Balkinization: Reforming the Senate

Comments:

No way can I trust the Democrats with a Constitutional Convention (see my previous post about letting the car thieves take your car to the chop shop). I, for one, appreciate the Senate rules that provide a VALUABLE service to the country. I remember something about a saucer "cooling" hot tea?

Speaking of Ted Stevens, given his complete acquittal today, I fail to see why he's not qualified to be third in line for the Oval Office. He's certainly more experienced than our current occupant. Too bad this news didn't break BEFORE he lost his Senate seat.

# posted by

Charles : 12:26 PM

On July 16, 1787, the Constitution's framers arrived at the so-called "Great Compromise," which provided that states would be represented equally in the Senate and in proportion to their populations in the House. Without that compromise, there would likely have been no Constitution, no Senate, and no United States as we know it today.

A second major beginning date is September 30. On that day in 1788, the Pennsylvania legislature elected the nation's first two U.S. senators—Robert Morris and William Maclay. The election of Maclay proved particularly important because he was the only member of the First Senate to keep a diary at a time when all Senate sessions were held behind closed doors.

April 6 ranks near the top of any list of Senate anniversaries. On April 6, 1789, the Senate mustered its first quorum—five weeks late. The Senate's first order of business was to meet jointly with the House to count the electoral ballots that formally gave George Washington his presidential victory.

Finally, there is September 17. On September 17, 1787, thirty-nine of the convention's fifty-five delegates signed the United States Constitution at Independence Hall in Philadelphia. Of those thirty-nine, sixteen went on to become U.S. senators.

In selecting an appropriate visual symbol of the Senate in its founding period, one might consider an anchor, a fence, or a saucer. Writing to Thomas Jefferson, who had been out of the country during the Constitutional Convention, James Madison explained that the Constitution's framers considered the Senate to be the great "anchor" of the government. To the framers themselves, Madison explained that the Senate would be a "necessary fence" against the "fickleness and passion" that tended to influence the attitudes of the general public and members of the House of Representatives. George Washington is said to have told Jefferson that the framers had created the Senate to "cool" House legislation just as a saucer was used to cool hot tea.

Perhaps Pennsylvania's James Wilson, a convention delegate, should have the last word on this anniversary. In the fall of 1787 he told the citizens of Philadelphia that he was amazed that the Senate had been created at all. "For my part, my admiration can only be equaled by my astonishment in beholding so perfect a system formed from such heterogeneous materials."

Reference Items:

Baker, Richard A. The Senate of the United States: A Bicentennial History. Malabar, FL.: Krieger Publishers, 1988.

# posted by

Charles : 1:03 PM

Sorry, I meant to edit that along with a reference to this site: http://en.wikipedia.org/wiki/Filibuster#History

Please proceed forward with the discussion about how terrible the U.S. Senate is.

# posted by

Charles : 1:05 PM

The other "great compromise" that brought about the Constitution was that over slavery. I see no more reason to celebrate the compromise that created the American Senate than that which entrenched slavery. One can defend them as "necessary compromises" at the time in order to achieve a Constitution in the first place, but that's entirely different from valorizing them into the future as examples of statesmanship. Madison properly hated the compromise that created the Senate, but acquiesced in it as preferable to no Constitution at all.

I presume that Charles would force GM to continue building all of its product lines because that's what Sloan wanted, and it really doesn't matter that that's now dysfunctional. I literally cannot believe that rational people take originalism seriously as a theory of normative political analysis (as against a theory of constitutional interpretation, even though I disagree with it). Quoting James Wilson is an act of filiopiety. He has literally nothing to tell us about the operation of the Senate in 2009. We should learn to think for ourselves (as Wilson and his compatriots did). Alas, I despair that we are capable of it, precisely because of the cult of the founders.

