Balkinization: It may be morning in America, but the Constitution still plagues us

Comments:

Sandy:

It will be a minor miracle if Obama has his cabinet fully assembled in the next 13 weeks, nevertheless the thousands of political appointees he will appoint to run the bureaucracy.

Without his full team in place, there will be no one to draft a raft of legislation ready to enact by the time the next Congress gets into session.

The immediate transfer of power which you propose can only work in a parliamentary system where you elect parties with shadow governments ready to go. That is not and almost certainly will not be our system during our lifetimes.

# posted by

Bart DePalma : 10:39 AM

There are a variety of disquiet forces beginning to act this week in the wake of Obama's victory. The first was to define the election in terms of economics, brushing to the side the early "Change" memes, such as the war and Bush Administration war crimes. "This election was all about the economy," they say. Not quite, but D.C. self-preservation is rocking the media in full effect.

Secondly there is Parkinson's Law. It doesn't matter how many weeks or months it "should" take for the transition to occur, the job will be done in however much time is allotted. If it were two weeks between election and inauguration, the cabinet would be solidified posthaste and likely would be sketched out in detail (oxymoron?) prior to the election itself. This is not controversial, these are smart people who have some idea of what they're trying to do (besides "confuse Bart de Palma").

Thirdly, I am always skeptical of a hustle. If a political operative says something needs to be done yesterday, you can be 90% sure they're pulling a fast one or doing it for reasons other than those stated. The degree of detail available is always proportional to the amount of time available to apprise oneself.

# posted by

Eric : 11:31 AM

Paul Krugman agrees with you:

"Any way we can get current management at Treasury to take early retirement, and get the new guys in right away?"

# posted by

Mark Field : 12:24 PM

I hate to agree with Bart, but he's right and Professor Levinson is wrong. You can't take over something as complex as the US government in such a short period of time.

The best we can hope for is that outgoing Presidents (of both parties) act in good faith during the transition process and that everyone works together.

# posted by

Dilan : 1:17 PM

Maybe you should, if not take Secretary Christopher's comments on faith, at least consider that he knows whereof he speaks and that transitions might actually take some time.

# posted by

Asher : 2:17 PM

Paul Krugman and Mark Field would be more persuasive if they explained what the new policy will be at Treasury, how it will be different from the current policy, and why the current Treasury staff is refusing to implement it. Note, incidentally, that monetary policy is primarily controlled by the Federal Reserve, and Ben Bernanke isn't going anywhere, and fiscal stimulus requires Congressional approval, so long as we are still bound by the Constitution.

# posted by

sean : 5:30 PM

When Congress convenes in the next few weeks, will Senator Obama be under any separation of powers constraints due to his being President-Elect? From a legal standpoint, probably not, but maybe as a practical, political matter. Will he participate actively in the Senate while it is in session? I do not think he will resign.

# posted by

Shag from Brookline : 5:40 PM

I'll let Joseph Stiglitz explain for me:

"The Bush administration has finally come around to doing what every economist urged it to do: put more equity into the banks. But, as always, the devil is in the details, and US treasury secretary Henry Paulson may have succeeded in subverting even this good idea; he seems to have figured out how to recapitalise the banks in such a way that it may not result in resumption of lending, which would bode poorly for the economy.

Most importantly, the terms that Paulson got for the capital provided to America's banks were far worse than those obtained by Gordon Brown (not to mention those that Warren Buffett got for putting far less into America's soundest investment bank, Goldman Sachs). Share prices show that investors believe that they got a really good deal."

# posted by

Mark Field : 7:45 PM

If Cheney were to resign early, who would pardon Bush after he resigns an hour before Obama is sworn in?

# posted by

Hank Gillette : 8:00 PM

Though the shadow Cabinet idea has some merit, and some argument can be made around the edges on the time issue, think for a moment, SL.

