Balkinization: "Don't Worry, Be Happy"

Comments:

Sorry, to frustrate you once again, but I don't agree with your critique on mine (and ours) in the post below. It is not that I don't agree with you that it's not harmful to keep a badly functioning president in function. It is that I don't like your sollution. You are willing to consider a whole new constitution, but you don't seem to be willing to let go of the function of a chosen president.

What I am saying, and you are not answering to this argument, is that a chose president has its own mandate. So my sollution to incompetent presidents is not to find a way to get rid of a particular president, but to find a valid system in which you can have a vote of confidence. A proper vote of confidence is only viable in a system in which the mandate of an administration is deducted from a majority in congress. Your president has it's own mandate (regardless whether this is a plurality or not). I am not saying that your system of a (super)majority would be undemocratic, but that it could not work because of the two competing mandates.

I am saying that if you are willing to go as far as to change your constitution to enter a rule of confidence, than do it the right way.

I actually handed you a way to get your vote of confidence now, without a change in the written constitution. In principle, given your system of two mandates, I am against this option of constitutional showdown, but it can be done.

As I stated in other threads started by you, the actual best way to change your sytem is to start a viable third party. By now there should be enough people frustrated by both parties to start something new.

# posted by

Anne : 5:38 PM

Yes, Sandy, we all understand that you really, really don't like George W. Bush. Well, guess what? I really, really didn't like William J. Clinton, and he stayed in office for six years after his party lost control of Congress. Oh, how horribly non-functional! [/sarcasm]

It is inherent in a democracy with opposing parties that members of one party will think office holders of the other party bad for the nation. If you actually want members of the party you obviously *don't* belong to, to agree with your assessment, you're going to have to come up with some kind of objective metric for "non-functional", that doesn't boil down to "somebody I don't like is still in office".

# posted by

Brett : 5:39 PM

@Brett: I agree with you that Sandy is letting his disgust with Bush getting the upper hand on him. But now you are denying that he is coming up with a democratic way to determine whether someone is "non-functional": a 2/3's majority. It is not objective and does not need to be objective. Congress can express the (subjective) will of the people they are representing.

By the way, did you just really really dislike Clinton, or did you really really honestly thought he was incompetent? I for one would not say that Bush is incompetent. He is a terrible leader that made awful mistakes... But for me incompetent is like saying that he has the mental capacity of a two year old, while Bush did pass Yale (don't care how he did it).

# posted by

Anne : 5:58 PM

Anne, if you think somebody is attempting to do the wrong things, (As I did with Clinton.) that they're doing the wrong thing competently is scarcely a consolation. If anything, it's an added black mark against them.

And you misunderstand my request for an objective criteria: Sandy says that the Constitution, not Bush, is "non-functional"; He merely points to Bush continuing in office as evidence of that.

Didn't hear that from him 12 years ago.

Meanwhile, offices change hands peacefully, taxes get collected, services delivered, the whole baroque mechanism sure looks like it's functioning. Maybe it's not opitimal, but that's not the same thing as broke.

# posted by

Brett : 6:25 PM

@Brett: actually the fact that they are doing it competently does mean a great deal to me. I (and from your response I guess you too) can live with a party being in power even if don't support that party. But there is a line that can be crossed after which I can't support the government as an institution. I know I run the risk of invoking Godwin's law, but the NSDAP got to power in a legitimate way. But I could name other examples: I wouldn't support an administration that has as a goal to set the Shari'a as law, even if they would come to power according to the rules.

# posted by

Anne : 6:44 PM

Sorry Brett, again, your snide allegations of partisanship don't hold up. A rather strong argument can be made that Bush is actually significantly worse, as suggested by the bipartisan critics who say just that. I know this might seem hard for some to understand, but think of it as a thought experiment.

This alleged clouding of his mind simply is not proven.

If you have proof that Prof. Levinson only makes this proposal when Republicans are in power, let us know. Likewise, the proposal is fairly uncontroversial to the extent "non-confidence" votes is a regular issue. Likewise, such proposals did not suddenly arise after 2000.