# posted by

Sandy Levinson : 2:26 PM

Sandy:

You dispair that we "are" (or aren't) capable of thinking for ourselves? I take it you also think that George Washington's comment (the only one I intended to quote) is out-dated? If the filibuster were preventing some tragic result you dreaded, you would still want to do away with it?

# posted by

Charles : 2:40 PM

Sandy, could you please clarify this statement in your comment?

"I literally cannot believe that rational people take originalism seriously as a theory of normative political analysis (as against a theory of constitutional interpretation, even though I disagree with it)."

I take this to mean that you disagree with originalism in constitutional interpretation but accept that rational people can take originalism for such purpose seriously. However, you do not seem to believe that in the political spectrum rational people can take originalism seriously. I can agree with this. But is this what you meant?

Regarding originalism in constitutional interpretation, at other recent posts I commented very favorably on two recent articles by Jamal Greene: "Selling Originalism" and "On the Origins of Originalism." Greene is a new voice, especially post-Heller, on originalism. I am quite impressed with his take and wonder if you and other posters have taken note. I have been anxiously awaiting post-Heller posts on originalism here on this Blog.

# posted by

Shag from Brookline : 2:57 PM

Sandy:

Given the near even split in ideology in this country, I suggest that no substantive proposal to change our governing system has an ice cube's chance in hell of being ratified by a supermajority of the states.

You would have a far better, but not great, chance amending the rules of the Senate. The Dems have the time and are currently considering their own "nuclear option" to remove the filibuster obstacle to their plans. However, what goes around comes around. The veteran Dmes there know that the GOP will retake the majority in the future and the Dems will have stripped themselves of the filibuster shield.

# posted by

Bart DePalma : 3:10 PM

Charles, I can understand defending the filibuster and holds, but seriously, can't you see that it's just dumb to appoint some really old, probably senile and possibly corrupt, Senator to be third in line for the Presidency? This isn't a partisan point. Do you really think that if something horrible happened to the President and Vice President, and the Speaker of the House, that the person we would want taking over the country in such a crisis situation is Robert Byrd? Or that it was Strom Thurmond when he was pushing 100?

It seems to me that if the President Pro Tem is going to be in the line of succession, we simply HAVE to have someone in that role who would make a credible President in an absolute emergency. Note this doesn't mean a President that I would like (or you would like) or would agree with ideologically. Just someone who would be competent, up to the job, and able to reassure the American public in what would be a very difficult time. Don't you see how Robert Byrd / Strom Thurmond / Ted Stevens wouldn't be that person?

# posted by

Dilan : 3:12 PM

Dilan:

I don't see how Ted Stevens wouldn't be that person (as I already stated: "He's certainly more experienced than our current occupant").

# posted by

Charles : 3:16 PM

OK, Charles, how about Strom Thurmond at age 98?

# posted by

Dilan : 3:19 PM

Bart DePalma:

Perhaps this is the good Professor's idea of an April Fools' Day joke?

# posted by

Charles : 3:20 PM

Professor Levinson,

I’ve read warnings that a new Constitutional Convention would be opening a really nasty can of worms.

Would the Bill of Rights make it through a Constitution Convention today? There would surely be efforts by some to incorporate the “Defense of Marriage" Act into a new constitution.

Considering the compromises that were necessary to create our current Constitution, would we really be any better off? The two major parties are so bitterly split on issues now, what kind of compromises would even be possible?

Note to Charles: Ted Stevens was not acquitted; Holder simply recognized that the case had been irreparably damaged by prosecutorial misconduct by the Bush Justice Department and threw in the towel. Like Oliver North, Stevens is just another criminal who got off on a legal technicality.

# posted by

Hank Gillette : 3:24 PM

Dilan:

Your hypothetical is that some unspeakable catastrophe has taken out the President, Vice-President, and Speaker of the House -- probably even more to be realistic -- all at the same time. No one short of Jack Ryan himself would be a perfect replacement. Thurmond (or, as it currently exists, Byrd) would have to do. The new President at least gets to keep some senior advisors, right?