For something a fraction of the size of the U.S., some period of transition would be a good idea. We also should really have some wiggle room (see 2000) between Election Day and the day we count the ballots.

The candidate is going to being campaigning and only have a fraction of his/her people in place by Election Day. Are they going to be credibly ready to start running w/o multiple weeks of prep? Factor in the holidays, just how little time do you want?

You find the current bunch a threat to our safety. Putting in a place rushing the new group in is also a threat.

"Plagues" here (again) means "deals with realities that don't disappear just because we don't like them"

"requires Congressional approval"

And, they await the new President.

# posted by

Joe : 8:38 PM

sean: "...so long as we are still bound by the Constitution."

Much as Scalia lost his aversion to the counter-majoritarian nature of the high bench when the Democratic Party gained power in Congress, the right wing has similarly, by coincidence it would seem, discovered this odd old document called the Constitution. These same folks were no where to be seen when the exiting administration made move after move to subvert said document (with the MCA, DTA, warrantless domestic wiretapping, AUMF 2001, waterboarding, &c) and, indeed, "fuzzy headed liberals" were derided for over-reliance and too-frequent reference to that silly piece of parchment.

No longer.

I'm in Palm Desert, California, this weekend, and had the opportunity to hear Jay Sekulow on Christian Radio while searching in vain for something worth listening to. His current mantra is a "sales" pitch for a free booklet, Foundations of Freedom. Odd, the online ad doesn't mention inclusion of the 10 Commandments, but that was a salient part of the radio pitch. (I called in and ordered a copy---and was subjected to almost 10 minutes of non-figurative sales pitches, mostly to sign up with a cellular service "affiliated" with ACLJ.)

Seems folks like Sekulow think the Consitution is for losers. Now that extremist Christian fundamentalism has been dealt a setback (at least vis a vis the White House) these folks would like to wrap themselves in the Constitution---well the Constitution and the 10 Commandments. But there's no reason for the likes of Sekulow to worry. Liberalism embraces Constitutionalism and individual rights for all, underdog and fatcat alike. That is one important trait that sets the international, interracial, intellectual liberals apart from the bigotry and ignorance of extremist Christian fundamentalism.

Next question: Is there a better resource than the ACLJ site for previewing the inevitable positions parroted by local rightwing trolls?

# posted by

Robert Link : 8:46 PM

In what world is 10 weeks, when faced with a presumptively "urgent" crisis, "mere"?

Sandy is misreading Christopher here. Christopher is saying that 10 weeks is an extremely short time to complete the "enormous undertaking" of putting together an administration. Christopher makes very clear that getting a new team in place faster would be desirable. It just isn't possible.

Warren Christopher and other "old-hands" who quite literally cannot comprehend that we should have the same willingness to challenge constitutional verities

Again, Sandy is misreading Christopher, and rather uncharitably I would add. Christopher makes no argument about "constitutional verities," the wisdom of the founding fathers, or anything of the sort. Again, Christopher, who ought to know, makes clear that 10 weeks is a very short time to complete just the major tasks of the transition. Even on January 20th, 1000s of appointments will have yet been made.

Obviously much of Sandy's post is sarcastic, so perhaps he's intentionally misreading Christopher. But every post of Sandy's I've seen on this topic is so completely oblivious to the practical difficulties of taking over the government, that I think he just doesn't understand Christopher's rather obvious points.

# posted by

Unknown : 8:54 PM

Robert Link said:

Odd, the online ad doesn't mention inclusion of the 10 Commandments, but that was a salient part of the radio pitch.

Or, as Rep. Lynn Westmoreland of Georgia now calls them, the 2 1/2 Commandments.

# posted by

Hank Gillette : 9:09 PM

@Hank,

Had to google that one. Here's a treat from ancillary reading:

--quoting NYT---
When he was asked if he really meant to use the word — a racial slur of longstanding — he repeated it:”Yeah, uppity.”

You can listen to the exchange here.

