Tuesday, January 07, 2020

David Priess's excellent contribution to what ought to become a genuine debate

Sandy Levinson

David Priess has a superb op-ed in today's Washington Post about the inadequacies of our impeachment process, particularly placing the duty to conduct a trial in the Senate.  He canvasses a variety of alternatives (including a national recall election triggered by the House of Representatives.)  What is important is that he has now joined the very small list of persons who are actually willing to question the degree to which we're well served by decisions made in 1787 by people operating under decidedly different assumptions about our political system and without our own ability to draw the "lessons of experience" from the past 200 years.  At the very least, he suggests that the Succession in Office Act is, in addition to being unconstitutional, remarkably unwise.


Agreed about the Succession in Office Act being unwise; Putting the Speaker of the House in line to become President if the President and VP can be removed, when the Speaker has considerable control over whether impeachment is initiated, or the VP replaced? An unwise conflict of interest.

I can't agree about it being unconstitutional, however. "Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

The Succession in Office Act is that provision by law. I don't see any constitutional issue here, unless maybe nobody in the statutory line of succession didn't meet the constitutional qualifications for the office. An unlikely circumstance.

The op-ed in question is behind a paywall, could you recap the argument that the succession act is somehow unconstitutional?

The issue regarding the Speaker is whether she is an "Officer" within the meaning of the clause.

As a CA resident, and as an observer of the recall in WI, I'm skeptical of "recall elections". Fixing the Senate would go a long way toward fixing the impeachment procedure.

I am presuming the current 2/3 threshold for removal applies to all of these alternatives.

The Supreme Court: An impeachment could be referred directly, for immediate action, to the nation’s highest court — which, even if it has become more political over the years, remains a less partisan body than the Senate. Senators have shown that the separate oath they take when weighing the removal of an impeached president fails to miraculously transform them into impartial members of a constitutional jury; the Supreme Court would be an improvement.


(1) The Supremes are more likely to understand the Constitution's standard for impeachment and removal.


(1) The Senate is answerable to the People, the Supremes are not.

(2) Given the nearly perfect record since the New Deal of Democrat appointees rubber stamping the constitutionality of Democrat legislation, I am hardly confident in their lack of partisanship concerning an impeachment. Republican appointees may not be much better.

The states: The Senate trial originally did involve the states, in that each state’s legislature selected its senators until the 17th Amendment took effect just over 100 years ago. Returning the trial to these legislatures in some fashion could revive this federalist sensibility. Because state electors are the ones who vote the president into office through the electoral college, there is a reasonable argument to give the impeachment trial back to the states.


(1) State legislatures are answerable to the People.

(2) Closest approximation to the Electoral College.

Disqualifying Con:

(1) Completely impractical. The impeached POTUS would easily serve a full two terms before state legislatures would act.

The people: A nationwide referendum could be held as quickly as possible after the impeachment to decide the fate of the president. Impeachment has the effect of overturning the most recent electoral outcome, so having all of the people weigh in has merit, even if the logistical hurdles this would involve are substantial.


(1) The People are the definitely answerable to the People.


(1) Because of our government education system, the People have little knowledge of the requirements of the Constitution.

(2) Because of our partisan media, the People will not be properly educated by our press.

(3) Given the time it would take to call an referendum, how is this option better than an election?

A panel of former presidents and vice presidents: Since George Washington retired, America has always had between one and six living former presidents. At least two have been alive at all times during the past 45 years, and they have tended to act less as partisan hacks and more as elder statesmen. Perhaps a president’s removal should come only with a unanimous vote of the living ex-presidents. We could even add in the vice presidents, to get a larger body of people who remain more aware than senators of the burdens of the nation’s highest office, limits on presidential power and the downside of partisanship.


(1) None


(1) The most partisan alternative imaginable because they are partisans who do not have to answer to the people. See, for example, the Clintons opposing Bill's impeachment, but supporting Trump's impeachment.

Thanks, Mark. I should have thought of that. It does seem a cogent point.

I think the op-ed is a mixed bag.

The op-ed flags concerns on presidential succession rules that results in some conflicts of interest. But, that is a limited concern (if something to worry about) -- it directly only involves the specific person or persons who might come into power. Some other method of removal could also raise some other bias concerns. It isn't merely "the Senate" that is the problem there.

It also is argued that an attempt to impeach Tyler (that didn't go anywhere) was attempted even though "Tyler had committed no crime other than thwarting his own party’s agenda" and some other method of removal can have some "blatant political" reason, putting aside it is unclear what that entails. A "no confidence" or recall approach can have that too. The impeachment attempt against Tyler didn't go anywhere with the Whig leadership against it so it doesn't impress me much. A minor caveat too that Whig theory was that you could only veto for limited purposes so if Tyler went beyond that, it very well might have a constitutional ground.

It would amuse me if Sandy Levinson thought it a superb idea (offered in the op-ed as an option) of referring the Trump impeachment to the Roberts Court. Talk about self-dealing with two Trump appointments there alone. Then, there is this bit: "originally did involve the states" -- it still does. The people in states elect senators. Then, the people voted for state legislators, who elected senators.

Is the idea that the op-ed is good because it dares to suggest different constitutional rules are appropriate? That is not really rare. Many people support a parliamentary form of government and so forth. There are a decent number of people who don't simply worship the Constitution and support various changes to its structure.

Heck, *I* don't worship the Constitution. I just think it's better than what we have now. ;)

Seriously, whether you think the Constitution ideal, (What a silly idea, it has demonstrated multiple serious structural deficiencies.) or not, you know what's worse than it?

Not having a constitution. Which is the effective outcome aimed at by those currently attacking the Constitution, but proposing 'reinterpretation' instead of amendment. A constitution whose 'meaning' can 'change' without formal amendment is no constitution at all, it is a reed in the wind.

The absolute worst thing is a Constitution fixed in an archaic time, unable "to be adapted to the various crises in human affairs" (McCulloch). That's a Constitution which will fail catastrophically.

Not having a constitution. Which is the effective outcome aimed at by those currently attacking the Constitution, but proposing 'reinterpretation' instead of amendment. A constitution whose 'meaning' can 'change' without formal amendment is no constitution at all, it is a reed in the wind.

People have been accusing others who have a different view on what the Constitution means of "reinterpretation" since James Madison and Alexander Hamilton went at each other after writing the Federalist Papers.

The specific terms of the Constitution -- and the very people who wrote and voted on it said this if people care about that sort of thing -- in practice change over time as the facts, understandings and situations change. Broad terms like "due process of law" inherently have that character. Some basic core holds, but a lot changes.

"The absolute worst thing is a Constitution fixed in an archaic time, unable "to be adapted to the various crises in human affairs" (McCulloch). That's a Constitution which will fail catastrophically."

Good thing there's Article V, then. I'm not advocating a constitution unable to be adapted, I'm advocating a constitution which can only be lawfully, formally "adapted".

Having an unusable method of amendment is no different than having none at all.

This comment has been removed by the author.

John Marshall was talking about the abilities of the existing Constitution to adapt to the times without amendment in a variety of ways that people like him who voted on it might only dimly expect.

The problems with amendment is noted though as with the unanimous amendment rule of the Articles of Confederation such things might be deemed absurd and a workaround might be found. I allude to a comment in the Federalist Papers by James Madison. Some might find such things a violation of the document in place. A bit ironically.

But, we are talking about what is "currently" happening, sorry.

Being unusable to amend the Constitution in unpopular ways is a fundamental feature, not bug, of Article V.

Being unable to amend it in popular ways IS the bug.

Propose a popular amendment, and let's see votes on it, then. The votes are how you measure the popularity.

If somebody walks up to a door, and cuts the lock off without even trying to unlock it, I presume they know they don't have the key. When somebody tries to get an "amendment" from the judiciary, without bothering to even attempt the Article V route, it tells me they know they haven't got the votes, and their only hope of prevailing is a judicial fiat.

Article V was visibly functional well into the 70's, and it isn't the Constitution that's changed. So, why blame the Constitution for Congress no longer originating amendments?

I say, let's hold that constitutional convention, and see if any amendments originate that can be ratified. I'm betting Article V isn't broken, Congress is.

I'm pretty sure what Mark is getting at is that the current system doesn't allow for popular admemdment. The 17 least populous states representing only 7% of the population can currently block any amendment

Worse -- only 13 states.