Finally, Levinson's interest in 'constitutional stupidities' of this sort didn't start now either. See a previous put in the 1990s that he edited on the topic. Or, as cited earlier, Prof. Amar's concern about the Electoral College, again written while Clinton was in office.

His proposal is a supermajority measure. So, if people wanted to try to use it against Clinton, fine. His proposal is not limited to those administrations with Republicans in control. Finally, again, Clinton was in no way comparably opposed on the competency angle as Bush.

As to Anne, I don't really understand how a third party solves anything. This doesn't address the problem of an incompetent (as compared to a criminal) president not being able to be removed for four years.

He is not concerned with partisan gridlock in particular. That too seems like a red herring.

And, Congress already has the power to impeach. Since the terms are broad, there is clearly room for prosecutorial discretion based on public will. The Supreme Court basically has decided their judgment in this area is not reversible.

Where's the mandate there? And, who chooses the President? He is chosen by the same electorate who votes in Congress. A 2/3 supermajority clearly would cover a majority of the people who voted for the Pres. in any usual situation.

And, in fact, I guess we can tweak the system so that the "no contest" vote would actually alone require a retention election. Thus, if the people actually still want the President, they can vote to keep him in.

# posted by

Joe : 8:19 PM

Professor Levinson:

My critics seem to see no cost in the retention in the White House of the worst president in our history.

With respect, are you now being more than a little overwrought?

Bush has many faults, but he is not the worst President in my lifetime, nevertheless in the history of the Republic. Here are Presidents whom I would consider worse just in my lifetime...

1) LBJ - First president to lose a war.

2) Nixon - Felon who appeased our enemies abroad and destroyed the economy at home. The worst because he was competent and should have known better.

3) Carter - The most incompetent president of my lifetime. Helped create the worst recession since the Great Depression and presided over the decline in US power to its lowest point since prior to WWII.

4) Clinton - Felon who did nothing as Islamic fascism grew into a genuine military threat. A waste of talent who was consumed with remaining popular.

Bush 43 falls in the same league as Ford and Bush 41 - the middling middle - some good some bad.

Bush 43 does not get close to Kennedy or especially Reagan.

# posted by

Bart DePalma : 8:27 PM

Let me begin by acknowledging that I find all citations to the Constitutional Convention basically irrelevant.... we should spend more time discussing the lessons of the American experience than engaging in what are nothing more, at the end of the day, than "arguments from authority."

I should make it clear that I cited the Convention debates not as authority -- I personally don't think they constitute authority -- but for the quality of reasoning. It's not like these are new issues. I find it valuable to see how other people, people who were very smart and devoted a great deal of time and energy to these problems, reasoned about them.

There is nothing at all "undemocratic" about 2/3 of the collective Congress (or 2/3 or each House, if one prefers that), having the power to displace a president in whom they have lost confidence.

Yes and no. As Anne has argued, the US operates under a system of concurrent democracy. Congress and the President receive their mandates from different electorates.

Those different mandates mean we have to be careful how we interpret them. The mere fact that the people chose a different Congress does NOT mean that they therefore want to remove the President. They may very well prefer divided government or the sense of stability they get from the continuation of the President in office.

Let's assume I agreed that Bush is the worst president in our history (I don't think he is -- horrible as Bush has been, I rate Buchanan and A. Johnson as worse; then again, Bush does have 26 more months in office.). In a very substantial sense, this cuts AGAINST your argument. Why change a system that has generally worked well for over two hundred years just to deal with the one "worst case" example?

Any change in the system would apply not just to Bush, but to every future President. This brings us back to the Convention debates which outline the flaws:

1. Intrigues in the Congress to remove and supplant the President. This is especially a problem given the current succession in office statute.

2. Regular disruption of the entire body politic over the status of the President, undermining the sense of stability which is particularly important given the status of the US in the world today. One look at the Clinton administration gives us some idea just how disruptive this might be.

3. Subservience of the President to Congress. The two-thirds rule you suggest minimizes this danger. There's no way to predict how much more often "impeachment" will occur nor how the public will view the process -- would Clinton, for example, have been removed under a looser system? Was he the intended target of the change?