After Rep. Westmoreland was roundly criticized for using the word, he offered up a novel defense. He said in a statement:

[NYT Quoting Westmoreland]
I’ve never heard that term used in a racially derogatory sense. It is important to note that the dictionary definition of ‘uppity’ is ‘affecting an air of inflated self-esteem — snobbish.’ That’s what we meant by uppity when we used it in the mill village where I grew up"
[end NYT Quoting Westmoreland]
---end quoting NYT---

Now, that's not only an obvious lie, but a stupid obvious lie. Why do folks even bother?

# posted by

Robert Link : 9:30 PM

As long as we're going off topic, could we talk about another criticism of the Constitution Levinson's made? One of the striking things about presidential elections is how very small margins in the popular vote translate into huge margins in the electoral college. Now, this disproportionality doesn't matter at all - it doesn't hurt McCain that he only got 174 electoral votes instead of the 245 or so he would've gotten if the EC were perfectly proportional, a loss is a loss - but it got to me thinking about how remarkable it is that our Senate roughly conforms to the actual partisan balance in the electorate. The reason the Senate is so proportional vis-a-vis how people actually vote, given the grossly disproportional setup, is that the winner take all effect, which magnifies small margins of victory, is canceled out by the overrepresentation of small states. So let's say the Senate were just like the Electoral College. California would have 54 Senators, and each one would be elected by the whole state. Alaska, meanwhile, still has its 2. What would happen is you'd have a 70% Democratic Senate, just as we now have a 70% Electoral College. By overrepresenting the small Republican states, you cancel out the winner-take-all distortion and get a fairly proportional outcome.

# posted by

Asher : 10:56 PM

@tray,

Can only imagine that reasoned, thoughtful "off-topic" posts like yours are vastly more welcome than much of the "on-topic" yapping and trolling we get here.

Does the effect you report hold true historically? Might it be a temporally local phenomenon or do you think it's really a natural systemic outgrowth?

# posted by

Robert Link : 11:03 PM

"Senate roughly conforms to the actual partisan balance in the electorate"

A historical look probably will show this doesn't always work, but look at the 2008 House results. They also are fairly reflective as compared to the winner take all EC results.

This takes us to Nebraska and Maine. I read a report that Obama won a stray electoral vote in NE. Stray electoral votes led to the Adams/Jefferson win in 1796, leading to the push for winner take all.

IIRC, Madison favored the district by district method of allotting EC votes. It wouldn't have changed various elections, though if Fl joined NE/ME in 2000, it might have. And, it tempers some aspects of the EC some deem negative.

And, raising 2000, various reforms not involving amending the Constitution could also have led to Florida going for Gore, another case where the cynicism of SL on reform being possible can be disputed.

# posted by

Joe : 8:26 AM

"Now, that's not only an obvious lie, but a stupid obvious lie. Why do folks even bother?"

I hate to burst your bubble, but the liberal "racist code speak" decoder ring is only issued to liberals, the rest of us frequently have no clue what word you're going to size on next as a racist slur.

These words have racially neutral meanings, and that's how most of us use them.

# posted by

Brett : 10:31 AM

Brett, if you believe Westmoreland, I have a bridge in Ketchikan I'd like to sell you.

# posted by

Mark Field : 10:38 AM

@Brett: "These words have racially neutral meanings, and that's how most of us use them."

@Westmoreland: "I’ve never heard that term used in a racially derogatory sense."

It is one thing to argue a speaker intended only a raciallly neutral denotive meaning of a particular word. Such a claim, however implausible, is hard to refute. It is another thing to claim such usage is standard in one's social circles. It may be plausible or implausible, but at least such a claim is open to verification. But it is entirely beyond the pale to claim total ignorance of the statistically most frequent lexical pairing of a word, which in this case is with a racial epithet so volatile that one who will readily type "fuck" will shudder to type "the N-word". (In fairness, reference to statistics here is not based on textual use but spoken use. I will gladly stand down on "statistically most frequent lexical pairing" any time someone can produce credible empirical research to counter my claim. Meanwhile, honest folks can ask themselves what word they most frequently hear after the word uppity.)

