Balkinization  

Monday, August 11, 2014

Lawrence Summers on constitutional reform

Sandy Levinson



Former Secretary of Treasury (and Harvard President)Lawrence Summers has just published an op-ed in the Washington Pos, "Ending Presidents' Second Term Curse," arguing that we need to move to a single-term presidency, perhaps, he writes, of six years.  The evidence, he suggests, is that second-term presidents rarely accomplish anything significant.  A similar (unacknowledged) argument was made during the Bicentennial more than a quarter century ago by elite Washington lawyer Lloyd Cutler and political scientist James Sundquist, who advocated a single six-year term. 

 Summers concludes his column by writing, somewhat laconically, that “that National reflection on reform is overdue.” Well, yes!  But one wonders what model of constitutional change Summers has in mind.  Who, for example, will be doing the reflecting, with what result?  Is he calling, for example, for a nationwide mass movement to “reflect” on the multiple explanations for the fact, as he puts it in his opening sentence, that “Disillusionment with Washington has rarely run higher.”  Or is his column, as one might expect given his background and its venue, directed at fellow insiders who will….  Do what? Call for a constitutional amendment in the absence of a national outcry that such a fundamental change (which would, among other things, make us like Mexico, which relies on a president who serves a single six-year term)?  Why would anyone believe that two-thirds of each house of Congress would support, without significant pressure from their constituents, such a change?  Or, perhaps, Summers will lend his illustrious presence to the call for a new Article V constitutional convention that will have a mandate to engage in a truly comprehensive set of “national reflections” on the various reforms that are indeed overdue in our sclerotic 18th century constitutional order?

I do not mean to be as snarky as I may sound.  I am grateful to practically anyone who is willing to go beyond attacking one or another contemporary “leader” and instead suggests that we need to look at the extent to which our basic institutional structures may be at least partially to blame for our predicament.  And Summers is obviously no ordinary person.  His endorsement of an Article V constitutional convention could be a breakthrough moment, requiring other establishmentarians, automatically identified as “serious” and “thoughtful,”  to take seriously ideas that they simply dismissed when made by ordinary “folks” who lack such credentials.  
I’m not sure where I stand on the single-six-year term, though I do know that my support would be conditional on including the power of Congress, by a two-thirds vote meeting in joint session (to limit the power of the Senate) to vote “no confidence” in an incumbent president anytime after, say, the first two years of the six-year term. In any event, it’s good to have Secretary Summers’ contribution to the discussion of our constitutional system.  But will in fact anyone (beyond predictable academics) take it seriously enough even to discuss it? Is this just another example of "sound and fury" (of the kind that I often engage in) that in fact "signif[ies] nothing" about the actual potential for changing our remarkably dysfunctional system?


Comments:

It's difficult for people who are in "interpret the Constitution to mean whatever I want" mode, to switch gears, and advocate changing the actual words. The intersection of, "The meaning isn't determined by the words." and, "It's important we change the words." is too small to matter.

If there's going to be a convention, it's going to be driven by originalists, because only people who think the words matter care enough about the words to try to change them. Maybe once originalists have managed to force through the call for a convention, living constitutionalists can hijack it. They'll certainly try.

But it's my side of the aisle that will drive a convention in the first place. You've got to believe in constitutions to bother changing them.
 

Brett brings in this manure from his garden:

"But it's my side of the aisle that will drive a convention in the first place."

this by a 2nd A absolutist AND self-proclaimed anarcho libertarian. Brett may think he and his side of the aisle would drive a convention but he and they will quickly run out of gas .

As to Brett's:

"If there's going to be a convention, it's going to be driven by originalists, .... "

does he mean the originalism of the past in its evolving variations on original meaning/ understanding as of the new convention? With the past lessons of interpreting/construing the Constitution whether based on originalism or non-originalism, perhaps the new convention should make clear what is actually meant/understood so that future generations can be well guided in interpreting/construing a newly amended/revised Constitution without the historical tidbits of evidence "discovered" from time to time in future years that is the equivalent of "law office history." In other words, make it so clear that so-called originalism would not be required in years to come. Of course, this could economically impact not only constitutional scholars in and out of the academy but much of punditry as well. (Hmmm, would that be so bad?)
 

