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Some religious adherents out here in the West (Utah) think the Constitution is divinely inspired. The fact that even now on the eve of the presidential election Bush can still order missile strikes into Pakistani agrarian towns and villages is another reason why the divinely inspired stuff is without basis and why the Constitution needs amending.

Here's another example of Bush's dictatorial powers in a story from the website of The Washington Post today reported by Ishtiaq Mahsud:

"Suspected U.S. missiles slammed into two villages close to the Afghan border Friday, killing 27 people, including an Arab al-Qaeda operative and other foreign fighters, intelligence officials said.

"The strikes raised the number of such attacks to at least 17 since August. The surge has angered many Pakistanis and strained a seven-year U.S. alliance with Pakistan, where rising violence is exacerbating economic problems and undermining the nuclear-armed country's stability."

So it seems in his final days bellicose Bush is determined to antagonize the entire population of Pakistan in his quest to kill a few "Al Qaeda types." It doesn't matter how many innocents are killed at the same time provided that the target person is killed. In the story from the WaPo, we see at least 27 lives taken. Imagine how many innocent children and families lost their lives.

Additionally, I wonder how the CIA guy who pushed the button firing the missile into the targeted home in Waziristan can sleep at night and whether he ever equates those children he killed with his own.

Some say this is legally justified by AUMA. But there must be a test of proportionality. To kill 27 people in order to kill one "Al Qaeda type" does not meet this test. Furthermore, I argue that even the killing of one innocent destroys the proportionality.

For this reason I find Bush's powers as president to order these strikes deeply troubling. Bush should have no authority to kill innocent civilians. His actions provide enough material to form the basis for charging him in the International Court with war crimes.

# posted by Roberto Antonio Hussein Eder : 4:29 PM
 

As I've commented before, if only at times in my imagination, your points regarding the weaknesses of the U.S. constitution have some validity, but only some and you don't seem to offer solutions (though I'd guess offering the same solutions with each complaint post would get even more redundant).

Firstly, from my view the problem isn't only with the constitution but with the elected members of government. No piece of paper can make people do what they should be doing. George W. Bush should have been removed from office long ago but instead we haven't even gotten close to any real examinations or investigations of the incompetence and malfeasance that has been wrought by this current group in control of America.

Sure, the lame duck period is an abomination. That was obvious during the Bush I administration when Bush, H.W., decided to screw the incoming president by engaging in a war in Somalia. That engagement was completely contrary to H.W.'s prior conviction not to attempt to "nation build" and certainly not to get involved in any situations that didn't have oil as a basis.

But the lame duck period is secondary to these executive edicts in that Bush would simply have done the same things earlier, anticipating November 4 rather than January 20. That means you're arguing for some sort of removal from office of a standing president rather than only the elimination of the lame duck period. In fact Bush is effecting these presidential orders early for the purpose of making their reversal by the next president more difficult. Clinton made that mistake with his lame duck edicts which were then almost immediately reversed by W.

It would appear that the lack of an ability for removal from office of an unpopular president outside of regular four year elections is the concern. There's impeachment and removal, which is in the constitution. But, as I've already mentioned, that has not been pursued, mainly because it would only be a political show rather than an effective action since there isn't the political will or majority to achieve removal from office. Too many of the elected officials don't have enough of a problem with the unpopular president. That represents a disconnect between the people and the representatives. That's certainly a problem and the constitution appears to have failed in that regard but I don't see that as related to the point you're trying to make - how to make America's sham representative democracy more real? Scratch impeachment as the removal path though you can't blame the constitution. At least not directly.

What about a "non-confidence" ability? I don't think this is that meaningful. At first glance it would seem an obvious answer. But in England, where Tony Blair was at least as incompetent as Bush, being Bush's famous lapdog, non-confidence was never attempted against Blair. There too the political will was too weak. Non-confidence might seem good but in practice it was no better than impeachment at removing incompetent unpopular leaders.

Recall!!? I don't see recall, based on my impression of its merits from what I've seen in California, as anything other than a political tool for the wealthy. California's governor was removed from office through a multi-million dollar campaign, which at its early stages might have included the future replacement governor. I'm thinking of actor Arnold Schwarzenegger's surprising presence at the strange meetings that included Ken Lay of the infamous "energy" company Enron and predated the manufactured California energy crisis, which was the key event that brought on the recall. At this point all the supposed failings of the recalled governor apply to the replacement governor and yet there isn't the slightest consideration of his recall. Recall would then seem to be based more on wealthy special interest political concerns than anything related to the health and welfare of the state - or nation.

What do you propose to solve the problem of the lack of a true representative democracy that seems to be at the heart of the matter? If they involve any of the items I've mentioned, how do you propose to overcome the lack of real political motivation for them to be effective? I think I've in the past suggested here that the constitution be high voltage wired to the people's representatives - wired where the sun don't shine - to ensure that its words are followed. But that's a fantasy, though no more so than faulting a piece of paper for what appear to be mainly the failings of people.

I remember during the 2004 presidential campaign there was a poll that listed what I would consider "liberal" values (probably ungodly and "socialist" at this point) and most of those polled believed that G.W. Bush represented those "liberal" values more than John Kerry did. It was amazing to me in that from my recollection of the poll the "values" were in stark contrast to Bush's history. Much of the problem with the lack of representative democracy is that the people don't have a clear idea of what policies and concerns the politicians really work towards. Maybe a competency test for voters? But that's been done and primarily to disenfranchise average people rather than enable accurate representative democracy. That in my view is the key - how people are informed of the actions and intentions of potential and elected officials. America does not have an information distribution system that enables an accurate representative democracy. Sure there's a massive information distribution system but what it distributes is more often contrary to promoting accurate representative democracy. Is that the constitution's fault? (Regarding accurate information distribution, blogs like this one are treasures for real democracy. Especially now.)

Forgive me for an appearance of snark. For the most part I agree with you regarding the failings that exist in the political system that is America. I'm not sure that all can be blamed on the constitution but you've made strong arguments that at least some are. I don't see strong points for solutions though, especially in light of the lack of political will that exists in America's political representatives in the face of a seemingly obvious criminal government.
 

There's no "t" in Schwarzenegger. "But there is one in terminated".
 

"Should President Obama be turned out of office in November, 2012, it will be no more legitimate for him to continue imposing his policies than it is for President Bush to be doing so in the waning days of his term."

True, completely legit = completely legit.
 

Gee Amos, I don't see any need for you to apologize -- our system could be a lot better than it is and still function badly with some of the clods and criminals we have operating it.
Even optimum systems aren't immune to GIGO.
 

In any halfway rationally run business security would take their keys, escort them off the premises and re-key all the locks.
 

As I have said, if Obama wins this election, George Bush will make Clinton's waning days look good by comparison -- and that's saying a lot.
 

Professor,

Your conclusion doesn't follow from your premises.

The reason it makes sense to have a period in between election day and inauguration day is to have an orderly transition. It allows whomever wins to take 2-3 months to consider who he wants to serve in senior positions in his administration before they have to get to work. Since picking government leaders is arguably the most important thing any president does, it makes a great deal of sense to give the president a chance to do it carefully.

The departing president does not have to wait until after election day to make unpopular decisions. It may make it easier to do so, but if inauguration day was the next day after election day, you can bet that a departing president -- that is, any president who can't or won't run again -- would simply make these decisions earlier in the term. It may reflect badly on his party, but what does he care? In fact if Bush were smart, he would change the BLM rules now, allowing McCain to savage him for it (and therefor to establish his independence from Bush) and it would still have absolutely no impact on whether Bush would be held accountable.

The only check on a departing president is their concern with what history will think of them, and if they don't care about that, or if the action is small enough that no one will notice or remember it, there is no constitutional change that will stop them from doing whatever they want. Closing the gap between November and January 20th is not going to make a whit of difference.
 

There are two important and, IMO, beneficial consequences which would follow from moving up the inauguration. The first is that the candidates would be forced to decide on their cabinet before the election. That would, I believe, become public, and we as voters would benefit from having that information. Second, if the outgoing president (whether the loser or a lame duck) were to make unpopular changes, there would be a political cost to them. Candidates from the same party might well have to announce their intent to reverse the policy. Putting candidates on record like that is also good for voters.
 

Amos Anan raises a lot of important questions. He's absolutely correct that moving up Inauguration Day scarcely corrects the problem with a president in whom we have long since lost confidence, and I have, of course, repeatedly argued for the benefits of a no-confidence procedure. That, however, is extremely controversial, as I have discovered. Getting rid of the election-inauguration hiatus, as I have tried to argue, should be much less controversial, since, with all due respect, there really is almost othing to be said for it. The argument that we need the time for the president to pick a cabinet is in fact a defect, rather than strength, of our present system. Candidates who now plan a two-year campaign can surely tell "we the people" in the last couple of months whom they will appoint--or at least be seriously considering--for the major positions in the cabinet. The only other argument for the hiatus involves electoral college breakdown, and I won't rehearse my arguments for getting rid of this excresence on the American system. But we don't have to get rid of the EC in order to move inauguaration day up. Simply have the electors meet, say, on November 18, and have the new Congress, which should take office at the same time, declare the election of a new president. If there is a deadlock in the EC, then the new Congress can break it, though preferably on a one member/one vote basis instead of the idiocy of one-state/one-vote.
 

So, what do you do in the event of election litigation? Or even manual recounts? Seems to me you'd have had Bush being signed in while Gore v Harris was still being decided.
 

A recount is implausible if we abolish the EC. It would be necessary to change the recount procedures to account for an earlier inauguration date if we keep the EC.
 

Sandy:

I am curious. Do you also support an immediate handover of Congress to the newly elected representatives and senators?

In any case, the problem to which you cite is actually the unconstitutional delegation of legislative power to the executive bureaucracy. Without this delegation, the timing of the transfer of power from the old to the new President is meaningless because the President could not spend that time enacting quasi legislative administrative rules.
 

What Amos Anan writes makes a lot of sense.

Parliamentary systems have their advantages and disadvantages, one advantage may be that not only the real (if not the theoretical head) of the executive, i.e., the Prime Minister, but also the individual ministers must have the confidence of the legislature and if a minister is doing a bad job, it is possible to call for his head on a plate while not necessarily bringing down the entire government. For example, the Home Office is a notorious ministerial graveyard. So the "no confidence" system has graduations of response without necessarily bringing down the whole edifice.

What Amos says about Blair is incidentally not quite right: Blair remained in office largely because in fields other than his alliance with Bush and his decision to participate in the "Enterprise of Iraq", he was thought to be making quite a good fist of things in other areas such as health, public finances and education. Prior to the remaking of the Conservative Party into a "one nation" party, the whips could (and did) turn round to restive Labour members and threaten them with a return of Thatcherism - and that was enough to give prospective rebels food for thought.

Perhaps the problem at House level is the gerrymandering of constituencies which means there are far too many "safe" seats. One's representatives become a lot more responsive to public opinion if they are not too assured of re-election.

Mark Field rightly says that things might be better if presidental candidates were able to announce their team before the election. I have a memory lurking that there is some provision of US electoral law prohibiting a candidate from offering an office to anyone prior to election. Could that not be fixed so as to allow candidates to nominate their leadership teams say two months before the day of the election so that the public could have some idea of the shape of the administration the candidate would put to work.
 

Brett:

So, what do you do in the event of election litigation? Or even manual recounts? Seems to me you'd have had Bush being signed in while Gore v Harris was still being decided.

It's not unknown for courts to overturn elections even after the person has been sworn in to office.

Of course, the electoral college throws a monkey wrench into such ... but the founders envisioned a non-partisan Congress solving such disputes as to the legitimacy of the electoral slates, not the courts.

Cheers,

Cheers,