4. Separation of powers. This gets us back to the issue discussed above regarding the different majorities which elect Congress and the President. It's hard to justify using one to undo the other. Some have suggested a recall procedure; that would have the virtue of avoiding this problem but might well create even more instability in the system.

I'm not convinced that any change is worth the cost.

# posted by

Mark Field : 9:25 PM

The 2/3 supermajority would, in all but truly exceptional circumstances that in fact have never once existed in our history, assure that any successful vote would have to be bi-partisan.

The key words being "in fact," right? On paper, the two currrent parties certainly have held 2/3 of the votes from time to time (Republicans in the 39th-41st, 43rd, 54th, and 67th Congresses; Democrats in the 52nd, 73rd - 75th, 89th, and 95th Congresses). In 7 of those 12 Congresses, the majority party held 2/3 of the seats in each house.

So, for 10-17% of the time between 1865 and now, the majority party would have been able to unilaterally cast a vote of no confidence.

Of course, whether their members would have all towed the party line is a different matter entirely!

I have to say that despite the excellent arguments made by Mark and Anne above, I am still rather enamored with the idea of the vote of no confidence.

My concern is over the potential for the executive branch to become the pawn of Congress; without some means of dissolving Congress, the power relationship seems rather one-sided. At the very least, there would need to be safeguards against Congressional abuse of such a power.

If it were to be implemented, though, I'd propose a mandatory motion of confidence each year on a set date soon after the President's State of the Union address (skipping inaugural years for obvious reasons). This allows the proceedings to be somewhat distant from the next election.

Let the President make the case to keep his administration in office, let the representatives have some time to gauge the reaction of their constituents, and then put it all up to a simple yea/no vote.

Implement a parliamentary procedure that requires a second motion of confidence immediately following a vote of no confidence thereby permitting Congress the ability to reprimand the administration without toppling it.

Making the vote mandatory and at a set interval would remove the ability of majority parties to call the vote at a politically opportune time (in the summer of an election year, for example). It would also provide each administration with an incentive to perform well between election years, since it's not a matter of "if", but "when" they will be called on the carpet.

A regular vote would also have the added benefit of not disrupting Congress' work to perform extended impeachment proceedings, unless the President's removal was too urgent to wait until the next February.

If the President gets a vote of confidence, his administration gets to serve another year. If he gets a vote of no confidence (and it is sustained in the second vote), he gets ousted in favor of his replacement. The replacement should be chosen and announced before Congress votes, so that everyone present is aware of the choice they are making.

If there's a way to prevent Congress from ping-ponging Presidents back into the electorate over trivial matters, then this idea is quite appealing to me as a means of checking the ever-expanding powers of the executive branch.

# posted by

PMS_CC : 11:48 PM

I will grant you, Sandy, that I would prefer Bush not being president for the remainder of his term. But I disagree with your sollution. In your highly partisan two party system there is such a bias towards keeping a president that it would hardly be impossible to vote any president out of the office. I don't think the new congress with the democratic majority could find 2/3's support to ouster Bush. If congress would not even vote no confidence in Bush, wouldn't the new rule be a dead letter from outset?

# posted by

Anne : 4:11 AM

@pms_chicago: you are coming up with a difficult sollution for the problem you see, while there is a simple one.

Our constitution does give the administration the power to dissolve Congress. In practise this works out as follows: Congress is elected every four years. After the election an administration is formed that can count on the support of a majority in the House. If memory serves me well we never had a one party majority.

Because the administration needs the support of a majority it will set out a broad program that this majority can agree on. So this majority has a reason to keep the administration in office: the administration is the best way to realize the promises the parties made in the election.

If there is support for a vote of no confidence than enough representatives from the parties that provided the administration with his majority, decided that they lost confidence in this administration and prefer to see them leave. This is a big step because now there are only two possibilities left: either their will be a new administration without new elections (if a new administration can be made has confidence of a majority in congres) or the house will be dissolved, new elections will be held and the outcome is unknown.

