Keeping us free

However tempting it is to address the current presidential dispute
only in terms of the particular factors that tell for or against our
preferred candidate, it is crucial that our judgment be guided by a
consideration of the permanent good of the country. In the current
case, that means that we should consider the fundamental challenge to
our political order that is posed by a presidential election that was,
in most regards, a virtual tie -- and in which no clear national
preference for president is discernible. Abstracting from our opinions
about the particular characteristics of the two candidates, and the
administrations they would lead, what resolution of a deadlocked
election would be best for America?

I believe that at such a moment, it is absolutely crucial that we
make adherence to constitutional procedure our highest priority. If we
do so, this moment becomes an opportunity to strengthen our allegiance
to the Constitution and our understanding of the importance of that
allegiance. Some will say that victory for a particular candidate is
more important than strengthening our constitutional system. I believe
that this opinion is deeply dangerous to the future of the Union,
whatever particular candidate such advocates have in mind.

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Even if the presidency is ultimately determined by vote of the House,
or a congressional determination of electoral credentials, so long as it
is done according to constitutional procedure, it will be a legitimate
result. If the people of the country accept such a result, as they
should, they will thereby confirm that we are a constitutional people in
the most important sense. Their acceptance of such a procedural result
will demonstrate our understanding that our desire for particular
political results must sometimes give way to our devotion -- yes, our
devotion -- to sustaining the procedures of constitutional practice.

Why is this reverence for constitutional procedure not excessive?
Because the supremacy of constitutional procedure is actually the
consequence of the principle that there is a justice that goes beyond
strength and power. When we accede to the results of constitutional
rules, even when those results may not correspond with the will of the
majority, we demonstrate our understanding that even the power of the
majority is limited by respect for the procedures that correspond to
justice.

Because the American system attempts to balance rule by the will of
the people with extensive protections of the rights of individuals, we
are somewhat familiar with particular instances in which the desires of
the majority yield to those rights. But it is almost unprecedented in
our lifetime for the presidency itself to depend upon something other
than the question of which candidate has more popular support. Of
course, in principle, we have never awarded the presidency merely on the
basis of a plurality in the popular vote. The problem we face now is
that the country is evenly divided, and whatever slight majority exists
doesn't mean much. Depending on various interpretations of disputed
facts, almost every politically aware American can reasonably make a
case that his presidential preference achieved an electoral majority and
should be the next president. In such a case, what determines the
outcome is not the strength of the majority, but the strength of our
allegiance to the Constitution.

In this contest, one candidate -- and almost half the country -- is
going to "lose." If they believe that loss resulted merely from the
exertion of superior political gamesmanship by the other side, the false
lesson that will be drawn is that constitutional procedures are simply
one instrument of political combat, and we are fundamentally a nation at
war. If, on the other hand, the constituents of the losing candidate
can understand the result not as the defeat of a candidate, but as the
vindication of a common national devotion to the rule of law, even such
a bitterly contested political contest can be seen as an act of national
unity.

Is this mere sentiment? Is there really some good to be found in a
merely procedural result which is more important than the difference
between a Bush and a Gore administration? Indeed, there is. For our
allegiance to constitutional process signifies our submission to the
very intention of constitutional government, which is to establish a
framework of justice that goes beyond the equation of power and strength
at any given moment. It is a healthy and characteristic discipline of a
free people that they subordinate their will or passion of the moment
for the sake of peace and of preserving the possibility of permanent
liberty. But in order to do this, we must also be a people that
understands that without veneration for the procedural forms of our
political order, we cannot preserve the substance of our liberty.

In the rare moments that very important matters, such as the
presidency, are contested by nearly equal forces, it is crucial that we
understand rightly the famous phrase of Barry Goldwater: "Extremism in
the defense of liberty is no vice. Moderation in the pursuit of justice
is no virtue."

"Moderation in the pursuit of justice" can be a virtue, when
"justice" is defined narrowly as victory for one's own party. However,
Americans should be zealous on behalf of the constitutional forms and
procedures that restrain partisan ambitions and moderate partisan
passions. We could not survive without the ability to restrain our
passion, even our political passion, for the sake of the Constitution.
The Constitution represents our resolve to limit all passion for the
sake of a justice that transcends the particular result.

The 20th century was full of cases of regimes positing a substantive
good as the goal they wished to achieve and, for the sake of that goal,
arbitrarily disregarding human rights and dignity. Self-righteous
passion for seemingly (to some) good objectives is what led to many of
the horrors in the 20th century. Our system represents a different
understanding of the substance of justice. We recognize that an
essential aspect of justice consists of moderating even the passion for
righteousness in deference to the forms which make it possible to limit
the power of government out of respect for the rights of people. This
is not to say that the principal goal of constitutional government is
continually to break up and dilute the political passions of the people
and, thereby, to systematically frustrate their desires to establish
justice. Rather, it is an essential purpose of constitutional
government that, at critical moments when the mass of intense,
conflicting, and immediate passions of the people might otherwise be
destructive of the whole, such destruction is avoided. If we recognize
the enduring value of this safeguard, then the eventual procedural
resolution of the contest will both signify and constitute a
strengthening of the Constitution.

That is why the current conflict remains a moment of opportunity for
the country, and for the candidates involved. We are in a situation
rich with possibility for acts that strengthen our national unity and
constitutional character. Abstracting from the particular disputed
details of the election, it is clear that one of these candidates will
have to surrender his ambition for the sake of constitutional
allegiance. Such a concession need not be remembered chiefly as a
political defeat but as the leading part in a national reaffirmation of
constitutional order. A concession thus offered -- not as an
acknowledgement of electoral defeat, but as an act of endorsement of
constitutional integrity -- will rightly be viewed in historical
perspective as an act of noble statesmanship.

The resolution of this election will transcend the fate of either of
these candidates. The outcome may yet be understood as affirming our
allegiance to the Constitution and to the constitutional way of life
that transcends our allegiance to party and candidate.

I acknowledge that it is extremely difficult to maintain this
perspective in the heat of political competition -- but this is an
inescapable test of our national character. We simply cannot presume
that everybody on the other side of our political struggles is a crook.
We must strive to acknowledge whatever is fair in the efforts of those
on both sides. And we must be particularly careful not to attribute
dishonesty to what may be called the amateur politicians in the
process. Because once either side accepts the premise that the typical
member of the other side is dishonest, we have in fact concluded that
national resolve to respect fairness and rule-of-law is gone. This is
to conclude not that the republic is sick, but that it is dead.

Rather, we should take heart. Given the passions that are naturally
provoked by an election result this close -- and given the enormous
political temptation simply to grasp for victory -- there has been thus
far a generally successful adherence to legal and constitutional
mechanism. Each of us can contribute to this result by striving to take
our minds off of the result we desire and resolving to encourage only
those measures that accord with the integrity and fairness of the
process. We need to insist that the principal political actors at the
center of the controversy take their cue from the general resolve of the
American people that the matter be decided fairly -- which is to say out
of respect for the law and constitutional process.

We are in a moment that could yet reveal that the American devotion
to constitutional discipline is gone and that we are ready to respect
only political power. But it may also reveal to us, and thereby
encourage in us, a great strength that is still part of what we are. By
resolving to keep our personal political passions from drowning out our
respect and desire for a constitutional verdict, each American citizen
can practice a precious piece of the statesmanship that has kept this
people free.