Malfeasance and misfeasance

Sandy Levinson

I have mentioned in an earlier posting a forthcoming book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), that the Oxford University Press will be publishing in October. Reading Jack Balkin's most recent post--on how George Bush is, in some strange sense, "liberated" by the polls and his lame-duckness to do whatever he wants, however reckless, I want to bring to readers' attention one section of the chapter in the book on Article II and the presidency, titled "On "Malfeasance" and "Misfeasance"; Why Criminal Presidents Present Less of a Threat than "Merely" Incompetnet Ones." In that section, I argue that one of the worst legacies of the framers is a rigid, fixed-term presidency that can be escaped only if a president is indeed sufficiently criminal to meet whatever the "high crimes and misdemeanors" clause of the Impeachment Clause means. Although I am well aware that many people on the left believe that Bush has manifested his criminality by aspects of the war in Iraq, the NSA surveillance, and the like, it is, I believe, a sign of our constitutional pathology that we feel we must label him a criminal, about which there is reasonable debate, rather than a blithering incompetent, which seems more widely accepted across the political spectrum. (And, incidentally, one obvious problem with impeachment, under the current system, is that it would give us Dick Cheney as president, which would be even worse on almost any criteria. So then one must fantasize impeaching Cheney as well, which gives us Dennis Hastert, who no sane person would believe is competent to be president in today's complex world. Next in line is Ted Stevens (ditto).)

The scenario that Jack most ably (and frighteningly) sets out requires as the background condition that we, as a political order, are indeed trapped in what I call the "iron cage" of our constitutional structure. Almost any other political system in the world would be figuring out how to strip an incompetent menace like Bush of his political power. The best we can do is hope for a Democratic takeover of at least one house of Congress so that it can harass him with investigations. But, as Jack notes, there is simply no reason to believe that he will cooperate in any significant investigation. More than ever, we are moving/have moved to a Schmittian presidency, and the Constitution bequeathed us by James Madison and his friends apparently gives us no effective way of responding. George Mason in fact wanted to make "maladministration" impeachable, but Madison disagreed, arguing that would give too much power to Congress, and he thus insisted on a "misfeasance" (criminality) standard for impeachment. In this, as in many other areas, Madison may have been right for his particular time, but disastrous inasmuch as the Madisonian vision continues to smother us 220 years later.
Posted 11:10 PM by Sandy Levinson [link]