Balkinization: How the Constitution affected the current race

How the Constitution affected the current race

Sandy Levinson

One should not ignore the extent to which our Constitution has structured, and not necessarily for the better, the current race. Consider only the indefensible bar of naturalized citizens from becoming President. Were it not for that, there can be no doubt whatsoever that Arnold Schwartzenegger would currently be a powerful force in the race, most likely, I suspect, as an independent candidate threatening to destroy the two-party duopoly. He might also have chosen to run as a Republican, though I suspect he would have accurately realized that the Sarah Palin-right would never accept anyone so progressive as he. Instead, he could have amassed sufficient funds to mount a serious national candidacy, with a similarly disgruntled Republican or Democrat (Michael Bloomberg?) as his running mate. Among other things, we would have heard none of the pernicious nonsense about how America's greatness is found only in small-town America and that urban America can simply be ignored.

Similarly, though less certainly, Jennifer Granholm might have been chosen by Barack Obama as his running mate, since she is the experienced governor of a battleground state whose collective ego needs some salving after the Michigan primary fiasco. To be sure, she's had a mixed record as governor. Unlike Palin, though, who has been able to take advantage of the run-up in oil prices to avoid making any tough budgetary decisions that aren't simply ideologically based (like cutting funding for an organization that works with teen-age mothers!), Granholm has had to make genuinely tough choices in a declining economy. But our defective Constitution has guaranteed that she, like Arnold, is off-limits to the American electorate.

There are, of course, other "constitutional dimensions" to this year's race, including the fact that Bill Clinton is ineligible to run for what might his fifth term in office. I take it that no one, including the most devoted conservatives who follow Balkinization, laments that George W. Bush is ineligible to run for a third term. As it happens, I have come basically to agree with the impulse behind the two-term limitation, though I would allow Congress, by a two-thirds vote (in order to guarantee bi-partisanship) to suspend the Amendment if, for example, we are at war and are blessed with a President of unusual diplomatic ability and military acumen (it could happen!). This might also require a similar willingness to deviate from our fixed-election timetable, so that suspending the Amendment wouldn't necessarily mean that the third-term president was guaranteed a full four years. If, for example, the war precipitating the suspension was over within a year, one could have a "regular" presidential election at the time of the next congressional elections (with the winner serving a full four years).

And, of course, the electoral college is also working its indefensible mischief, but enough has been said about that already in earlier postings.

Posted 4:41 PM by Sandy Levinson [link]

Comments:

You are really reaching here.

Arnold has never shown any interest in third parties so far as I am aware (I live in CA and am a big supporter). Moreover, third parties have never done very well in national elections, even where you had a well-known incumbent like TR, George Wallace, or Ross Perot. It's possible that if Arnold had run as a third party candidate, he could have siphoned votes from one side or the other, but enough to win? And if he had run as a third party candidate and won, he would have had no party to fall back on for support in the Congress. So it's unclear whether or not Congress would have continued to be polarized between two parties that had no investment in whether he succeeded. If Arnold were eligible for the presidency, he may have been chosen as a GOP VP candidate. But probably only by a conservative nominee, since picking him to run with McCain, Giuliani or another GOP moderate would have completely turned off the religious right. He is probably too moderate to have been successful as a top-line nominee for president, just as Rudy was.

If Granholm had been able to run, she would have doomed the Democratic ticket like almost no other potential running mate for Obama. Her tenure has been a disaster and she would not have been reelected to a second term as governor except that she had the good fortune to run against a hapless opponent. She has no inherent charisma, no real accomplishments and is not very bright. She would have difficulty carrying her own state. Picking her would have enraged Clinton supporters, just as picking Napolitano or Sebillius would have done (and both of the latter have many more accomplishments to their name than Granholm).

BTW, neither McCain or Palin ever claimed that America's greatness is found only in small-town America or that urban America "can be ignored". But it is your blog, so you should feel free to set up as many straw men as you want if you think it helps you make your case.

# posted by

Zachary : 5:23 PM

Zachary may be right about Granholm. As to Arnold, we'll obviously never know what he would have been willing to do had he been eligible to run. There has been no need to "show interest in a third party" in California since he could take advantage of the strange recall provision to escape the necessity of running in the Republican primary at the time. I think it's indisputable that Arnold would like to be President and that he might well figure out that the only way for that to happen, even if as a long shot, is as a third-party candidate. It worked for Jesse Venture in Minnesota; it could work for the infinitely better known and more capable Arnold. But, again, we'll never know....

# posted by

Sandy Levinson : 5:56 PM

Didn't know Granholm was foreign-born. Anyway, there's no way in the world that Obama would ever have chosen a Governor with a 37% approval rating. Experience or no experience, that would be even more disastrous than the Palin pick. All you'd hear is how much Michiganders hate her. Another way to look at this is that there's no way he would've taken her over Sebelius. So no, I don't think the Constitution affected the composition of the Democratic ticket.