It's kindof funny to see how the extremist Christians are trying to appropriate concepts like coding after having so recently been embarassed by Palin's affection for "The Real[ly White] America".

Two good links on the uppity flap:

Uppity (via Language Log)

Word of the Week: Uppity (via Fritinancy)

# posted by

Robert Link : 11:15 AM

A historical look probably will show this doesn't always work, but look at the 2008 House results. They also are fairly reflective as compared to the winner take all EC results.

Well of course the House would be fairly proportional, the more districts you make, the closer you get to proportionality (though gerrymandering may lead to distortion). As for whether this effect has always worked in the Senate, you'd have to really add up the votes cast in each election and see how closely the composition of the Senate and the ratio of Republican to Democratic votes cast matched up. Just eyeballing it, there are some funny-looking elections - in 1960, when JFK squeaked out a victory, there were 64 Democratic Senators. In that election, though, the Dems actually had a net loss of one - the big gains came in 1958. '72's a little weirder - huge landslide for Nixon, net gain of 2 for the Democrats and a 56-44 majority. You'd have to total the votes up, but it does look like the Democrats might have outperformed their actual share of the vote; many of their victories were by quite slim margins while the Republican wins were more convincing. Again, in 84, Reagan won by a landslide but his party lost 2 seats and dropped to a 53-47 margin. The only recent instance, though, where a presidential landslide was magnified into a really lopsided majority in the Senate is 1936, when the Democrats controlled all but 16 seats.

# posted by

Asher : 2:42 PM

@tray,

Thanks for getting back with some numbers on that. Sounds as though there are exceptions enough to, if not quite swallow the rule, to at least nip it in the keister. Still, an interesting observation. If I was in that kind of program I'd say it's worth a paper on SSRN.

# posted by

Robert Link : 2:55 PM

In this context, it's worth noting that, despite the complaints about it being theoretically possible for some tiny minority of the population to block a constitutional amendment, due to the state by state ratification, that the ERA went down to flames at the hands of a selection of states whose population comprised almost exactly the same fraction of the total US population as the count of states did of 50.

Man, it's a good thing you can keep breathing while typing! ;)

"Meanwhile, honest folks can ask themselves what word they most frequently hear after the word uppity."

Until the recent controversy, I DIDN'T hear the word uppity. My acquaintance with it, until the recent fuss, was almost entirely due to an unabridged dictionary. Which didn't use "uppity black" as it's example of appropriate usage. And I seriously doubt there'd be any point in doing a search online NOW, as the very controversy has effectively googlebombed the linkage.

# posted by

Brett : 3:04 PM

@Brett,

Regarding your observations about ERA, is it wise to reason from a single datum? Tray offered an observation, and when asked quite graciously offered a wider data set which left the matter in play. Typically that's the better way to do things.

Regarding your claim that you never heard the word uppity until recently, even stipulating you are correct (which is to say, not only honestly reporting your recollections, which I must accept at face value, but also accurately reporting a lifetime of hearing conversations, movie dialog, &c) it is not in the slightest bit plausible that Westmoreland (nor McCain nor anyone else on the campaign trails) was ignorant of the viscous connotations of that word.

As for finding a dictionary that lists "uppity nigger" (or "bitch" or "faggot" or "kike") as proper usage, I think you have missed the boat. No one outside the Klan or the National Socialist party would say those are "proper usages". It remains they are the most common pairings, with the first example being the paradigm on which other examples are based. Uppity is most often paired with an epithet to create a complaint that the speaker, assuming themselves to be superior to the subject of the epithet, deems the subject to be of a despised underclass and singled out for efforts to break free of that underclass, most notably the underclass of slave/former-slave (which is why anti-woman usage is second only to anti-African-American usage).

