socialism but not in any hard doctrinal way. Indeed, the book of his that prompted Victor Navasky to send associate editor Kai Bird to Paris in 1981 to talk to Daniel about writing regularly for us was The Road to Gdansk, a study of Solidarity, which he presciently celebrated as the first crack in the monolith of Soviet Communism and another exemplar of the power of working people to change the world, which was his abiding faith.
When the neocon intellectuals of France, here and elsewhere jumped aboard the funeral hearse of socialism, Daniel stood defiantly on the sidelines. He never modified his conviction that capitalism's injustices were as glaring after the wall fell as they were before. In his last book, Whose Millennium? Theirs or Ours? he ended with a ringing affirmation: "We are not here to tinker with the world, we are here to change it!"
We'll miss Daniel--his wisdom, his courtly kindness, his brilliance, the stubborn courage that carried him through, from his Polish boyhood before World War II when, as a self-styled "deserter from death," he narrowly escaped the Holocaust, until the end. Before he died, he sent readers the following message:
"These are the last words I shall write to The Nation. With my normal absence of modesty I believe that over the years I acquired a radical readership. Radical need not mean sure of itself; nor does it rule out compromises and calculations. But a 'Luxemburgist socialist' (the definition I like best) could not resign himself to the idea that with the technological genius at our disposal we are unable to build a different world. Nor can we accept the fashion that capitalism will vanish without a vast social movement from below.
"That something can happen does not mean that it will happen. I, for one, shall not see this world. Yet, I am departing with the feeling that on the whole I have followed the right road and even with a degree of confidence. Among my young interns, Carl Bromley and his companions, among the youthful fighters from Seattle to Seoul, one can detect a refusal of resignation. You must join them as they now begin to show the way."
On November 7, voters in Alabama erased from that state's Constitution a provision dating from 1901 that declared that "the legislature shall never pass any law to authorize or legalize any marriage between any white person and a Negro, or descendant of a Negro." This declaration represented in part a desire by white supremacists to express as fully as possible their intention to expunge the racially egalitarian symbols, hopes and reforms of Reconstruction. Although Alabama had never enacted a law expressly authorizing interracial marriage, in 1872 the state's Supreme Court did invalidate the law that prohibited such unions. But it promptly reversed itself in 1877 when white supremacists regained power. The Alabama Constitution's disapproval of interracial marriage, however, had still deeper roots. It stemmed from the presumption that white men had the authority to dictate whom, in racial terms, a person could and could not marry. It was also rooted in the belief that certain segments of the population were simply too degraded to be eligible as partners in marriage with whites. At one point or another, forty states prohibited marriage across racial lines. In all of them blacks were stigmatized as matrimonial untouchables. In several, "Mongolians" (people of Japanese or Chinese ancestry), "Malays" (Filipinos) and Native Americans were also placed beyond the pale of acceptability.
Rationales for barring interracial marriage are useful to consider, especially since some of them echo so resonantly justifications voiced today by defenders of prohibitions against same-sex marriage. One rationale for barring interracial marriages was that the progeny of such matches would be incapable of procreating. Another was that God did not intend for the races to mix. Another was that colored people, especially blacks, are irredeemably inferior to whites and pose a terrible risk of contamination. The Negrophobic Thomas Dixon spoke for many white supremacists when he warned in his novel The Leopard's Spots that "this Republic can have no future if racial lines are broken and its proud citizenry sinks to the level of a mongrel breed." A single drop of Negro blood, he maintained apocalyptically, "kinks the hair, flattens the nose, then the lip, puts out the light of intellect, and lights the fires of brutal passions."
Although opponents of prohibitions on interracial marriage have waged struggles in many forums (e.g., academia, the churches, journalism), two in particular have been decisive. One is the courtroom. In 1967 in the most aptly titled case in American history--Loving v. The Commonwealth of Virginia--the United States Supreme Court ruled that prohibitions against interracial marriage violated the equal protection and due process clauses of the Fourteenth Amendment. (Although much credit is lavished on the Court's decision, it bears noting that nineteen years earlier, in 1948, the Supreme Court of California had reached the same conclusion in an extraordinary, albeit neglected, opinion by Justice Roger Traynor.) When the federal Supreme Court struck down Jim Crow laws at the marriage altar, it relied on the massive change in public attitudes reflected and nourished by Brown v. Board of Education (1954), Martin Luther King Jr.'s "I Have A Dream" address (1963), the Civil Rights Act (1964) and the Voting Rights Act (1965). The Court also relied on the fact that by 1967, only sixteen states, in one region of the country, continued to retain laws prohibiting interracial marriage. This highlights the importance of the second major forum in which opponents of racial bars pressed their struggle: state legislatures. Between World War II and the Civil Rights Revolution, scores of state legislatures repealed bans against interracial marriage, thereby laying the moral, social and political groundwork for the Loving decision. Rarely will any court truly be a pioneer. Much more typically judges act in support of a development that is already well under way.
