Balkinization: Our Constitution Gives Us the Worst of Both Worlds

Our Constitution Gives Us the Worst of Both Worlds

Sandy Levinson

I have been posting, perhaps tiresomely, on the extent to which our Constitution--and the realities of modern life--put in office a de facto "constitutional dictator" with regard to some domains, particularly military and foreign policy. I will not bother repeating myself on this, though I note that Nick Kristof has a fine column in today's NYTimes, titled "Impulsive, Impetuous, Impatient," on how we would probably all be dead had John McCain been in the Oval Office in 1962 during the Cuban Missile Crisis, when we really first experienced, in its full meaning, the extent to which our lives were in the hands of a single "Decider" (who, fortunately, rejected the advice of most of his McCain-like "wise men" to attack Cuba and precipitate World War III). But I want to call your attention to another fine article in today's Times, by Peter Baker, titled "Waiting to Lead (or Not)," which points to two grievous defects in our Constitution. One of them, of course, I also continue to harp on, which is our inability to fire a president in whom we've lost confidence. So we have the paradox that a person who has near-dictatorial legal powers in some areas has almost no "authority," of any kind, to persuade anyone with regard even to vital policies. Thus Baker writes:

. .. . [T]here were three not-quite presidents sitting at the table — one who still technically has the job but can’t get anyone to listen, and two others who have everyone’s undivided attention but don’t yet have the job.

The session with President Bush, Senator John McCain and Senator Barac Obama illustrated just how much power at the top of the nation’s political hierarchy has already fragmented, leaving a leadership void that complicated the path to consensus last week over the deepening turmoil on Wall Street. If Mr. Bush thought summoning the two major-party nominees would neatly yield bipartisan agreement behind his proposed $700 billion bailout, he quickly learned how steep that climb is with an election around the corner.

What is left, though, is uncertainty about whom to follow. “There’s no leadership; nobody’s leading,” said Pat Caddell, who was an adviser to President Jimmy Carter. “The country’s not looking to him to lead,” he said of Mr. Bush. “And the Congress couldn't lead an Easter egg hunt.”

The problem for Mr. Bush is that he has all the levers of the Oval Office without all of the authority. Even some of his own advisers concede that the country long ago tuned him out, and last week’s revolt by House Republicans against his initial economic plan demonstrated his trouble asserting command even of his own party. As Ed Rollins, the White House political director under Ronald Reagan, put it cruelly but crisply on CNN on Friday: “This isn't a lame-duck administration. This is a dead-duck administration.”

Can anyone, of any political stripe, really argue that we're being well-served by the constitutionally-mandated continuation, for even one more day, of George W. Bush in the Oval Office? But, of course, that may not be the worst of it. Baker also notes that George W. Bush will remain president even after he has been truly and justly repudiated on November 4 by the election of Barack Obama (or, for that matter, the John McCain who ever more proclaims that "I'm a maverick who hates Bush as much as you do"), since the Constitution postpones the inauguration of a new president until January 20. Those of you who just love the Constitution in its present form should consider that the original Constitution put off inauguration until March 4 (and, in postponed the first meeting of newly elected Congresses for13 months). These lunacies were addressed by the 20th Amendment, which established our current inauguration day and begins the first session of newly elected Congresses only seven weeks after election. So there is actual a model in our own constitutional history for addressing constitutional deficiencies. Past generations, sometimes led by such major national figures as Woodrow Wilson and Teddy Roosevelt, have been willing to ask how well the Constitution serves the nation (which is, after all the point of the Constitution).

January 20 is far closer, literally and figuratively, to March 4 than to November 4, and the costs of postponing the exit of the repudiated incumbent are far higher now than they were even in 1932-33, when the US had no effective government with regard to confronting the Great Depression. I applaud Baker's very fine article, but I am dismayed by the fact that, at the end of the day--or the article, our defective Constitution is taken as a given, and not something to be addressed in the same way, for example, we are finally addressing the failures of our (non-)regulation of financial markets. Why can't we have a serious national discussion about whether we also need reform of our most basic "regulatory institution," the Constitution?

What send me up the wall and makes me insufferablel to some of you is not that my ideas have been heard and found wanting, but, rather, that there is simply no serious national discussion about the Constitution at all, save for devotees of this blog and fans of Larry Sabato. I wish that more of you agreed with me, but I actually feel that I've gotten a fair hearing from those of you who don't. My complaint isn't with you. Rather, it's with the national punditry, including many writers I admire, who don't even consider the role played by the Constitution in our present unhappiness. They are no better than the "regulators" who were blind to what was going on at Enron or AIG. Their operative mantra was "The "free market" is wonderful, so let's leave it to its own devices." Well, look where that's gotten us. But we're doing the same with regard to another mantra, "Our Constitution is wonderful, so let's leave it (and us) to its own devices."

