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
If one were designing a new constitution, whether for the U.S., a state, or a foreign country, what would commend including the office of the vice-presidency or its equivalent, such as lieutenant governor with no independent responsibilities? The quick answer--it solves the succession problem--is true, but trivial. One could solve the succession problem through a legislative succession-in-office act, as we currently do beyond the VP, or, if one likes rigid solutions, one could put the line of succession in the Constitution itself, but, all importantly, not give the designated successor a fixed term. As Jonathan Chausovsky has suggested to me, although we obviously had VPs from the beginning, the only two who became presidents were Adams and Jefferson (by election, of course). Otherwise, for many years the president in effect used the office of Secretary of State to announce his designated successor. This, indeed, makes a lot of sense. As almost everyone recognizes, there's nothing particularly useful for a VP to do other than to wait around for the President to die. Although the Lieutenant Governor of Texas is a major political figure who in effect runs the Texas Senate, that's certainly not the role played by the President of the United States Senate. Moreover, service as Secretary of State is extremely useful in demonstrating the putative president's capacity for judgment (not to mention ability to manage a bureaucracy and an education in foreign policy). If he/she fails the test, then the president can axe him/her and find someone more suited to inhabit the Oval Office should it prove necessary.
People far more cautious than I, including Professor David Currie in his invaluable study of the Constitution in Congress, have wondered what commends the vice presidency. Perhaps the office made sense in 1787. As I've said so many times before, I have no interest in either praising or bashing the Framers. The question has to be whether we should feel locked into their solution in 2007. Why in the world should we. It's a miserable office with a high rate of unsuitable picks (since World War II: Alben Barkley, Richard Nixon, Bill Miller, Spiro Agnew, Dan Quayle, Admiral Stockdale, and, arguably, Joe Lieberman and John Edwards. Dick Cheney is in a class by himself: I.e., someone who, like James Buchanan, has a superb resume that easily qualified him on paper, but who, like Buchanan when he became president, has absolutely miserable judgment and temperament that has taken the country to the brink (at least) of disaster.
If we were anthropologists studying a foreign tribe called "The United States of America," we would marvel at its baroque institutions and irrational faith in the wisdom of long-dead elders. Though there are many examples, the vice-presidency certainly would be one of them.
New Jersey voters approved a constitutional amendment in November of 2005 that, for the first time, provides for a lieutenant governor, who will be elected with the governor starting in 2009. Prior to that development, the NJ Constitution had stipulated for the president of the senate would become the governor in the event of a vacancy, which has happened twice in recent years.
Assuming you're serious, we tried that already and it led to bitter factionalism within the Executive Branch. Election of 1796 demonstrates that. You could probably fix the quirk that led to Election of 1800 issues, but why would you want to? If you're going to have a Vice-Presidency, it might as well advance the agenda of the Executive and add a further impediment to enacting policy.
Also, Nixon became President. Was Prof. Levinson just referring to events soon after the Constitutional founding?
I was referring only to VP picks. George HW Bush was a fine pick in terms of his experience, resume, and, as it turned out, his basic judgment. I didn't mention Gore because he, too, was a completely plausible pick (as I conceded that Cheney was).
I should have mentioned Van Buren. I was thinking of our "early" presidents, but Jackson is close enough. I note, though, that his first VP was Calhoun, which cuts both ways. He was, in some ways, qualified, though one can easily think that it would have been absolutely disastrous had he become president.
As I've written earlier, I think it is important that any succession plan not bring about a change in party control. That was, presumably, one factor behind New Jersey's rejection of succession in the president of the Senate, who could easily be of the opposite party. But there are easier ways of handling this than electing a "do-nothing" lieutenant governor who may be selected only for very short-term political calculations and not at all (or at least very much) with regard to his/her qualifications to be governor.
we tried that already and it led to bitter factionalism within the Executive Branch. Election of 1796 demonstrates that.
I'm not aware of any problems within the Executive Branch caused by Jefferson's role as VP. His conduct as Secretary of State and Hamilton's as Treasury Secretary disrupted the Executive Branch far more. The VP has so little formal power that it would be hard for any VP to actually disrupt much.
There have been VP's who tried: Burr, Clinton (George), and Calhoun all did. They plotted against the Administration (in general without effect) and cast an occasional tie-breaking vote in the Senate. If that's the worst we have to fear from a VP of the opposite party, then I personally think it's worth the cost of avoiding some of those Prof. Levinson mentioned.
I think it is important that any succession plan not bring about a change in party control.
I'm not sure I agree, but I do think that there need to be safeguards in case the VP is of a different party. We do want to avoid purely partisan removals of the President. One possibility might be to allow the VP to succeed in order to fill out the current term, but then make him/her ineligible for any future office, state or federal.
Well the VP also casts tie-breakers in the Senate. Constitutionally the VP does little else (except waiting for the President to pass on). But intitutionally, starting with Carter, the VP has become an influential advisor for the President, something like a chief-chief-of-staff.
I'm not aware of any particular qualifications that Barkley had to be President. By all accounts, he was an amiable man who told good stories. He was also 71 at the time of his election to the vice presidency. I don't want to be too ageist, but I think that counts as an additional mark against Truman's choosing him. It only underscored the basic contempt with which most most presidents treated the office. Truman was not a genuinely reflective choice on FDR's part; we're extremely lucky that he was as good as he was. No sane political system relies on blind luck in such circumstances.
Well, Barkley had served in the House (1913-27) and the Senate (1927-49; Majority Leader, 1937-47, Minority Leader, 1947-49.) This may not have qualified him to be president, but suggests he was something more than just congressional chopped liver.