an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Tonight was the final episode of West Wing. I, for one, found it immensely moving in its emphasis on the peaceful transfer of power and the almost magisterial abruptness with which it's out with the old (Jed Bartlett) and in with the new (Matt Santos), symbolized by the movers coming in at 11:45 or so and stripping the Oval Office of Bartlett's personal affects and changing the presidential pictures. Indeed, given my previous posting about the whiff of fascism in the air, which I certainly don't recant, I think it is important to note that not even the biggest critics of Bush & Co. (of which I'd like to think I'm one) believe that he (or they) will move to cancel the 2008 elections and declare themselves in office for life. Nor, even more obviously--so obvious that it goes almost literally without saying--do we fear a military coup, for all of the talk of the (justified) revolt of the (former) generals against the egregious Donald Rumsfeld. It is not contradictory, I believe, to argue at one and the same time that Bush's conception of his prerogatives of office is dictatorial (or, if one prefers, "authoritarian" or "monarchical," which is Bruce Fein's term) AND that he gives no hint of rejecting the most basic norm of American constitutionalism, which is the opportunity to vote the rascals out in an election. I have no particular illusions about the circumstances of the last two elections, but the remedy, at least in part, is Joe Hill's (I think) "Don't Mourn; Organize."
There was one unfortunate mistake, at the very beginning of the program, when Ellen Santos is (properly) complaining about having Inauguration Day on January 20, during yet another icestorm in DC. Her husband says that we can blame that on Jefferson and Adams. That, of course, isn't true. Washington was inaugurated on April 30, and inaugurations after that were on March 4, until th3 20th amendment changed it to Jan. 20, which took place for the first time in 1937. (So, as I may have posted before, one can win a bar bet by asking someone to name the two presidents, who did not die during their first terms, whose first terms in office were in fact less than four years.)
Actually, if you phrased your bar bet that way, there would be a lot more than two. From the dates you give, the two obvious answers would be Washington and FDR; but how about Tyler, Fillmore, Andrew Johnson, Arthur, Coolidge, LBJ, and Ford?
And do you really think that if Bush plans to seize control through the military or otherwise to maintain power in 2008, he would be telling us now?
I read Sandy Levinson's 2003 article in FindLaw's Writ about how difficult it is to amend the constitution.
Comparing that purported flaw with the current article, above, depicting a smooth transition as term limits force the old president out, I am reminded of the founders' recent memory of the difficulty finding a way to transition from feudal monarchy to constitutional democracy. It is almost an anthropological sense, as territory filled with civilized settlements, and road banditry became less common, the need for a middle class and a renaissance overcame the need for a feudal lord, and, ultimately, for the monarch.
Looking at the turmoil over technological bugs in new voting apparatus, and the impetus congress provided by mandating rollout of the devices, I observe a horizon nearly as perplexing, this one, instead of worrying how to make the monarch into figurehead, is an exercise in science worship at a time when elections continue to be rife with ballot box shenanigans.
Perhaps the kind of amendment best hastily added to the constitution would be a mandate for the election thieves to evolve into a more benign and civilized kind of citizen.
Yet, maybe this is too much of a stretch, to call for modernizing the constitution at the same time as solidifying the reliability of our voting devices. Peculiar that mere gadgets become the barrier to fair elections.
Is it cause for concern that the fictional Presidents brought to us via TV's "West Wing" display greater wisdom and compassion than our actual President? On TV, that results from good acting and writing. In real life it results from bad acting and writing.