# posted by

Charles : 3:24 PM

The other "great compromise" that brought about the Constitution was that over slavery. I see no more reason to celebrate the compromise that created the American Senate than that which entrenched slavery.

I think it's worse than this. While the evidence is not crystal clear, it seems pretty obvious that the two compromises -- Senate and slavery -- were connected. In essence, the smaller Northern states wanted over-representation in the Senate and used concessions to slavery to induce SC, NC, and GA to go along.

Quoting James Wilson is an act of filiopiety. He has literally nothing to tell us about the operation of the Senate in 2009.

I think this may be a stronger statement than you intend. Wilson was a very smart guy who had thought a lot about the problems of republican government. He's worth quoting to the extent he makes good arguments on the basis of that expertise. Just like everyone else.

Unless you mean James Q. Wilson, in which case I agree entirely.

# posted by

Mark Field : 3:25 PM

Charles:

No advisor would be more "senior" than Thurmond.

More seriously, if you don't see a problem with this, OK. I suspect a lot of people-- including many conservatives as well as liberals-- would.

I know it seems like a longshot, but to me, the fact that it would have to be an improbable series of events that would get us far down the line of succession underlines the importance of having plausible Presidents in that line, because if the unspeakable does happen, that's when you REALLY need good leadership.

And bear in mind, I am not saying any of this to rag on Strom Thurmond or other conservatives. Someone like John McCain or Lindsay Graham or Orrin Hatch, for instance, would have been a perfectly plausible person to fill this role during the years of Republican control of the Senate. But if the only real important role of the President Pro Tem is to fill in for the President in an absolute crisis situation, it seems to me that "someone competent and prepared to do that" is the relevant criterion for selection.

# posted by

Dilan : 3:29 PM

Hank Gillette:

Thank God then for "legal technicalities" (or half of us would be unemployed). And, I was not using "acquittal" in the legal sense of the word any more than you are using "criminal."

BTW: it won't be just be DOMA up for grabs in some free-for-all Art. V Convention. Think "birth certificate" for President and HUMAN LIFE AMENDMENT too.

# posted by

Charles : 3:29 PM

Dilan:

Of course there's a "problem" with all of this (your hypo is basically right out of Clancy's Executive Orders). The Republic would still survive.

# posted by

Charles : 3:33 PM

Plot summary

Jack Ryan is sworn in as President of the United States minutes after becoming Vice-President. With most of Congress, the Joint Chiefs of Staff of the U.S. military, much of the senior staff of the Executive Office of the President, the Supreme Court, and all but two members of the Cabinet dead in a terrorist attack, Ryan is left to represent the United States virtually all by himself. This novel follows Ryan as he deals with various hardships and crises, ranging from domestic and foreign policy, to reconstituting the House and Senate, a challenge to his legitimacy by his Vice-Presidential predecessor, scandal-tainted Ed Kealty, and a brewing war in the Middle East. As if that isn't enough, two anarchists decide to kill both Ryan and Ed Kealty just to finish off the job, using a cement truck filled with an explosive mixture.

When the President of Iraq (at the time of publication, the book referred to then-President Saddam Hussein although he is only mentioned once by name) is assassinated by an Iranian member of his own security detail, the leader of Iran (Ayatollah Mahmoud Haji Daryaei) takes advantage of the power vacuum and launches an unopposed invasion of Iraq, uniting the two countries into one called the United Islamic Republic.

With assistance from India and the People's Republic of China, the UIR plans to transform itself into a superpower by conquering Saudi Arabia. Following a series of Iranian-backed terrorist attacks designed to cripple the United States, including a kidnap attempt on Ryan's youngest daughter and a biowarfare attack using a new Iranian-developed airborne strain of the extremely lethal Ebola virus, the UIR goes to war against Saudi and Kuwaiti forces and the few uninfected American units are rushed to the region to stand by them. Ryan restricts interstate travel, and closes schools and businesses to reduce the virus spreading. The biowar attack fails for a reason well known to virologists: Ebola outbreaks quickly exterminate a small group of people, then burn out because they run out of new hosts; other viruses that kill less efficiently manage to spread to larger communities.

