Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Our Constitution Gives Us the Worst of Both Worlds
|
Sunday, September 28, 2008
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: 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."
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.
Referring to the same quotation cited by Brett, I would ask Sandy, are you vying with McCain for the Impulsive, Impetuous, Impatient Award?
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.
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.....
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.
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.
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.
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.
"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.
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).
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.
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.
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.
A good friend can tell you what is the matter with you in a minute. He may not seem such a good friend after telling.
Post a Comment
Agen Judi Online Terpercaya
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |