an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I'm pleased to announce, at least tentatively, that I have come into possession of a previously unknown document written by Abe Fortas. This paper, entitled "The Constitution and the Presidency," was drafted in late 1973 or early 1974, a few years after Justice Fortas resigned from the Supreme Court. It is a response to Watergate, and gives Fortas's analysis of the constitutional abuses of the Nixon Administration and his proposed remedies. I'll do more than one post on this, but for now I want to discuss (in the spirit of Sandy Levinson) how Justice Fortas thought that the Constitution should be amended to limit the power of the Presidency.
"The controls that the Founding Fathers adopted," Justice Fortas began, "are no longer adequate. The balance that the Founding Fathers ingeniously devised no longer exists. It has been destroyed by the complexities of modern life; the vast expansion of governmental function; the decline of Congress due to the growth in the number of its members and, principally, to its failure effectively to reorganize its management and procedures; and the enormous increase in Presidential power and prestige." What should be done about this?
1. Fortas supported a constitutional amendment providing that a two-thirds vote of the House and Senate would trigger a special election for President and Vice-President. The election would be federally financed and held 90 days after this no-confidence vote. The incumbent Administration could, though, run in this campaign and be reelected.
2. The Twenty-Second Amendment should be repealed.
3. The Twenty-Fifth Amendment should be changed to say that a vacancy in the Vice-Presidency would trigger a special election to fill that position, instead of having the person nominated by the President and confirmed by Congress.
4. In the event of a presidential death or resignation, the Vice-President should hold office for only 90 days until a special election is held to choose a new President. Moreover, the Vice-President's role in breaking ties in the Senate should be abolished and the VP should be able to run one of the Cabinet Departments.
The two fundamental changes in US governance increasing the president's power were the creation of the administrative state delegating legislative and judicial power to the executive and the development of a large standing military enabling a president to go to war without Congress.
I do not see how Fortas' suggested constitutional changes address these issues/problems.