Sandy- let me suggest that your reference to an “Article V constitutional convention” is unhelpful and conflates two different things.

The purpose of an Article V convention is to propose individual constitutional amendments. While we can debate whether such a convention may be limited, as a matter of law, to specific amendments or subjects, as a practical matter the state legislatures will not apply for a convention with a broad mandate to propose revisions to the Constitution. Some think that the states will not apply for the convention unless the specific amendment to be considered has been drafted in advance.

What you want is not an Article V convention, but something analogous to the 1787 convention, where the greatest minds of the age assemble to debate fundamental questions of constitutional design. There is no need for such an assembly to have any legal authority (the Philadelphia convention had none); what it needs is the prestige for its work product to be taken seriously by Congress and the state legislatures.

 

"Or, perhaps, Summers will lend his illustrious presence to the call for a new Article V constitutional convention that will have a mandate to engage in a truly comprehensive set of “national reflections” on the various reforms that are indeed overdue in our sclerotic 18th century constitutional order? "

We should start by identifying the problems that require constitutional reform to remedy. As the Obama administration demonstrated, supporting change for the sake of change rarely works out well.

Can we even agree on a description of our current political economy?

Is our current political economy desirable or even sustainable?

What are its problems?

Can those problems be addressed by constitutional reform?

When we answer those questions, then we can start discussing specific reforms to address our problems.
 

Brett is far from alone, and at the end of the day I really don't want to single him out here (think of my comments to an archetype labeled "Brett" for convenience), but continues to conflate in practice "whatever I want" and "I'm strongly in disagreement with the common view of a range of things and think people are strongly "deluded" (see his digs at Stevens) if they aren't "lying" when they put forth their views."

Hamilton and Jefferson strongly thought each person perverted the Constitution, but it wasn't "whatever I want" mode. They had very strong differences on what the Constitution means. Again, this conflation between understanding and bad motive (not honestly following the Constitution, just doing "whatever I want") is not new. It still is rather unfortunate.

I have repeatedly shown that I think "words matter" and again don't think of it as personal. People like me have too. Using "words" and showing they "matter" many show the flaws with originalism. Or, provide good or at least reasonable accounts that strong disagree with "Brett."

This conspiracy theory or whatever it is ("hijack") likewise is not new. People who thought "words matter" railed in the 1790s. Again, as a whole, it was a matter of different sides honestly having strongly different views.

===

I don't know what "no legal authority" is supposed to tell us. The Congress formally called the 1787 convention "to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union."

It is true that it didn't on its own authority have power to have the changes put in place (it basically assumed the power to override the unanimous requirement) but it the convention was official & likely expected to put forth some sort significant changes that would pass, if not as much as it did.

This seems analogous to Prof. Levinson's plan with the added wrinkle of using Art. V rules. This would help make the convention more legitimate though in the nature of things something similar (e.g., equal weight to CA and Wyoming might seem ridiculous as they thought RI blocking an amendment was) might happen.
 

Brett: But it's my side of the aisle that will drive a convention in the first place. You've got to believe in constitutions to bother changing them.

If your political opposition will follow the Constitution as written, that alone is reason enough to establish your policies through the document.

Remember that, for progressives and socialists, the only thing that matters is achieving the desired end result.
 

Perhaps our CO gasbag's ass-essment:

"Remember that, for progressives and socialists, the only thing that matters is achieving the desired end result."

could equally - and perhaps more so - be applied to Brett's side of the aisle that has doubled in size with the addition of our CO gasbag. And I suppose we can find a third with the latter's mentor Tom-Tom Tancredo.
 

I have read with care Summers' op-ed. Having been born in 1930, I am very much aware from personal observation (except that of FDR in 1937, when I was not quite 7, learning of it however as I got a little older) and am not impressed with his concept of the second term curse with his truncated histories. Yes, being a lame duck with a second term can present some problems. But are they insurmountable? With a six year single term, a president upon election becomes sort of a lame duck. And Sandy's proposal for a "no confidence" vote power by two-thirds of Congress in a joint session could make life more difficult for a president with a joint session dominated by the other party.

