West Wing and the Constitution

Sandy Levinson

Fans of "West Wing" got an interesting lesson last night in one of the manifest inadequacies--some of us would say "stupidities" or "dysfunctionalities"--of the U.S. Constitution. For those of you who missed it, President Bartlett has put thousands of American troops between Russian and Chinese armies somewhere in central Asia. The new President-elect, Matt Santos, is (rightly) dubious of the President's policy (though he, like Bartlett, is a Democrat). It is made absolutely clear to Santos that he is "merely" the President elect and, therefore, has no authority whatsoever until inauguration day, which, of course, occurs a full 10 weeks after the election. It is inaccurate to view Bartlett as a "repudiated" President (unlike, say, Hoover in 1932, Carter in 1980 or Bush in 1992), but the West Wing, not for the first time, did their viewers an important service in pointing to the way that we are disserved by a system that allows a true lame-duck to make very important decisions that can well prove albatrosses around their successors necks. Recall that George H. W. Bush placed American troops in Somalia in December 1992, much to the detriment of the Clinton presidency. No contemporary constitutional designer, I am confident, would advise his/her client to adopt anything close to the American system and its long hiatus between election (and, therefore, the granting of democratic legitimacy) and inauguration (the granting of legal authority).

It used to be worse, of course. Until 1933 (and the 20th Amendment), inauguration day was March 4. This meant that there was, as a practical matter, no genuine government of the United States between November 1932-March 1933 in terms of someone willing and able to make important decisions with regard to combatting the Great Depression. The 20th Amendment did indeed make things better, but it should be obvious that January 20, both metaphorically and literally, is closer to March 4 than to November 8.

It would obviously be a good idea to become like almost all other serious countries in the world and devise an election-inauguration process that limited the length of the hiatus. (In the UK, for example, the newly elected Prime Minister moves into 10 Downing Street literally the day after designation by the Queen as such.) There are, of course, limits in what the US can do because of another terrible feature of our Constitution, the Electoral College and the felt need to take time to hold a meeting of the various electors in December and then, should there be a deadlock, wait until January to select the President.

I am happy to say that the Oxford University Press will be publishing a book of mine in October, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) that discusses the "hiatus problem," the electoral college, and much else. In any event, we all owe thanks to a truly marvelous television program for, once again, bringing important constitutional issues to the public's attention in an especially vivid way.
Posted 7:53 PM by Sandy Levinson [link]