Posted 10:35 AM by Sandy Levinson [link]

Comments:

"Can anyone, of any political stripe, really argue that we're being well-served by the constitutionally-mandated continuation, for even one more day, of George W. Bush in the Oval Office?"

I can argue that we'd be worse served by a system which permitted a dysfunctional Congress to replace the executive at will. The incumbent Congress is actually less popular than the President at this point, and is just as un-fireable as Bush until the election, after which they will also continue to serve for a time.

The Constitution has scarcely been amended in any relevant aspect in many decades, you might take more seriously the possibility that it's our political culture, and not the Constitution, that's at fault.

# posted by

Brett : 11:34 AM

Referring to the same quotation cited by Brett, I would ask Sandy, are you vying with McCain for the Impulsive, Impetuous, Impatient Award?

# posted by

mattski : 11:50 AM

Let's concede for the moment that the current president has no "authority" in the sense of being entitled to a rebuttable presumption of correctness. How, then, do we explain the fact that the Administration got more or less what it wanted, in more of less its desired timeframe, on such a monumental piece of emergency legislation?

Is it that Mr. Paulsen has the authority that Bush lacks? Is it that Bush was able to coerce Congress to get what he wanted by using the constitutional powers of the presidency? Is it that the financial crisis admits of only one type of solution?

None of these answers seems to me to be right. I think we may have to revisit the assumption that the president lacks authority in the stated sense.

# posted by

pinkerd : 12:34 PM

I don't think I'n being any more "impulsive" or "impetuous" than a number of past Americans, including James Madison, Abraham Lincoln, Teddy Roosevelt, and Woodrow Wilson, for starters, who thought that our Constitution was less than perfect and merited amendment.

I agree with Brett that our political culture, one aspect of which is mindless veneration of our Constitution, is greatly at fault. Another problem is that Madison might be wrong: i.e., one can't have an "extended republic" once the numbers are so large that, as economists tell us, there's really no incentive for any particular individual to think seriously about public issues or, even more to the point, put the "public interest" ahead of his/her own private interest.

Finally, I think that the going ahead of the bailout is a testament to the "authority" of Henry Paulson, Ben Bernanke, and Barney Frank, who obviously have very different backgrounds and politics. But both are widely regarded as being extremely smart and knowledgeable, and if they say we're facing a cataclysm and need to do something, most of the rest of us belie them. If George Bush on his own says it, everyone correctly shrugs. If you want me to concede that Bush deserves some credit for appointing Paulson and Bernanke, I'll do so. As Nick Kristof points out in his NYTimes column today, Bush has made a number of adjustments in his second term, so that McCain is in fact running to the right of Bush on the only two issues that currectly matter, Iraq and confronting the economic meltdown. Not a comforting thought.....

# posted by

Sandy Levinson : 12:44 PM

I think you caught my drift Sandy. Bush does deserve some credit, but it's not just for appointing Paulson and Bernanke. It's for having the sense to back them in a time of crisis.

Not that Bush is another FDR, but sometimes having a first-rate intellect is not the essential quality for an American president in responding appropriately to an emergency.

# posted by

pinkerd : 12:57 PM

Moving inauguration day towards November does generate some issues--if we recall that one of the problems with the Florida "tie" in the 2000 election was the ability of the Republicans (abetted by the so-called librul media) to generate a crisis mentality, in which situation the resort to the Supreme Court was buttressed and in the end, a "singular" decision was issued making Mr. Bush president by fiat. Not that I disagree that a lame duck president isn't a problem.

# posted by

Beel : 1:35 PM

Like I've said before, some of us haven't read your book yet and may not have the time to, so it would be helpful if you included your recommendations in these posts. For instance, when do you think the President should be inaugurated? I think at least a month is needed to prepare.

# posted by

Asher : 2:17 PM

Sandy, I wouldn't contest that our Constitution is less than perfect, and I wouldn't pretend to know a fraction of what you know about it.

But I would say that your rhetoric about being Constitutionally constrained to suffer out the last months of the Bush administration is intemperate and damaging to your position. First of all because the Constitution does provide impeachment as a remedy and second because suffering some discomfort for the sake of respecting the law is crucial to making civilized society possible.

# posted by

mattski : 2:39 PM

"suffering some discomfort for the sake of respecting the law is crucial to making civilized society possible."