Yes, let's discuss this single term. But is political dysfunction brought about by a second term or other factors in the Constitution. I have expressed my view that the Symposium at BU Law School last year on "Political Dysfunction ... " did not come to a consensus that there was political dysfunction, and even if there were, there was no consensus that it was because of the Constitution. Many of the younger panelists weren't convinced of either.

Going back over Summers' truncated histories of second terms, some of us who lived through them may or may not have thought of political dysfunction with each second term. Yes, there were issues of great concern, primarily with wars (excepting Ike who in his farewell address warned of the military/industrial complex that wars seem to ignore). We survived Nixon. We survived Reagan. We survived George W. These three significantly contributed to the political problems of today. Both Truman and LBJ wisely did not seek a second full term, with their respective wars playing a significant part in their decisions. To the extent we have political dysfunction today, I go back to Brown v. Bd. of Educ. in 1954 that led to the Civil Rights Acts of the 1960s and party changes reflected today that may be exacerbated as changes in demographics take place. The attacks on the Warren Court's activism, at bottom, I submit, is Brown, although Brown is not directly challenged in those attacks.
 

Presidents do not have a second term curse, Obama is simply a singularly inept president.

If presidents are willing to work with the Congress they have in a second term, then they can enact fairly substantial legislation. Reagan, Clinton and Dubya all did so with the opposition controlling one of both chambers of Congress.

Obama is an outlier. From the beginning, he literally told the GOP opposition that "I won," rejected all of their legislation out of hand, and continuously and personally attacked them during his never ending campaign.

When he started his political career, Obama told a Chicago paper that he viewed government service as simply a more powerful platform to continue community agitating. That is precisely how he treated the office of president.

Of course, agitating is not how you build bipartisan coalitions. Go listen to LBJ's tapes to see how a competent president does this.
 

Spreaking of singularly inept, George W was cursed in his first term serving as puppet to Dick Cheney. While George W eked by his election in 2000 by the Court (5-4), he won reelection easily in 2004. It was the curse of his first term that caused his second term problems. (Do I have to recount the ways?) So the "successes" of his tax cuts, his two wars, his lack of funding therefor, his deregulation, etc, surfaced in his second that flamed out with the 2007-8 Great Recession, the worst since the Great Depression of Hoover. This was dumped on Pres. Obama. A lot of progress with the economy has been made despite both the GOP controlled House and the GOP Senate minority's ability to thwart meaningul legislation.

Our CO gasbag referens to Obama as-"an outlier. But our CO gasbag is an out-and-out liar.
 

Shag:

This Bush administration rendition is self serving, but here is a partial list of legislation Dubya passed in his second term. This list does not include the unpopular, but still very significant, Sarbanes-Oxley Act and TARP.

http://georgewbush-whitehouse.archives.gov/news/releases/2005/08/20050803-1.html

Obama has enacted nothing in his second term apart from the sequester, which he only offered because he mistakenly thought the GOP would reject it.

Obama is the only president in American history who has never once in his first or second terms assembled a bipartisan majority to enact anything.

As I noted above, singularly inept.

As an aside, your Democrat Congress as well as Dubya were in power when the Clinton era banking regulator directed and subsidized subprime home mortgage market defaulted.

As a second aside, we have been in a five -plus year depression. Our economy is only doing well compared to the PIIGS countries. There have only been two depressions (a recession without a recovery) in American history - Hoover, FDR and Obama - every single one a progressive or socialist government.
 

I'll get back to our CO gasbag's "asides" later in the day. (He gets his history apparently from "Little Blue Books.")

In my 1:44 PM comment I made reference to Brown v. Bd. of Educ. (1954). Today's NYTimes features Curtis Wilkie's "The South's Lesson for the Tea Party" which includes this:

"The [Tea Party] movement’s success, with its dangerous froth of anti-Washington posturing and barely concealed racial animus, raises an important question for Southern voters: Will they remember their history well enough to reject the siren song of nativism and populism that has won over the region so often before?"

We evidence this at this Blog with the comments of our dynamic dyslexic duo Brat and Bert.

