How the Constitution affected the current race

Sandy Levinson

One should not ignore the extent to which our Constitution has structured, and not necessarily for the better, the current race. Consider only the indefensible bar of naturalized citizens from becoming President. Were it not for that, there can be no doubt whatsoever that Arnold Schwartzenegger would currently be a powerful force in the race, most likely, I suspect, as an independent candidate threatening to destroy the two-party duopoly. He might also have chosen to run as a Republican, though I suspect he would have accurately realized that the Sarah Palin-right would never accept anyone so progressive as he. Instead, he could have amassed sufficient funds to mount a serious national candidacy, with a similarly disgruntled Republican or Democrat (Michael Bloomberg?) as his running mate. Among other things, we would have heard none of the pernicious nonsense about how America's greatness is found only in small-town America and that urban America can simply be ignored.

Similarly, though less certainly, Jennifer Granholm might have been chosen by Barack Obama as his running mate, since she is the experienced governor of a battleground state whose collective ego needs some salving after the Michigan primary fiasco. To be sure, she's had a mixed record as governor. Unlike Palin, though, who has been able to take advantage of the run-up in oil prices to avoid making any tough budgetary decisions that aren't simply ideologically based (like cutting funding for an organization that works with teen-age mothers!), Granholm has had to make genuinely tough choices in a declining economy. But our defective Constitution has guaranteed that she, like Arnold, is off-limits to the American electorate.

There are, of course, other "constitutional dimensions" to this year's race, including the fact that Bill Clinton is ineligible to run for what might his fifth term in office. I take it that no one, including the most devoted conservatives who follow Balkinization, laments that George W. Bush is ineligible to run for a third term. As it happens, I have come basically to agree with the impulse behind the two-term limitation, though I would allow Congress, by a two-thirds vote (in order to guarantee bi-partisanship) to suspend the Amendment if, for example, we are at war and are blessed with a President of unusual diplomatic ability and military acumen (it could happen!). This might also require a similar willingness to deviate from our fixed-election timetable, so that suspending the Amendment wouldn't necessarily mean that the third-term president was guaranteed a full four years. If, for example, the war precipitating the suspension was over within a year, one could have a "regular" presidential election at the time of the next congressional elections (with the winner serving a full four years).

And, of course, the electoral college is also working its indefensible mischief, but enough has been said about that already in earlier postings.



Posted 4:41 PM by Sandy Levinson [link]