As for amendments, here's the deal: if we get to the point where we can actually implement majority rule and pass laws consistent with majority approval, then we can reassess where we are with amendments. Any discussion of amendments before we're at that point is a diversion to distract us from the absence of majority rule.

The so-called amendment from the judiciary repeatedly is simply interpreting the Constitution in a valid way, if a way that does factor in that it is hard to amend. But, that is part of the constitutional system in place.

That's an amusing theoretical point which has no relevance to any real world case.

I looked at the ERA, for instance, and you could scarcely have come up with a list of ratifying and rejecting states which were further from that scenario; The percentage of states that ratified, and the percentage of the population living in those states, were practically identical. It wasn't defeated by a coalition of low population states, it stalled because it didn't have widespread support. Or, rather, had it and then lost it, as arguments against it started gaining traction.

The current system absolutely permits popular amendments, if support for them is reasonably distributed. If 51% of the population supported a particular amendment, uniformly distributed, every last legislator in the country would find that a majority of their constituents supported it, and it would pass by acclamation.

Requiring a supermajority of states doesn't require a supermajority of the population. It only requires that a modest majority be well distributed. While having a large majority favoring an amendment gets you nowhere if it is geographically concentrated.

The concern was that one part of the federation would lord it over another part. Coastal states over inland states, for instance. The effective requirement that support be well distributed prevents this.

I happen to think that it could be better implemented, perhaps ratification by referendum by House district, but still requiring approval within a supermajority of them. But doing it by states recognizes that the US IS, after all, a federation of states, not a nation.

"The concern was that one part of the federation would lord it over another part. Coastal states over inland states, for instance"

Read: 33 states might try to lord it over the other 17!

"Requiring a supermajority of states doesn't require a supermajority of the population. It only requires that a modest majority"

Math is hard for some.

If a measure had 100% support in 33 states, in which 93% of the population live, and 49% in the remaining 17, where 7% live, the amendment is blocked. The fact that Bircher Brett casually dismisses this speaks volumes about ever taking his appeals to democracy and popularity serious again. Of course, regulars here should know better on that beforehand.

"Read: 33 states might try to lord it over the other 17!"

Um, yes? Suppose an amendment were opposed by a coalition of the 17 least populous states. This would be no random event, it would have to be because the amendment somehow specifically disadvantaged the least populous states. It would not be an amendment aiming at the general welfare. It would be part of the federation treating another part as it's designated victim.

What we have here is a fundamental disagreement about how heterogeneous, spatially distributed societies, (AKA "federations".) should be governed.

"If a measure had 100% support in 33 states, in which 93% of the population live, and 49% in the remaining 17, where 7% live, the amendment is blocked."

And should this ever happen, it would be really interesting to inquire into exactly how such a phenomenally unlikely state of affairs had come about. But every voting system, every last one, has some situation under which it malfunctions. There is no perfect voting system.

A voting system where the malfunction involves some preposterous state of affairs that has never happened in real life is doing pretty good, IMO. No amendment has EVER failed for the reason you suggest!

Look, Article V was not abandoned in favor of judicial activism because amendments started being defeated by absurdly unlikely distributions of opinion. It was abandoned because people in power wanted changes to the rules that were likely so unpopular that there wasn't even any point of suggesting them to the voters.

"No amendment has EVER failed for the reason you suggest!"

Amendments only get proposed if there's some chance of passage. The flaw in the current amendment process, at least in part, is that it limits the universe of what's even conceivable. Chain, weakest link, etc.


This comment has been removed by the author.

"Article V was not abandoned in favor of judicial activism"

When was this? Jeffersonians in the 1790s were complaining about abandonment of proper constitutional limits with Jefferson himself pondering amending the Constitution before accepting the purchase of Louisiana from France.

Article V was never really abandoned though as its 18th Century formula became more and more skewered and out of date as the times changed, its problematic nature did increase. All the same, amendments still occurred. The last being in the 1970s, long after people complained about people "abandoning" amendments. Selectively so.

Citing a single proposed amendment, which very well might have atypical aspects -- though I'd like to see the work given 35 states ratified -- doesn't really negate the other side's argument. The talk of "reasonable distribution" is telling in itself. The author is clearly on record in supporting a large supermajority before amendments are ratified. Brett supports a small minority blocking things.

The 27A is a bit of a joker but later if we count that.

Post a Comment

Older Posts
Newer Posts