# posted by

Asher : 6:19 PM

Sandy:

I would allow Congress, by a two-thirds vote (in order to guarantee bi-partisanship) to suspend the Amendment if, for example, we are at war and are blessed with a President of unusual diplomatic ability and military acumen (it could happen!).

This is a very interesting idea. However, why limit the waiver to war? Perhaps we have an outstanding President who has kept us in peace and prosperity.

Consider only the indefensible bar of naturalized citizens from becoming President.

Why is this indefensible? Are we that lacking in American leadership that we need to import our Presidents? However, I can see modifying this restriction to allow naturalized citizens to run.

BTW, are you willing to offer an idea to correct the "problem" of selecting inexperienced Presidents and VPs?

# posted by

Bart DePalma : 6:25 PM

zachary, I agree that Granholm lacks charisma or any significant accomplishments during her tenure as governor (which an essentially obstructionist Republican state legislature must share credit for), however it's probably a reach to call the Berkeley and Harvard educated Granholm "not very bright." Unless the new standard includes field dressing game animals.

# posted by

Mr.Poindexter : 7:15 PM

To make every vote in every state politically relevant and equal in presidential elections, despite the Electoral College, support the National Popular Vote bill.

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC). The bill would take effect only when enacted by states possessing a majority of the electoral votes (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

The National Popular Vote bill has been approved by 21 legislative chambers (one house in CO, AR, ME, NC, and WA, and two houses in MD, IL, HI, CA, MA, NJ, RI, and VT). It has been enacted into law in Hawaii, Illinois, New Jersey, and Maryland. These states have 50 (19%) of the 270 electoral votes needed to bring this legislation into effect.

see http://www.NationalPopularVote.com

# posted by

mvymvy : 7:40 PM

I think it's indisputable that Arnold would like to be President

Sorry, this reminded me of Demolition Man, when Stallone's character saw the Schwartzenegger Presidential Library, and was given the explanation that he was so popular, that the Constitution was changed so he could run.

# posted by

Fraud Guy : 10:02 PM

With regard to Bart's question: I do have serious reservations about the way we select our presidents (independent of the electoral college). I'm a strong supporter of Barack Obama, but I confess that I would be even stronger in my support (and no merely my opposition to John McCain) if he had some other relevant experiences in government, such a managing a complex federal bureaucracy or, indeed, being an experiened governor.

My real objection to Sarah Palin, beyond my disagreement with her politics, is that there is no evidence that she is broadly educated and has really thought about the problems that confront us as a nation (as distinguished from that very small subset of problems that are really important to Alaskans). I am truly dismayed by those who laud her lack of education and her provincialism. One hates to say anything good about Richard Nixon, but one of the impressive things about him following his loss to Kennedy in 1960 is how much time and effort he put into trying to learn about the world and foreign affairs. Had he not had serious personality defects, he had the capacity to be a first-rate president. I just don't see the intellectual curiosity in Palin, and I fear that she is self-righteously dogmatic in her views.

What is best about a parliamentary system is that a) prime ministers usually have displayed their talents in other positions before reaching the highest rung; and b) that prime ministers can be fired if they are viewed as seriously problematic. What I don't like about a parliamentary system is that the entire cabinet has to come from parliament. When I was in Australia, somebody said that a strength of our system is that the president can choose cabinet officials who have had important careers outside of government, such as Edward Levi, say, the best Attorney General in modern times.

One of the reasons I want a new constitutional convention is precisely to have a national conversation about the possibility of combinig the best of parliamentarianism with the best of presidentialism.

# posted by

Sandy Levinson : 10:22 PM

Of course, you may very well be right about Palin, but I would point out that if she were intellectually curious, we wouldn't necessarily know about it. Curiosity doesn't leave a paper trail. We don't know what she reads, what she studied in school, whether she spends much time speaking to policy intellectuals - admittedly, she doesn't look like an intellectually curious person, but maybe that's just stereotype.

# posted by

Asher : 12:41 AM

Not all parliamentary systems require the entire cabinet to come from Parliament. In 2000 the Premier of British Columbia, Ujjal Dosanjh, appointed Edward John Minister for Children and Families in spite of the fact that John was not a member of the Legislative Assembly. In such cases the appointee is expected to run in the next election. I'm not sure whether there is a legal requirement to do so or whether it is merely custom.

# posted by

Bill : 3:41 AM

I just checked and although members of the federal cabinet in Canada are usually members of Parliament, they need not be.

# posted by

Bill : 3:52 AM

Sandy,

I'm curious, what accounts for your conversion to the two-term limitation? I take it we can agree that if George W. Bush were on the ballot this year, the Democrats would win in a landslide. At the same time, it would be difficult for the Republicans to nominate someone else because Bush remains highly popular on the right-wing of the party.

I would have expected that, as a partisan Democrat, you would have been hoping for Bush to run. Or Cheney.

# posted by

tjchiang : 4:06 AM

Tray:

Curiosity doesn't leave a paper trail.

Actually, I think you're generally wrong about that. It is incuriosity that would leave no "paper trail".

We don't know what she reads, what she studied in school,...

Obviously not American history or civics, much less Constitutional law. Yet she claimed a minor in political science....