My sollution to your fear of a one sided power arrangement is to grant the administration the power to dissolve congress.

# posted by

Anne : 4:23 AM

Professor Levinson,

My concern with your suggestion is that your vision of democracy does not seem to have the "complexity" rich enough to govern effectively either. I consider the truest words spoken on political regimes to be Montesquieu's: "Many things govern men: climate, religion, laws, the maxims of government, examples of past things, mores and manners; a general spirit is formed as a result." (Book 19, Chapter 4) If you look at this list, many of the factors that go into the everyday workings of the regime (assuming it's a valid statement) are then at least partially non-govenrmental. I wonder if any change to the voting rules can really correct our course if the causes of what worries you are caught up in all of the tangled interrelations of these forces that come together and crystallize into important historical movements and moments.

You suggest that the Constitution ought to be more concerned with today than the past. I believe this is true, but references to the past to see what the Founders believed can be used not merely to make some inductive claim about how the Constitution will work today, but can also gives us insight to the careful consideration of how various people have tried to manage the state in their times. I doubt you would disagree with the distinction as you were, I believe, arguing against those who reify original understandings. The reason that I raise the distinction is to note that we still have to look back because the government is more than just decision rules - it is a nexus of tons of relationships, mired in its unending and always changing complexity, and changing a few rules here and there needs to be very carefully considered. We must consider such changes not simply on the merit of the rule in the abstract, but also in the context of how such changes alter all of the relations that form not only the institutional practice of our government and our aspirations for a good political regime.

I think it should be quite obvious that rampant majoritarianism, when majorities are subject to make decisions based on many of the contingent forces that are on Montesquieu's list, is not likely to produce solutions to the deeper problems in the ways you would hope for. Our regime is designed to provide statecraft in times when our leaders our greedy and not very smart. If it is not providing adequate statecraft in such cases, one can conclude that the desing does not work and needs revision, as you indicate. But we live in an age of overwhelming historical, social, and technological change. This change has facilitated an attitude that when statecraft fails, we need a change in leaders and decision rules that get us leaders. But, this view gives up on Republican statecraft from the beginning because it emphasizes selecting political leaders and the brueacratic agency of the state over the enormous, and widely distributed power in the people. Perhaps the real problem is that this power in the people has been used for economic gain at the cost of the republic a a whole. We have become that nation that Theodore Roosevelt warned of, the one focused on "ill-gotten wealth and ignoble prosperity" that will "perish, as it deserves to perish, from this earth." Our "general spirit" is a confused mess, and it would take far more than a different President to sort it out. In short, we do not need a new Constitution, but we need a revolution, and particularly, a new "revolutionary spirit."

Sincerely,
Steven Maloney

# posted by

Steven Maloney : 10:44 AM

Cass Sunstein's review of your "Our Undemocratic Constitution" (New Republic, Oct. 8) is pretty much on target.

The current Constitution is flawed and defective, particularly the institutions of the Senate, electoral college, and life tenure of judges. No one seriously disputes this. A time will come when these will need to be revised and/or eliminated.

But NOW is not that time. Its flaws notwithstanding, a new convention could easily create something far worse. If delegates to the convention reflected the current mood of the country, we'd all be in serious peril. So imperfect is better than something far worse. And a convention today is certain to produce just such a terror.

It should be obvious that this nation has lost touch with its own Enlightenment principles, and whether conservative or progressive that now dominates, "liberal" is not even polite terminology. So, if we want to put Evangelicals and Postmodernists in charge of a new constitution in order to repair an admitted set of defects, I think we need to pause and reflect that even the Founders' accomplishment, however flawed, was itself miraculous. If anyone thinks we can do better in this political climate, that's scarier yet.

One needs to get outside the university environment and "see" the world as it currently is. Noble aspirations meet concrete reality! Let's move to impeach, and leave the Constitution intact for now. It's bad enough without making it worse.

