Sunday, February 24, 2008

Woulda Coulda Shoulda

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.
Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897)
Almost exactly four years ago, I was fretting about Ralph Nader. You see, Nader had just announced his candidacy and I was worried about a repeat spoiler performance. As our (bad) luck would have it, Kerry lost to Bush by a sufficient enough margin that Nader wasn't the difference-maker.

Today, Ralph Nader has once again announced that he is running for President. As I look back on what I wrote in 2004, I realize that two ideas from my February 2004 post still ring true to me today:

The first point: Ralph Nader will not have an effect on the election in any way, shape, or form. In some bizarro alternative universe, Ralph Nader's star rose after the 2000 election, and he rode a groundswell of support into a renewed bid in 2004. We rallied around his message of battling the corporate kleptocracy, we decided to take the fight to a two-party duopoly and we railed against a flawed electoral system...

...but that world isn't our world. None of the above ever happened. What really happened after 2000 and again in 2004 was that Ralph Nader went back down the cultural rabbit/hobbit hole, disappearing from the national stage. Who knows? Maybe he was headlining policy wonk cruises the whole time and I just haven't been paying attention.

The second point: Ralph Nader is destined to join the ranks of Aaron Burr & Alger Hiss. Like Burr & Hiss, early Nader's contributions (remember that without him we would have neither the EPA nor OSHA) will be overshadowed in time by late Nader's hubris. 50 years from now, they'll remember Nader's contributions to the regulatory state? Not a chance. They'll remember him as the guy who was the but-for cause of George W. Bush's election.

Now, in that last sentence – linking Nader to Bush's 2000 win in Florida – I realize that I sound like the stock Nader critic. And the stock Nader critic should expect to hear from the standard Nader supporter: "It's his right to run," they say, pointing out that he's a natural-born citizen over the age of thirty-five.

But in responding to critics like me who say "Nader should not run" with the statement that "Nader legally can run," Nader's remaining supporters miss the point of Justice Holmes's passage above.

The law provides good guidance regarding what we can do. In a criminal context, the law tells us what we cannot do (unless we want to suffer the penalty). From this negative, we can infer that anything not prohibited is permissible. We can do it.

Yet, the law says nothing (or next to nothing) regarding what we should do. Even if something is legal, ought I to do it? You might find the answer to that question in a book, but it won't be a book of statutes or a bound book of legal opinions. When Nader's remaining supporters respond to critics who say he should not run by saying that he has every right to run, they substitute should for can.

As Bill Clinton has noted, Ralph Nader's 2000 run as the Green Party candidate "for the Presidency "prevented Al Gore from being the 'greenest' president we could have had."

O remaining Nader supporter,
I'm well aware of what Ralph Nader could do in 2000.
What should he have done?

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