Cheers,

# posted by

Arne Langsetmo : 7:09 AM

"I would allow Congress, by a two-thirds vote (in order to guarantee bi-partisanship) to suspend the Amendment if, for example, we are at war and are blessed with a President of unusual diplomatic ability and military acumen (it could happen!)."

No, no, no! Far better to let anyone run again than to make a special provision for a supposedly indispensible man. Way, way too Chavez-Putin-y for me.

# posted by

Chris : 8:10 AM

My support for the 22nd Amendment is based on my belief that any President has too much ability to manipulate public opinion and to manufacture crises that will benefit re-electio prospects. We are not helped by the fact that the President is head of state as well as head of government. I'm not a convert to the benefits of constitutional monarchy, but there is an advantage to displacing all of the pomp onto a figurehead and treating the head of government as a Ross Perot-type "employee" who can be unsentimentally fired when one loses confidence in him/her.

I agree with Chris that there is something unattractive about the possibility of a "cult of indispensability," but I also believe that it would have been, say, a huge mistake to remove FDR in 1944 for the inexperienced (re WWII) Tom Dewey. Full-scale war really does require us to rethink some of our assumptions about the "normal" operation of government.

# posted by

Sandy Levinson : 10:54 AM

"Full-scale war really does require us to rethink some of our assumptions about the 'normal' operation of government."

Rethink, maybe, but war-motivated structural changes like this really freak me out. What other assumption-rethinkings might be around the corner? Whatever we think of Lincoln's bending of some rules, I think that the mere fact that we had elections in 1862 and 1864 is a jewel of our constitutional history--cf. Churchill in WWII.

# posted by

Chris : 11:17 AM

Prof. Levinson:

"I would allow Congress, by a two-thirds vote (in order to guarantee bi-partisanship) to suspend the Amendment if, for example, we are at war and are blessed with a President of unusual diplomatic ability and military acumen (it could happen!)."

I agree with Chris here. I think that it would be highly dysfunctional to make such an exception for "emergency situations" ... it can only have the untoward effect of making people who think they are "indispensable" create those very "emergency situations" in order to hang on to power. What a horrible incentive....

Didn't Dubya's manufacture of wars teach us anything?!?!?

OTOH, I think there's much to be said for deviating from the fixed election time-table (or similar palliatives to get rid of the "endless campaign" which begets the need for -- and influence of -- big money). While up here in Canada this week, IC that PM Harper has called for "snap elections" October 14th. Such elections, constricted as they are, keep the advertising and campaigning possible down to a minimum (only five weeks to go, on your mark, get set....), and thus prevent the gawdawful endless campaigns that us down in the firts fifty states have to put up with....

And another BTW, the pulse up here in Canada is "Go Obama, get lost, McCain".... I think the view is >60% for Obama, in the teens for McCain.

Cheers,

# posted by

Arne Langsetmo : 11:33 AM

Arne, I'm surprised: You'd prefer that the Bush administration get to decide the precise timing of the election? Personally, I like the fact that elections happen on a fixed timetable, not whenever the people in charge find advantageous.

If you don't like the campaign, switch to a system where federal officers are chosen by lot from among state elected officials. The original random selection from a qualified pool model of democracy had a lot to say for itself.

# posted by

Brett : 12:42 PM

Brett:

Arne, I'm surprised: You'd prefer that the Bush administration get to decide the precise timing of the election? Personally, I like the fact that elections happen on a fixed timetable, not whenever the people in charge find advantageous.

It's not necessarily the option I'd choose (there are other ways to cut down on the campaigns), but it does have the virtues I suggested. And yes, it may be disadvantageous to specific people (or parties) in specific situations, but that's a knife that can cut both ways. Why should I necessarily get upset about that? ;-)

Cheers,

# posted by

Arne Langsetmo : 6:57 PM

Well, the problem is that it'd advantageous to the people who get to make the decision. And so the date of the election gets gamed.

I tend to think that as little of the process for replacing incumbent office holders as possible should be subject to their manipulation, so as to put incumbents and challengers on a somewhat equal footing. That's one of my problems with campaign 'reform'.

# posted by

Brett : 8:13 PM

Brett:

Well, the problem is that it'd advantageous to the people who get to make the decision. And so the date of the election gets gamed.

Keep in mind that the opposition can also call for a "no confidence" vote, and on success, the government falls and early elections are called too.

But my prior point (that such a scheme, unless gamed to be perpetually in favour of a certain specific party, if that is indeed one's aim ... my, what a Republican thought!), would be "fair" in the sense of not favouring any faction. If so, then what's the problem?

Cheers,

# posted by

Arne Langsetmo : 11:02 PM

The incumbents are a distinct party, Arne. So, yes, it's always the same party.

# posted by

Brett : 7:55 AM

Brett:

The incumbents are a distinct party, Arne. So, yes, it's always the same party.

No and no. Or did you mean the Incumbents Party™, who are making inroads with a lax and flaccid electorate more and more every year?

Cheers,

# posted by

Arne Langsetmo : 9:16 AM