Unlike opponents of Brown v. Board of Education, antagonists of Loving were unable to mount anything like "massive resistance." They neither rioted, nor promulgated Congressional manifestoes condemning the Court, nor closed down marriage bureaus to prevent the desegregation of matrimony. There was, however, some opposition. In 1970, for example, a judge near Fort McClellan, Alabama, denied on racial grounds a marriage license to a white soldier and his black fiancée. This prompted a lawsuit initiated by the US Justice Department that led to the invalidation of Alabama's statute prohibiting interracial marriage. Yet the Alabama constitutional provision prohibiting the enactment of any law expressly authorizing black-white interracial marriage remained intact until the recent referendum.
That an expression of official opposition to interracial marriage remained a part of the Alabama Constitution for so long reflects the fear and loathing of black-white intimacy that remains a potent force in American culture. Sobering, too, was the closeness of the vote; 40 percent of the Alabama electorate voted against removing the obnoxious prohibition. Still, given the rootedness of segregation at the marriage altar, the ultimate outcome of the referendum should be applauded. The complete erasure of state-sponsored stigmatization of interracial marriage is an important achievement in our struggle for racial justice and harmony.
We must hold countries accountable for economic abuses just as we do for torture.
Montgomery's transit system isn't segregated anymore. It barely exists.
Amid all the partisan sniping, talking-head screeching and judicial decisions, there are two indisputable facts that go far toward explaining the true tragedy of the Florida recount.
Fact one: In this election, punch-card voting machines recorded five times as many ballots with no presidential vote as did the more modern optical-scanning systems. A New York Times analysis of forty-eight of the state's sixty-eight counties found that 1.5 percent of the ballots tallied under the punch-card method showed no vote at the top of the ticket, while only 0.3 percent of the ballots counted by the newer machines registered no vote for the President. An Orlando Sun-Sentinel examination concluded that counties using the best optical-scanning method recorded presidential votes on more than 99 percent of the ballots, and counties using the old punch-card devices counted presidential votes on only 96.1 percent of the ballots.
Fact two: Punch-card machines were more widely used in areas where low-income and African-American citizens vote. Two-thirds of the state's black voters reside in counties using punch cards, while 56 percent of white voters do.
Put these two undeniable facts together and the conclusion is inescapable: A statistically significant slice of the Florida electorate was disfranchised by voting technology. That is, a disproportionate number of voters done in by the error-prone punch-card machines were low-income and black Floridians, who generally favored Al Gore over George W. Bush. Presumably, some no-vote ballots actually did not include a vote for President. But given the closeness of the election--decided by .008 percent--it is likely that presidential votes missed by the punch-card machines would have decisively affected the contest. Bush "won"--among other reasons--because of voting-machine discrimination.
This crucial part of the tale has been overwhelmed by dimple-mania and the usual campaign back-and-forth. But ten days after the election, the Sun-Sentinel reported that "Florida's different vote-counting machines resulted in more GOP votes." For example, Brevard County, the home of space-shuttle launches, spent $1 million on more advanced machines in 1999, moving from punch-card tabulators to optical scanning machines that read pen-marked ballots (and that immediately return to the voter a ballot with a problem). Under the new system, the voting machines in this Bush-leaning county found presidential votes on 99.7 percent of the ballots. In 1996 the county's punch-card machines read presidential votes on 97.2 percent. Which means Bush, thanks to the upgrade, likely banked an additional 453 votes for his statewide total--practically his post-recount victory margin. The paper noted that the twenty-five counties that used the punch-card machines went for Gore over Bush 51.8 percent to 46 percent and produced 144,985 ballots with unrecorded presidential votes. Had the people who cast these ballots entered voting booths equipped with the more efficient machines, Gore no doubt would have collected hundreds--if not thousands--more votes than Bush.
There have been allegations that black Floridians encountered racial intimidation at voting sites. (The Justice Department has initiated an informal assessment, not an investigation.) And Bush benefited from the all-too-routine bias by which minority areas receive poorer government services. Unfortunately not just for Gore but for the victims of this quiet bias in Florida, this inequity was unaddressed by the Florida circuit court and the US Supreme Court, partly because the Gore campaign didn't raise it.
The Gore legal challenge focused on 14,000 or so supposedly no-vote punch-card ballots in Miami-Dade and Palm Beach counties, not the statewide problem, and called for a manual review only of those ballots. The Veep's lawyer did not argue that the county-by-county patchwork voting system operated less effectively for blacks, a constituency that Democrats rely on to win elections. In his ruling against Gore, Circuit Judge N. Sanders Sauls noted that the record "shows error and/or less than total accuracy in regard to the punch-card voting devices utilized in Dade and Palm Beach Counties." But Sauls declared that Gore's legal team had not established "a reasonable probability" that the statewide results would turn out differently if those ballots were counted in a better fashion. Either Gore's attorneys screwed up big by not making this point more obvious--which they might have done had they filed contests based on the wider issue--or Sauls misread the math. As for the US Supreme Court, it displayed no eagerness to adjudicate such a touchy and fundamental voting-rights matter as systematic disfranchisement through technology. Its decision--in which it told the state Supreme Court to try again--indicates that the Court wanted to approach the Florida case narrowly, at least in the first go-round.
If a system is decisively skewed to one group's advantage, does that amount to theft? Or is that just the way it is? Clearly, a more equitable vote-counting system in the state--punch-cards for all or optical-scanners for all--would have yielded a different final count. This is an injustice that no court has confronted, on which Bush may well ride into the White House, and that should not be forgotten.
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