Balkinization: Matt Yglesias (and The Atlantic) on constitutional reform

Matt Yglesias (and The Atlantic) on constitutional reform

Sandy Levinson

The July issue of The Atlantic (not hyperlinkable yet) includes an "ideas" section in which Matt Yglesias calls upon us, altogether sensibly to "end the vice presidency." He says that "the office is at best worthless and at worst a threat to the republic." I doubt that the first is true; on occasion, we've probably received a net positive contribution from particular vice presidents (I suspect that Al Gore is most obviously in that category among modern VPs). Still, Yglesias's argument, even if a bit hyperbolic, is correct. His suggested solution with regard to having a designated successor is basically to return to the old Succession in Office Act, by which the Secretary of State would succeed in case of vacancy. My own preference is that the position be filled after the election by presidential nomination and congressional confirmation (a la the 25th Amendment), with the key caveat that the VP would hold office subject to being dismissed either by the President or by Congress (upon a 2/3 vote) if either comes to the conclusion, for whatever reason, that he/she isn't really the person they have sufficient trust to wish to succeed to the Oval Office. (This would indirectly solve the problem of a debilitated VP, who, astonishingly enough, becomes subject to the structure established by the 25th Amendmentn only upon succession to the presidency.)

Incidentally, the successorship issue is part of the current follies in New York State, where the almost certainly corrupt Democratic turncoat, currently under multiple investigations, will, as President of the Senate, the office he was promised by Republicans in order to seize control of that body, become governor should David Patterson even take a trip to New Jersey or Connecticut. The Times suggested that one possibility as "governor for the day" is that Espada might even use his new gubernatorial power to issue himself an advance pardon for his depradations and, while he is at it, perhaps issue a similar pardon to his fellow turncoat Sen. Monseratte, currently under (state) indictment for allegedly slashing his girlfriend with a broken glass. Just to underscore, though, in remarkable complexity of politics, Sen. Espada is also one of the principal backers of gay- and lesbian-marriage in New York, and if the rebellion sticks, it may well bring about the welcome result, the joining of New York with the New England states, save Rhode Island, is legalizing such marriagges. Ironically or not, the former Democratic "leader" of the Senate, Malcolm Smith, seemed resolutely averse to bringing the bill up for a vote. It is sometimes very difficult to figure out which team to root for!

In any event, Mr. Yglesias should be contratulated for raising the possiblity of constitutional reform. And, incidentally, this is on top of Garrett Epps' excellent article in the February issue of The Atlantic describing as one of the "founders' mistakes" the office of the presidency itself. So perhaps The Atlantic is, slowly but surely, moving to connect a bunch of dots....

Posted 2:34 PM by Sandy Levinson [link]

Comments:

My own preference is that the position be filled after the election by presidential nomination and congressional confirmation (a la the 25th Amendment)...

Why is congressional confirmation superior to election by the People?

The Epps article is reactionary in the extreme without much thought of how his suggested changes would actually work.

1) The Gore reaction. Elimination of the electoral college in favor of direct election would not change the actual results apart from two past elections. However, it would enable a candidate with an electoral base in urban areas to ignore the interests of the rest of the country.

2) The "I can't wait until the One takes office" reaction. There is no mechanism under our system for a shadow cabinet to take power one week after a Presidential election because we elect individuals and not parties as they do in a parliamentary system. No candidate is going to take weeks off during a campaign to choose the dozens political appointees necessary to run the federal behemoth. Likewise, Congress will not be ready to confirm the cabinet one week after an election. In reality, the incoming administration would be using the cabinet of the outgoing administration for weeks. or the government would grind to a halt.

4) The 2006 Dem takeover of Congress reaction. The People's decision to throw the bums out in Congress hardly means that they also want to change the Executive. After 2004 Gingrich takeover of Congress, Mr. Clinton remained quite popular and comfortably won his re-election. The suggestion that, after the GOP retakes Congress in 2010, Mr. Obama must clean out his cabinet and have a new one approved by the new GOP Congress is a prescription for months long paralysis. Can you imagine trying to get a conservative GOP and a socialist President to agree on the folks who would be in charge of the recently nationalized sectors of our economy?

Be very careful what you wish for.

The more of these suggested constitutional changes I read, the more my admiration for the Founders and their work increases.

# posted by

Bart DePalma : 4:28 PM

1) The Gore reaction. Elimination of the electoral college in favor of direct election would not change the actual results apart from two past elections. However, it would enable a candidate with an electoral base in urban areas to ignore the interests of the rest of the country.

Huh? When the election is direct, the only concern is how to get the most people to vote for you. If it is by electoral college, the only concern is how to get the most electoral college electors to vote for you ... which has a different skew to it, but nonetheless influences political choices and tactics (see, e.g., today's Republican party), including whether to ignore a certain demographic (because the results are preordained, for instance, such as Republicans not campaigning in big blue states).

Perhaps Bart thinks that city slickers' votes shouldn't count as much ... oh, waiddaminnit, that's already generally true; large states get proportionately less representation in the electoral college than do smaller states that tend to have fewer big cities.

If all votes counted the same, any prudent politician would need to look at the possibilities in every voter demographic.

Cheers,

# posted by

Arne Langsetmo : 5:21 PM

As to the pardon stuff, nice hypos there, but the chance of that actually happening is about nil.

Juan Gonzalez, of Democracy Now!, had a good column today about the progressive chops of Sen. Monseratte, who now appears to be wavering.

One good result of this affair, likely to occur other places with the margin of victory so small (it actually might have in another state, but apparently someone sent a blackberry message or something, and the plans were ruined), is that the weak Dem. leader Malcolm Smith is likely on the way out.