As for checking online, I offered you better than a google search. Did you check those links? Uppity entered the literature with the Uncle Remus stories. "Uppity nigger" is recognized as a sufficiently common epithet in 1952 to have made mention in the OED entry for uppity.

Westmoreland's claim never to have heard such a usage is not only an obvious lie, but a stupid obvious lie. It is the kind of thing one expects from folks who rely on generally anti-intellectual sentiments to shield them from scrutiny and accountability for their hateful and idiotic statements, and the good lord knows there's been plenty of that ever since Rush and Bill and Ann started cashing in on the GOP's romancing of extremist Christianity. But maybe, just maybe, the election of a (dare I say it again?) international interracial intellectual heralds at least a mild ebb of the anti-intellectual tide.

# posted by

Robert Link : 3:47 PM

Tray ...

The "cancel out" effects are not inherent to how the Senate is set up. It depends on the nature of the small states in question. There are pretty solid red zones left in two areas of the country, if one looks at the presidential electoral map in 2008.

This is not some given. If the states, for whatever reason, were split, things might be different. Your comments seems to give too much credit to the Senate than it seems to deserve on (ironically) majortarian grounds. ("fairly proportional")

The SL 'solution' is likely to be to apportion the Senate like the House to better reflect the population as a whole.

The history also has to be put in context. WHY 64 "Democrats" in 1960? In fact, many were Southerners, who would now be Republicans. Discrimination also suggests the "partisan" split also was skewered.

Relatedly, a Dem from LA even today is not really akin to a Dem from NY. They are not quite fungible. Dem control would not necessarily reflect the majority will; the Senate was set up with certain groups in mind after all. It would thus be strange if all benefited "fairly proportionally" when it was set up to skewer things to some degree.

And, the "winner take all" issue arises in Senate elections too. Even dye in the wool Red states (and vice versa) have a chunk of members from the other party. This is especially telling in big states.

I'd add that in practice small minorities in the Senate do not seem to have "fairly proportional" power either, since they don't all act in the same way. Such is why I don't think the Senate should simply act on a "winner take all" basis as currently set up.

# posted by

Joe : 5:38 PM

Joe, how exactly does that SL solution work? Each state, I suppose, gets senators in proportion to their population, but who elects the senators? The whole state, or districts? My point is that, if the whole state did it (say you're a Californian, you just vote for a slate of 54 Republicans or 54 Democrats, unless you're one of those rare well-informed voters and you mix and match a little), then you'd have massive distortion. Unless, of course, you go to party-list proportional representation - 60% vote for the Democratic list, 40% for the Republican, ergo, 22 Republican Senators and 32 Democrats. That's fair enough. But (a) Americans have a strange prejudice against PR, and (b) you can't district the Senate and turn it into another House, the whole point of the Senate is that Senators are supposed to represent their whole state, not just their parochial bailiwick. So what reforms are practically possible? Apportioning Senators by population, but that would lead to gross disproportionality. Whereas the system we've got, paradoxical though it may be, does a decent job of mirroring voter preferences.

# posted by

Asher : 6:05 PM

And I should say that '72 and '84 don't really disprove my hypothesis. Nixon's 72 campaign and RNC was famous for devoting precious little resources to Republican congressional candidates, and Nixon's ads never mentioned that he was a Republican. Most of the good ones were put out by a sham Nixon-funded group they called "Democrats For Nixon." Couple that with Nixon's consensus, for the most part, with the Dems on all sorts of domestic policy issues, and you can see why an electorate that was crazy about Nixon didn't have any problem voting Democratic in Senatorial elections. 84's a little tougher to explain, but most of the Democratic Senators up for election were conservative Southerners or just really popular (Bradley, Claiborne Pell, David Boren, Biden). Really just a tough year for Republicans to pick up seats. The 1980 election, where Republicans picked up 12 seats en route to a 53-47 majority, is a lot more friendly to my theory. Although you could argue that the Republicans overperformed vis-a-vis how Reagan did that year. In 35 races, Republicans went 23-12.