He also orders the country into martial law during this time, which inadvertently prevents the anarchists' assassination attempt because interstate travel has been prohibited. During a routine police check at a truck stop, one of the anarchists panics, drawing police attention to their unusual truck, and foiling that plot at least.

In a matter of days, with the combined strength of the Kuwaiti, Saudi Arabian and American armies, they begin to seriously damage the UIR's military resources, soldiers and morale by destroying two entire corps of the UIR's army. Eventually, the triumvirate of the three countries win the war.

At the same time, President Ryan calls Ding Chavez and John Clark into a secret mission. They set up a laser guidance device in an apartment facing Daryaei's home, allowing US aircraft to target a precision bomb upon it. Simultaneously, during a press conference, President Ryan shows the destruction of Daryaei's residence on live national television and tells the international community that they will only hurt those who are specifically responsible for attacking America. Ryan assassinates Darayei just after another attempt on Ryan's life, by an Iranian sleeper agent in the U.S. Secret Service, is foiled and the assassin arrested in the Oval Office.

Ryan also threatens to bomb biowarfare targets in Tehran unless the surviving people responsible for the biowarfare attacks are extradited to America to face charges. Afterwards, the American people accept their new President, and he decides that he will in fact run for election to a term in his own right.

The book is so named because President Ryan governs by issuing executive orders, as opposed to working with the Congress to pass legislation or deferring to state and local governments. This is because most of Congress, as well as the Supreme Court and most of the cabinet were killed in the same terrorist action which elevated Jack to the Presidency (see Dilan's hypo). In particular, acting on advice of his wife, a world-renowned physician, in regard to the biological weapon threat, Jack restricts interstate travel by executive order. In a move designed to embarrass and undermine Jack's presidency, resigned Vice-President Ed Kealty files a lawsuit alleging Jack acted unconstitutionally in restricting the travel of US citizens. While ruling in Kealty's favor on constitutional grounds, the lawsuit also ends Kealty's claim to the Presidency, since he inadvertently pleads Jack Ryan's legal capacity as President of the United States.

A fascinating read, but as I said THE REPUBLIC SURVIVES!

# posted by

Charles : 3:40 PM

Mark Field:

I've met James Q. Wilson, and I hope yours is a stronger statement than you intended as well.

# posted by

Charles : 3:49 PM

Hank Gillette:

Note to Charles: Ted Stevens was not acquitted; Holder simply recognized that the case had been irreparably damaged by prosecutorial misconduct by the Bush Justice Department and threw in the towel. Like Oliver North, Stevens is just another criminal who got off on a legal technicality.

One of the "last straws" was apparently the discovery of prosecution notes that showed one of the chief prosecutions witnesses as contradicting himself.

On retrial, perhaps that (if brought out in court) might have swayed a jury from a unanimous guilty verdict.

That's not to say that a preponderance of the evidence could reasonably be seen to point to guilt ... and as long as we don't have jurors, we can decide ourselves on the weight of the evidence. He will not be convicted in any new trial and the prior guilty verdict was tossed, so, factualy guilty or not (as you decide, with whatever burden of proof you choose), he won't be legally judged a criminal.

Cheers,

# posted by

Arne Langsetmo : 3:58 PM

Charles:

I have tremendous respect for Tom Clancy (in particular, the way he is able to approach realism with respect to some pretty covert aspects of the government), but real life isn't a Tom Clancy novel. And in real life, any scenario catastrophic enough to put the President Pro Tem of the Senate into the Oval Office is going to require strong and effective leadership. Picking the oldest member of the majority party in the Senate seems like a terrible criteria for that job.