# posted by

Anonymous : 4:41 PM

I very much appreciate the most recent comments by Steven Maloney and The Gay Species. As I've said before, I think one problem with adverting to the notion of "republican statesmanship" endorsed by the Founders is that they presumed no parties and, therefore, a high degree of non-partisan virtue especially on the part of the president. The vision didn't survive 1800 (and probably didn't survive 1796, in fact). I am reminded of Robert Bork's attempt to defend his support for Brown, even though he's an originalist: What he said was that the 1868 framers presumed that one could have both equality and school segregation. They were, as an empirical matter, wrong, and one should prefer the value of equality, not least because it's the one they wrote down. I believe that the framers presumed that the presidentialist system would in fact preserve the kind of "Republican Form of Government" they all endorsed. In a variety of ways, that has proved to be wrong. Unlike school segretation, it is obvious that there is nothing "unconstitutional" about the fixed-term presidency and the lack of a no-confidence option, because the former, at least, is just what the Constitution says, and the latter can be inferred from the text of the Impeachment Clause. But one could still say that they were wrong in their empirical assumptions and that we should engage in a national conversation about how to rectify their mistake.

I think if we wait for an "optimal time" to have a convention, we'll never have one (which may, of course, turn out to the base). It's probably the case that most constitutional revision is attached to crisis. I obviously believe (though most of you think I'm wrong, and for all of our sakes I hope I am) that our Constitution increases, rather than decreases, the actual odds of a severe political crisis. (Think of it as an analogue to the Iraqi War and the question of whether it has in fact made the US more secure.) Thus my hope that we can repair it before the actual wreck occurs.

But the more serious question may precisely be the one raised by The Gay Species post, which is whether we have any genuine trust in our fellow citizens. There is good reason not to, but I actually believe that we may well overestimate the threat of actual democracy. A number of political scientists, including Morris Fiorina, have argued that the actual country is far less polarized than are the political activists (in part because of the consequences of partisan gerrymandering). The recent votes on popular referenda should offer political progressives some cause for optimism. I continue to wonder about the future of any "progressive" movement in which most of its adherents fundamentally mistrust the people in whose name they offer reforms. I have, on occasion, evoked Weimar analogies with regard to arguments made by the Bush Administration and the behavior of Congress in the last several years. But I don't think the country is anywhere close to Weimar in terms of the likelihood of giving support to truly virulent political parties. But I concede that this may be so much Jeffersonian whistling in the dark....

# posted by

Sandy Levinson : 10:58 PM

Professor Levinson: we may well overestimate the threat of actual democracy.

Sir, I hope I may be forgiven the arrogance of disagreeing with my betters, but while the good may be the enemy of the best, in terms of choosing a time for a Consitutional Convention, this is neither the best nor the good but rather the terrible. However, the words quoted above really resonate with me. I would love to have that kind of faith in my fellow American and in the process of democracy. Such a desire might be like the desire for the Easter Bunny and Santa Clause, but I admit I harbor such desire nonetheless, and I am thankful for your stating it so well. Forget the political scientists, my *heart* wants to believe in my fellow American, no matter what my cynical eye might say. I may disagree with your conclusion, but the nation you and I love is better for your efforts nonetheless.

Peace.

# posted by

Robert Link : 1:22 AM

Professor Levinson need not despair, and nor am I. The country periodically goes into the throes of extremism, which I think we all agree has been the case for the past decade. It will pass, and when it does, a convention should be considered. It would help immensely if we found "common ground," and I suggest we coalesce around the liberal principles used at our Founding and Reconstruction, and eschew the theocratic and social engineering extremes we seem to have split into. When critical mass gravitates toward a liberal orientation, then it will be prudent to move to democratize our democracy.

One of my personal concerns, which was not addressed by Susstein, is the lack of Madisonian impediments to "mobocracy" in Levinson's otherwise laudable list of reforms. It's a notable omission. However desirable a democratic republic, and certainly the more democratic the more desirable, one of the Madisonian insights was to impede rash mercurial reaction (i.e., mobocracy). We want the governed to govern, but we also want to build-in barriers to reactionary and rash spur-of-the-moment changes. Appeals to the Senate to serve this function just do not wash (it impedes self-governance, too). The Senate is the most illiberal and undemocratic aspect of our government. Electoral college a close second. Both must go or be drastically overhauled, but some mechanism to impede mobocracy must be substituted.

Does Prof. Levinson concur? If so, what would he propose?

# posted by

Anonymous : 3:50 AM

One of my personal concerns, which was not addressed by Susstein, is the lack of Madisonian impediments to "mobocracy" in Levinson's otherwise laudable list of reforms.

One of his proposals -- democratizing the Senate -- would itself create one of those "impediments to mobocracy". Remember what Madison said about the advantages of large republics in Federalist 10:

"The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,--is enjoyed by the Union over the States composing it."

The impact of the unrepresentative Senate on the “republican remedy” proposed in Federalist No. 10 can hardly be overstated. Madison’s entire argument depended on an “expanded sphere” in which it would be difficult to obtain an oppressive majority. The equality of representation in the Senate infects the national legislature with the vices of small republics which Madison worked so hard to avoid. Prof. Levinson's proposal would actually implement Madison's theory, democratizing the system and protecting against faction both at the same time.

# posted by

Mark Field : 12:14 PM

I very much appreciate Mark Field's comment and concur with it entirely. (So Madison speaks wisdom after all :)) I do think that one way we might lesson the risk of "mobocracy," ironically enough, is by diminishing the status--and in some respects, the power--of the President. That is, at least since Andrew Jackson (and Bruce Ackerman argues, Jefferson), many presidents have been happy to present themselves as "tribunes of the people." I present a number of reasons in my book as to why this is false empirically, given the perversities of the Electoral College, but it certainly doesn't stop presidents from asserting their special, sometimes almost Caesarist, status. To be sure, prime ministers in parliamentary systems often engage in the same self-presentation. Few political leaders who make it to the top of the greasy pole lack self-confidence and the inclination to identify their own views with those of the nation at large. This is, incidentally, one reason why I do not support a unicameralist parliamentary system (like the modern UK's). Although I don't like the current Senate, I agree with Mark Field that there is an extremely valuable function for a second chamber, including the structural protections against momentary mobocracy provided by the staggered terms.

# posted by

Sandy Levinson : 1:30 PM

Bicameralism and staggered legislative terms are certainly an effective tonic to mobocracy in theory (assuming both chambers are democratic representations). Certainly checks-and-balances are useful, too. Clearly, the "imperial presidency" has been a singular problem throughout our history, and especially acute these past six years.

Bicameralism may help impede mobocracy, but it also imposes another layer of inertia, discord, and self-interest, which in effect, also impedes governance (and theoretically leaves a vacuum for a ceasarist presidency). Somebody has to act! And hypothetically the three-democratic institutions (assuming the Senate is reformed) could, as it has, have entirely different agendas, exacerbated if controlled by different political parties, and rubber-stamped if controlled by the same party, or go its own way as has often been the case, exacerbated by staggered terms. The consequence is either nothing gets done, or all the wrong things get done, or the right things get done wrong. Take Medicare Part D and Social Security Retirement as prime examples.

My Madisonian proclivities aside, there must be a better way to impede mobocracy than with bicameralism, which also impedes governance. I think we want a responsive government, but not one that goes off half-cocked at the slightest whim or provocation. And when it does focus, we don't want it to create bad legislative programs through so much compromise that the "solution" itself becomes yet another problem. So I'm not ready to throw-in the towel to bicameralism to safeguard against mobocracy. It has too many problems of its own.

Keep those cogs turning, though, please!

# posted by

Anonymous : 4:42 PM

The obvious problem is that there's no perfect structure of government. The (justified) fear of mobocracy (also known as unimpeded majority rule) can lead one to supporting a frame that not only puts unwise impediments on a majority, but also, at the same time, allows a de facto tyranny of the minority through the inability to change an unfortunate (and perhaps even iniquitous) status quo. I certainly don't have a full solution to this conundrum. I think that ultimately we all decide what we fear more (i.e., the risk of stasis as against the risk of "mobocacy") and decide accordingly.

# posted by

Sandy Levinson : 2:24 PM