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Our Constitution Gives Us the Worst of Both Worlds

By Jack M. Balkin

I have been posting, perhaps tiresomely, on the extent to which our Constitution--and the realities of modern life--put in office a de facto "constitutional dictator" with regard to some domains, particularly military and foreign policy. I will not bother repeating myself on this, though I note that Nick Kristof has a fine column in today's NYTimes, titled "Impulsive, Impetuous, Impatient," on how we would probably all be dead had John McCain been in the Oval Office in 1962 during the Cuban Missile Crisis, when we really first experienced, in its full meaning, the extent to which our lives were in the hands of a single "Decider" (who, fortunately, rejected the advice of most of his McCain-like "wise men" to attack Cuba and precipitate World War III). But I want to call your attention to another fine article in today's Times, by Peter Baker, titled "Waiting to Lead (or Not)," which points to two grievous defects in our Constitution. One of them, of course, I also continue to harp on, which is our inability to fire a president in whom we've lost confidence. So we have the paradox that a person who has near-dictatorial legal powers in some areas has almost no "authority," of any kind, to persuade anyone with regard even to vital policies. Thus Baker writes:

. .. . [T]here were three not-quite presidents sitting at the table ? one who still technically has the job but can?t get anyone to listen, and two others who have everyone?s undivided attention but don?t yet have the job.

The session with President Bush, Senator John McCain and Senator Barac Obama illustrated just how much power at the top of the nation?s political hierarchy has already fragmented, leaving a leadership void that complicated the path to consensus last week over the deepening turmoil on Wall Street. If Mr. Bush thought summoning the two major-party nominees would neatly yield bipartisan agreement behind his proposed $700 billion bailout, he quickly learned how steep that climb is with an election around the corner.

What is left, though, is uncertainty about whom to follow. ?There?s no leadership; nobody?s leading,? said Pat Caddell, who was an adviser to President Jimmy Carter. ?The country?s not looking to him to lead,? he said of Mr. Bush. ?And the Congress couldn't lead an Easter egg hunt.?

The problem for Mr. Bush is that he has all the levers of the Oval Office without all of the authority. Even some of his own advisers concede that the country long ago tuned him out, and last week?s revolt by House Republicans against his initial economic plan demonstrated his trouble asserting command even of his own party. As Ed Rollins, the White House political director under Ronald Reagan, put it cruelly but crisply on CNN on Friday: ?This isn't a lame-duck administration. This is a dead-duck administration.?

Can anyone, of any political stripe, really argue that we're being well-served by the constitutionally-mandated continuation, for even one more day, of George W. Bush in the Oval Office? But, of course, that may not be the worst of it. Baker also notes that George W. Bush will remain president even after he has been truly and justly repudiated on November 4 by the election of Barack Obama (or, for that matter, the John McCain who ever more proclaims that "I'm a maverick who hates Bush as much as you do"), since the Constitution postpones the inauguration of a new president until January 20. Those of you who just love the Constitution in its present form should consider that the original Constitution put off inauguration until March 4 (and, in postponed the first meeting of newly elected Congresses for13 months). These lunacies were addressed by the 20th Amendment, which established our current inauguration day and begins the first session of newly elected Congresses only seven weeks after election. So there is actual a model in our own constitutional history for addressing constitutional deficiencies. Past generations, sometimes led by such major national figures as Woodrow Wilson and Teddy Roosevelt, have been willing to ask how well the Constitution serves the nation (which is, after all the point of the Constitution).

January 20 is far closer, literally and figuratively, to March 4 than to November 4, and the costs of postponing the exit of the repudiated incumbent are far higher now than they were even in 1932-33, when the US had no effective government with regard to confronting the Great Depression. I applaud Baker's very fine article, but I am dismayed by the fact that, at the end of the day--or the article, our defective Constitution is taken as a given, and not something to be addressed in the same way, for example, we are finally addressing the failures of our (non-)regulation of financial markets. Why can't we have a serious national discussion about whether we also need reform of our most basic "regulatory institution," the Constitution?

What send me up the wall and makes me insufferablel to some of you is not that my ideas have been heard and found wanting, but, rather, that there is simply no serious national discussion about the Constitution at all, save for devotees of this blog and fans of Larry Sabato. I wish that more of you agreed with me, but I actually feel that I've gotten a fair hearing from those of you who don't. My complaint isn't with you. Rather, it's with the national punditry, including many writers I admire, who don't even consider the role played by the Constitution in our present unhappiness. They are no better than the "regulators" who were blind to what was going on at Enron or AIG. Their operative mantra was "The "free market" is wonderful, so let's leave it to its own devices." Well, look where that's gotten us. But we're doing the same with regard to another mantra, "Our Constitution is wonderful, so let's leave it (and us) to its own devices."

Full post as published by Balkinization on September 28, 2008 (boomark / email).