# posted by

Dilan : 4:01 PM

Dilan:

So does picking a lowly Secretary of Education (no offense to Arne Duncan per se. If it happens, though, we will survive.

# posted by

Charles : 4:04 PM

After 9/11, the Continuity of Government Commission, a private non-partisan think tank, suggested that the current law on Presidential Succession has "at least [SIX] significant issues … that warrant attention," in addition to the one you are so concerned about:

1) The reality that ALL figures in the current line of succession work and reside in the vicinity of Washington, D.C. In the event of a nuclear, chemical, or biological attack, it is possible that EVERYONE on the list would be killed or incapacitated.

2) Doubt (such as those expressed by James Madison and legal scholars since) that Congressional leaders are even eligible to act as President.

3) A concern that the current line of succession can force the presidency to abruptly switch parties mid-term, as the Speaker and the President pro tempore are not necessarily of the same party as the President (e.g. Bush43).

4) A concern that the succession line is ordered by the dates of creation of the various executive departments, without regard to the skills or capacities of the persons serving as their Secretary.

5) The fact that, should a Cabinet member begin to act as President, the law allows the House to elect a new Speaker (or the Senate, a new President pro tempore), who could in effect remove the Cabinet member and assume the office him- or herself at any time causing even more uncertainty and havoc.

6) The absence of a provision where a President is disabled and the Vice-Presidency is vacant (for example, if an assassination attempt simultaneously wounded the President and killed the Vice President).

# posted by

Charles : 4:15 PM

I mean, think about it: HILLARY CLINTON is currently fourth in line!

# posted by

Charles : 4:19 PM

Charles:

No doubt those are all concerns. But why belittle the concern that we have been discussing?

I know it's kind of speculative and a bit creepy, but Presidential succession is actually serious business. And it also happens to be the kind of thing that liberals and conservatives ought to be able to work together on, because we could generate neutral rules that don't inordinately benefit one party or the other and which represent a good solution to the problems you list.

# posted by

Dilan : 4:21 PM

Dilan:

Well, first of all, it is April Fools' Day. Second, you and I are certainly not going to solve these issues here at Balkinization when we can't even get comments turned back on. I thought we were just shootin' the hay?

# posted by

Charles : 4:25 PM

Charles:

You got me.

# posted by

Dilan : 4:52 PM

Well, Dilan, I wasn't completely pulling your leg. I honestly believe that the Republic would have survived a President Stevens, Byrd or even Thurmond.

# posted by

Charles : 5:09 PM

As former Sen. Trent Lott pointed out about his own home State of Mississippi: "When Strom Thurmond ran for president, we voted for him. We're proud of it. And if the rest of the country had followed our lead, we wouldn't have had all these problems over all these years."

# posted by

Charles : 5:17 PM

Now you are really pulling my leg, Charles.

As a great American orator once said, "fool me once, shame on you, fool me twice, well... you can't get fooled again".

# posted by

Dilan : 5:24 PM

Come on, you don't think America is strong enough to survive a poor President (even that "great American orator")?! Even you have to admit that we WOULDN'T have had all these problems over all these years if Thurmond had been elected in '48. Maybe a bunch of other problems, but not these same ones we are having today.

# posted by

Charles : 5:27 PM

The current line of succession is skewered. To underline that politics isn't a modern day problem alone, there is evidence that the original law on the matter was written in such a way by a Federalist Congress to avoid Secretary of State Jefferson being third in line. The senate pro tempore should be a symbolic honor, not in line of succession. In fact, it is of dubious constitutionality given the reference to 'officers.'

The famous alleged Jefferson/Washington discussion spoke of the role of the Senate. The two senator rule, a measure in part a pro-slavery measure (but NOT the only reason: the Virginia Plan set forth a proportional representative plan, while the 'New Jersey Plan' supported equality in the states ala the Articles of Confederation*), is but an aspect of the Senate as a whole.