As to him not bringing up the same sex marriage issue to a vote, my understanding is that he was not going to do it if there was not votes for it to pass, a big question mark.

Another op-ed in the NY Daily News today called for a fix of the lieutenant governor vacancy. I doubt the vice presidency of the U.S. is dangerous or that an unelected second in command is necessarily a better fit. OTOH, the situation in this state is a problem.

[I recall a few years back, Gov. Pataki had problems with a too independent woman lieutenant governor who wasn't quite ready for prime time. I can imagine what would have happened if she suddenly became governor.]

# posted by

Joe : 6:02 PM

Joe might be right that the chances are "about nil," but surely we should have learned in the past five years, between Katrina and the financial meltdown, is that very low-probability events in fact sometimes in fact occur.

The quick answer to Mr. DePalma's first question is that in no serious non-formal sense do "the People" choose the Vice President. It may be the case that in the past election more people chose to vote for Obama or McCain because of attraction or repulsion to Gov. Palin, but in the normal election, VP choices have never explained more than 2$ of the vote, as I'm sure was the case in both 2000 and 2004. Our present system is simply an aspect of the further "monarchization" of the presidency, where we allow the nominees by fiat to foist a potential president upon us. It is the classic example of an adhesion contract, and it is no more attractive than are most standard examples of such "take-it-or-leave-it" complex contracts (including, for that matter, the Constitution, which was ratified only because it was presented to the State Conventions as an adhesion contract, including the "compromises" with the slavocracy).

# posted by

Sandy Levinson : 6:43 PM

This comment has been removed by the author.

# posted by

John : 7:12 PM

Elimination of the electoral college in favor of direct election would not change the actual results apart from two past elections. However, it would enable a candidate with an electoral base in urban areas to ignore the interests of the rest of the country.

As opposed to the electoral college, where recent presidential candidates have had to pay close attention to the interests of people in California, New York, and Texas?

[Removed the original post because I forgot to quote DePalma]

# posted by

John : 7:13 PM

Sandy:

I am uncertain what concern you seek to address by shifting VP from an elected office to an appointed post.

My concern is that I jealously guard my right to vote for my representatives, even relatively useless contingency offices like VP.

If even only 2% of voters make cast their ballots on the basis of the VP, that is still 2% more than under your plan.

If you seek a constitution that enhances democracy, perhaps, we should have vice presidential candidates run separately from presidential candidates and allow voters to elect the two best people. Of course, that could have resulted in the election of Obama and Palin this last time around.

Maybe, it would be better just to stick with the present system after all.

# posted by

Bart DePalma : 7:29 PM

Arne:

I do not see how the electoral college disenfranchises city folks such as yourself. Because big urban markets are the most cost effective places to campaign, no candidate is going to ignore you. However, I do prefer a system that requires national candidates who allegedly represent all of the People to be compelled to broaden their base as far as possible beyond large cities.

John:

California, Texas and New York are base states whose voters share most of the views of their candidates. My concern is to compel candidates to address the concerns outside of their base.

# posted by

Bart DePalma : 7:38 PM

Bart:

perhaps, we should have vice presidential candidates run separately from presidential candidates and allow voters to elect the two best people. Of course, that could have resulted in the election of Obama and Palin this last time around....

Thanks for the laugh. I need that on a Friday evening after a week of shelling out C-notes like confetti and repairing a recalcitrant marine head.

Really. You're teh funneeee...

Cheers,

# posted by

Arne Langsetmo : 10:58 PM

Bart:

I do not see how the electoral college disenfranchises city folks such as yourself. Because big urban markets are the most cost effective places to campaign, no candidate is going to ignore you. However, I do prefer a system that requires national candidates who allegedly represent all of the People to be compelled to broaden their base as far as possible beyond large cities.

Bart, please stop showing that you're clueless. You had a post a while back "explaining" to me about how many generations it takes (three, you said) for immigrants to be 'assimilated' (well, maybe you're thinking in Borg terms; let me know if this is what you had in mind). Now you want to tell me that I am a "city folk[]" when we live in an unincorporated town of 4000 people.

Really.

Bart.

Stop shoveling the sh*te.

It's embarrassing.

For you.

Cheers,

# posted by

Arne Langsetmo : 11:04 PM

"Just to underscore, though, in remarkable complexity of politics, Sen. Espada is also one of the principal backers of gay- and lesbian-marriage in New York, and if the rebellion sticks, it may well bring about the welcome result, the joining of New York with the New England states, save Rhode Island, is legalizing such marriagges."

Yes, it sure is remarkably complex and baffling that such a corrupt man could support the great and noble cause of gay marriagges. As far as the substance of your post, are you for Cabinet members being dismissed by 2/3 votes, or just Vice Presidents? And what do we gain from this system? I strongly doubt that, in the first instance at least, Congress would really shoot down the President's choice for his successor, and I'm not even sure whether, if given the opportunity, Pelosi's Congress would have thrown out Cheney by a 2/3 vote. Indeed, it seems unlikely that any Congress would toss a Vice President if that was the required margin. 2/3 majorities in Congress are extremely rare, and I don't think there are many members of Congress who would vote out their own party's Vice President, unless he was guilty of impeachable offenses, or quite senile. But that's what impeachment's for.

# posted by

Asher : 11:59 AM

"between Katrina and the financial meltdown"

Incompetency and inaction while benefiting the PTB as business as usual is not really comparable to the pardon scenarios raised, are they?

# posted by

Joe : 1:12 PM

"Elimination of the electoral college in favor of direct election would not change the actual results apart from two past elections."

Ok, maybe I'm parsing that wrong, but I'm under the impression that the two past elections involved the guy with the most popular votes winning, so, what's that "apart from" doing there?

# posted by

Brett : 1:13 PM