Wilkie has southern creds. This column is a must read in considering any political dysfunction we have today. Wilkie doesn't specifically reference Brown but covers its period.


 

Shag:

The lie that the Tea Party is a confederate movement is so 2010.

You really do need to get new slanders while you watch Tea Party state governments get reelected across the north in 2014.
 

In our CO gasbag's second aside first that we have been in a "five+year depression," he continues with this:

"Our economy is only doing well compared to the PIIGS countries. There have only been two depressions (a recession without a recovery) in American history - Hoover, FDR and Obama - every single one a progressive or socialist government. "

Only the PIIGs? Compare our economy with Europe as well as Russia's Eurasia. Hoover was a progressive or a socialist? Our CO gasbag conveniently ignores that the Crash of 1929 took place before Hoover's first year was completed. Perhaps Hoover's non-progressive, non-socialist GOP predecessors Harding and Coolidge during the "Roaring Twenties," sort of a Gilded Age, contributed a tad to what happened in October of 1929. Anad Hoover had more than 3 years of his term to address the economy; failing to do so cost him a second term and the Great Depression was dumped on FDR who indeed was a progressive. Sad to say the Depression lasted too long being so deep that it was rescued by WW II, which was not a war against the non-progressive Axis.

And our CO gasbag demon-strates his ignorance on economics with his claim that we are still in a recession, the remants of the Great Recession of 2007-8 that Bush/Cheney dumped on Obama whose term started in 2009. By all reputable definitions, America got out of that recession several years ago, although the economy has a way to go as Repuclican/Tea Party gridlock has limited the recovery. Bush/Cheney did a Hoover over their 8 years. Query: Were Bush/Cheney progressives or socialists?

Our CO gasbag's first aside does not identify the significant factors that led to the Bush/Cheney Great Recession 0f 2007-8, like two tax cuts for the wealthy, two unpaid wars, going from the Clinton surplus to deep doo-doo debt. Bush/Cheney laid the foundation for their Great Recession 0f 2007- in their first term.

As to CO gasbag's later comment on "so 2010," he ignores his fellow traveler ( and mentor) from CO, Tom-Tom Tancredo's advice to the Tea Party to stock up on guns and ammo and get ready to rumble.
 

6 year term is a terrible idea. Second terms are good as referendum on 1st term. Real problem is lame duck status imposed by 22d Amendment. It should be amended to allow reelection to 3d term, but limit that term to 2 years, and maybe a 4th and last of one year. I doubt presidents would elect to do that, but threat creates uncertainty to allow president more leverage with Congress. Real problem though is the irresponsibility of Congress. We need to go to a parliamentary system with prime minister as chief of government, and put an end to calendar based, clockwork elections that are too easy to game.
 

TKTexas 1's:

"We need to go to a parliamentary system with prime minister as chief of government, and put an end to calendar based, clockwork elections that are too easy to game."

might provide for comic relief if there followed a "Question Time" on TV in the manner of the "Mother" country, laid out by Wikipedia:

http://en.wikipedia.org/wiki/Question_Time_%28TV_series%29

Is it "Here, Here" or "Hear, Hear"? Would we need the Sunday political talk shows? Would we need Jon Stewart, Stephen Colbert, Bill Maher? With some of the sad samples we have in Congress, a prime time Question Time would be rollicking, competing with "Last Comic Standing."

All kidding aside, I have enjoyed watching "Question Time" even though I may be unfamiliar with the issues the questions raise. But I do wonder how much time is spent by the Prime Minister and his staff in preparation, as well as that of the members and their staffs on each political side.

I'm not thrilled with a 6-year term as I have previously commented. But I'm not sure that America would be better served by a parliamentary system than the current system.

As an aside, perhaps TKTexas T has some inside views on the indictment of Texas' Governor Perry.
 

"and put an end to calendar based, clockwork elections that are too easy to game."

And replace them with, "Elections held when the person scheduling them is ahead", which are easier to game?

The problem is less the system, than the culture. No set of rules works for people who refuse to be bound by rules.
 

There’s so much comedy on television. Does that cause comedy in the streets?
Agen Judi Online Terpercaya
 

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