The Longest Night: Polemics and Perspectives on Election 2000

By Arthur J. Jacobson; Michel Rosenfeld | Go to book overview

VIII

Quis custodiet ipsos custodes? Why, nemo. Or, to speak more exactly, in our country today the question is misplaced and so can beget no answer. 55 Quite in the Machiavellian republican tradition, our people accept the care of lawgivers who are not them: Founders who lay down the country's basic laws and (or including) high judges who construe the laws and maybe from time to time take such liberties with them as may be required (the judges believe) for their preservation and refreshment. Ultimately, Americans do not demand to be their own rulers.

Acceptance of such arrangements may not be the only rational and reasonable choice open to a democratically and constitutionally minded people. That is a matter under debate. 56 On the evidence of Bush v. Gore and its aftermath, it is the choice made by Americans, at least those of our generation. We may not all like this fact or feel proud of it. But why, after all, should anyone here and now take Machiavelli to be worth dredging up, long after his death and that of his particular romanist-inspired political ideas, except as possibly a disturber of complacency and cant? Of course, it is hard to come face-to-face with one's own cant.


NOTES

An earlier version of this chapter was delivered as the 2001 Colin Thomas Ruagh O'Fallon Lecture, University of Oregon, April 9, 2001.

1
Hans A. Linde, “A Republic…If You Can Keep It, ” 16 Hastings Const. L.Q. 295, 317 (1989) (7th Francis Biddle Lecture, Harvard Law School, October 17, 1988). Linde drew his title from a reputed remark of Benjamin Franklin's. Franklin, having been asked by an acquaintance what sort of government the Philadelphia Convention had decided to propose, reportedly had replied, “A republic, if you can keep it.” For Franklin's remark, Linde cited the Papers of Dr. James McHenry on the Federal Convention of 1787, reprinted in Documents Illustrative of the Formation of the Union of the American States (Washington, D.C.: GPO,1927), 952. See Linde, “A Republic, ” 296.
2
Linde, “A Republic, ” at 315.
3
Linde, “A Republic, ” at 303, 307.
4
Linde, “A Republic, ” at 326.
5
Linde, “A Republic, ” at 307–8.
6
Linde, “A Republic, ” at 323 (quoting Theodore C. Sorenson, Watchmen in the Night: Presidential Accountability after Watergate [Cambridge, Mass.: MIT Press, 1975], 126).
7
See id.
8
Compare Jack M. Balkin and Sanford Levinson, “Legal Historicism and Legal Academics: The Roles of Law Professors in the Wake of Bush v. Gore, ” 90 Geo. L.J. (2001) (asking us to imagine the reaction had the Bush v. Gore majority defended

-271-

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