# posted by

Asher : 6:23 PM

Bart and Dilan argue that a fast handover is impracticable. Bart: "The immediate transfer of power which you propose can only work in a parliamentary system."
The last time I looked France had a presidential system. Article 7 of the constitution provides that he second round of the election must take place no sooner than 35 days before the expiry of the current presidential mandate. The transitions have always seemed to work OK.
France changes a fairly high number of top jobs when governments change, more than the UK - ministers appoint new "cabinets" or private offices. In addition, the new President has to appoint a new Prime Minister who in turn sets up a government, an complication unknown in the USA.

# posted by

James Wimberley : 6:54 PM

Actually, I don't have a firm "solution" to the problem of the Senate. That's one of the reasons I want a convention, so that there can be a thoughtful and extended debate about what a good solution might look like. I wouldn't favor electing senators on the same geographic basis as representatives, because one of my criticisms of Congress is that every single official is a "local" official, with no one (save for those contemplating future runs for the White House) having an incentive to take a national perspective. So I rather like the German (and New Zealand) system of combining geographical with proportional party representation. Or perhaps we'd keep some version of the present 100 senators but add another 50 or 100 chosen in national elections. (Another problem with Congress is tht there aren't enough members: There has been no increase since 1959 even though the population is 60% higher and the agenda before Congress incomparably greater than 50 years ago.)

# posted by

Sandy Levinson : 11:19 PM

But in an America where everybody didn't have a mysterious paranoia of PR, what would you do? Because both of your suggestions involve PR, I think, unless for the extra 50 chosen by national election we separately voted on Seat 1 and Seat 2 and Seat 3 and Seat 4 and Seat 5...

# posted by

Asher : 1:10 AM

It's a little late in this thread, but I ran across this story last night in Harold Holzer's new book, "Lincoln, President Elect" (p. 171):

"Lincoln, too, yearned for Inauguration Day to arrive. "I would willingly take out of my life a period in years equal to the two months which intervene between now and my inauguration to take the oath of office now," he told his friend Joseph Gillespie. Gillespie ... asked why.

...Lincoln replied with "more bitterness" than Gillespie had ever heard him express. "Because every hour adds to the difficulties I am called upon to meet, and the present Administration does nothing to check the tendency toward dissolution. I, who have been called to meet this awful responsibility, am compelled to remain here, doing nothing to avert it or lessen its force when it comes to me."

# posted by

Mark Field : 10:56 AM

This comment has been removed by the author.

# posted by

Robert Link : 9:24 PM

tray: "And I should say that '72 and '84 don't really disprove my hypothesis."

I didn't mean to imply that they did. My aim was to honor your honesty for including counter examples at all. I think reasonable folks of good faith can disagree on your hypothesis. I think it would be a great paper for an enterprising academic to research. And I contrast that with Brett's sample-of-one reasoning w/r/t ERA.

Oh, and, Brett, I don't suppose you've ever seen the Mel Brooks classic, "Blazing Saddles?" I'm sure Lynn hasn't either.

# posted by

Robert Link : 9:50 PM

"SL": "That's one of the reasons I want a convention, so that there can be a thoughtful and extended debate about what a good solution might look like."

We have trouble getting even a modicum of "thoughtful and extended" debate here where there's really nothing substantive on the line. Do you seriously believe a Constitutional Convention, with all the marbles in play, is going to somehow be free of the race to the bottom tactics we saw in the funding of California's "Yes on 8" campaign or the kinds of shenanigans that lead to and resulted in Gore v. Bush? I know you are second to none in your belief in democratic action, but I have trouble believing you can be serious about wanting a Convention. I truly thought that was just an organizing motif for your book.

# posted by

Robert Link : 7:19 AM