Of course. But this particular discomfort doesn't need to be suffered to make civilized society possible. Or at least, Levinson has to suffer it insofar as he doesn't commit random acts of violence in protest, but the law could be changed to eliminate his discomfort without destroying civilized society. So your point's kind of a non-starter.

# posted by

Asher : 2:53 PM

A precis of my critiques and implicit proposals can be found if you Google "Get Me Rewrite" (Boston Globe) or log onto (nb it's a very long web address): http://www.boston.com/news/globe/
[nospace]ideas/articles/2006/10/22/
[no space]get_me_rewrite/

But my main proposal is for a new constitutional convention, on the grounds that many (most, all) of the issues are genuinely difficult and, just as importantly, compromises would inevitably have to be made. So for all of my delusions of grandeur, I don't include a full-scale blueprint for everyone to sign on to.

beel is absolutely correct that moving up inauguration day has implications for the Electoral College, since the only defense for delaying inauguration beyond a week or two is the electoral college. (Moving inauguration up would also require, as a practical matter, that candidates do a better job of informing us prior to electio of their prospective cabinet, since they would have to start planning for the "transition" immediately upon receiving the nomination. One of the more ludicrous criticisms thrust at Obama is that he has been, in effect, "uppity" by already thinking of the transition instead of waiting to be elected. Serious candidates should be thinking about their administrations from the moment they declare their candidacies, since their success will ultimately depend on the quality of the people they appoint (save for those particular issue areas where the president is indeed the "Great Decider" with quask-dictatorial powers).

# posted by

Sandy Levinson : 3:05 PM

I'd support the move of inauguration day to December 1 or so, but I think it's important first to revamp the election process. We'd need to get rid of the EC (which we should do anyway), and we need to establish, nationwide, voting systems which can quickly and reliably count the votes.

As for Bush's role in this, I think we'll all learn in retrospect that he was a cypher (except to the extent that he was needed to not veto the bill). At least from the LA Times report this morning, it was McCain and Obama behind the scenes who were massaging Congress. That, I'll note, is a welcome change from McCain's irresponsible behavior last week.

If this is true, the Prof. Levinson's point stands. If he's worried about too many jeremiads, just consider how Nouriel Roubini has been vindicated in this economic crisis. Thinking about these issues before there's a crisis is, after all, what we expect professors to do.

# posted by

Mark Field : 4:38 PM

I think you could strike that "perhaps."

# posted by

sean : 7:31 PM

but the law could be changed to eliminate his discomfort without destroying civilized society.

Maybe I'm missing something but what was the proposed change to the law? Why isn't impeachment a sufficient remedy? (I'm open to an argument that impeachment is too difficult.)

More broadly, any change to the law to make it easier to remove a president who displeases us is going to make it easier for our political opponents to remove a president who pleases us very much.

# posted by

mattski : 6:17 AM

brett's comment is obviously true on its face, but a dysfunctional congress (basically a cabal of opportunists, some of whom have shame, but most with no shame at all and who view politics solely as a means of getting over) while no better than a presidency occupied by a privileged progeny of a powerful Texas Political clan (or historically, the privileged progeny of a New England Irish Catholic Clan at the height of the "cold war") only begs the real issue - and that is America was fashioned by white males with property who were determine to politically vouchsafe their legacy and wealth - hence the electoral college scam that passes for "direct democracy" in America. Of course this is the silent time-bomb that ticks away in the bowels of this presidential contest - the browning of America is diametrically opposed to the white supremacist nature of American political culture (which is why in a land of immigrants - immigration is such a divisive issue). The American electoral system is what permitted Bush-Republicans to steal two elections despite the popular vote -a theft most American and Western pundits would have ridiculed and condemned if it happened in Africa or Latin America. And the way the Republicans are behaving at present looks like an intro to another contested outcome at the polls resulting in an American President without a clear popular mandate. So the issue of constitutional amendment is vital indeed. Timely. Necessary. But the amendment needed is the abolishment of the Electoral College system, and the ratification of a democratic system of direct popular vote. Maybe, just maybe, such a system would produce a real and permanent "progressive" and popular opposition party, as neither of the two Parties that presently pass themselves off as "different" truly represent people on the grass-roots level. American theocracy is winner take all proposition - so lets not pretend that the low esteem the public have for both Bush and Congress represent a bad throw of the political dice - Americans like everyone else get the leaders they deserve - and since both republican and democratic administrations are responsible for the current state of affairs, I find it hard to believe that being leaderless for a couple of months will make much difference - the American empire has run on empty (debt) for a long time.

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