The function of the Senate, as a small more elite (in some sense of the word) sort of body of more deliberative nature, was not only some sop to the slave interests. This is seen by the fact a bicameral legislature was a regular body in free states.

BTW, a commission led by right leaning centrists mixed with the likes of James Baker, would seem to me to leave something to be desired. Some two year constitutional convention is a neat trick too.

---

* Rhode Island didn't show up and New York did not really sign the Constitution (Hamilton was in the minority). As with reasons behind the Electoral College, it is therefore of limited value to focus on the slave/free divide alone as the deciding factor behind the compromises in the document.

# posted by

Joe : 6:34 PM

Sandy,

Maybe I should post about this more fully, but there are precedents where the House forced changes in Senate practice by refusing to appropriate funds under its "origination" privilege for projects of interest to the Senate. The regulation of Native American tribes after the Civil War is one example (where this went from an exclusive Senate prerogative to a joint one).

Gerard Magliocca

# posted by

Gerard N. Magliocca : 10:32 AM

I want a two-year-long constitutional convention

Why does Sandy hate the Bill of Rights?

(For extra credit, why is it obvious without peradventure that today's electorate (democratically leavened via univeral suffrage) is manifestly less hospitable to the protection of minority rights from majoritarian tyranny than was our genteel 18th century version?)

# posted by

jollyroger : 3:49 PM

The direct reason that Senate rules are less majoritarian than House rules is that the Senate is in continuous session, so it may only amend the rules with a two-thirds majority, while the House re-enacts its rules by majority vote every two years.

The Senate has only rarely had more than two-thirds control by one party, the the minority party has always valued the minority party rights afforded by senate rules and thus opposed efforts to modify them for the most part.

The counter-majoritarian elements of the senate rules, like holds, the filibuster and senatorial privilege in appointments are so long standing that they have taken on the character of being part of our constitution in the British sense, even though they are not part of it in the sense of being amendments to the constitution document.

The flip side of these counter-majoritarian rules is that there are traditions in place that assure the passage of many initiatives necessary for the government to function, like budgets and a core of executive branch appointments, notwithstanding objections to these measures by some members.

# posted by

Andrew Oh-Willeke : 6:08 PM

Charles, I can understand defending the filibuster and holds, but seriously, can't you see that it's just dumb to appoint some really old, probably senile and possibly corrupt, Senator to be third in line for the Presidency? This isn't a partisan point. Do you really think that if something horrible happened to the President and Vice President, and the Speaker of the House, that the person we would want taking over the country in such a crisis situation is Robert Byrd? Or that it was Strom Thurmond when he was pushing 100?

I agree with your non-partisan argument. But the real problem here stems from the fact that the Senate simply doesn't think that it is appointing someone to be president. The fact that the PPT happens to be in the line of succession -- setting aside the real constitutional issues that this raises -- is entirely incidental to their choice, which they're making for purely honorary reasons

# posted by

David Nieporent : 3:15 AM

Sandy did not respond to my earlier comment regarding either clarification or originalism. Perhaps he had no quarrel with my understanding of his comment that I quoted. As to post-Heller originalism, here's an article by Prof. Daniel O. Conkle titled "Judicial Activism and Fourteenth Amendment Privacy Claims: The Allure of Originalism and the Unappreciated Promise of Constrained Nonoriginalism" available via:

http://ssrn.com/abstract=1371080

that is relatively short at 15 pages. Reference is made to Heller in a limited manner. Also referenced is made to JB's "conversion" to a form of originalism.

I continue to await post-Heller posts on originalism here at this Blog.

# posted by

Shag from Brookline : 10:51 AM

Thanks, Joannah. This thread is about reforming the Senate because Democrats don't think they can get what they want fast enough (same thing with District of Columbia voting rights when it is not a STATE). I like things just they way they are (I also want Coleman to be seated rather than Franken). Let me know if you want to discuss.

# posted by

Charles : 1:42 PM