Legal Commentary

Consider the "real meaning" of Hillary Clinton's disgusting "3AM ad": We are electing, in substantial measure, a "constitutional dictator," given the freedom of action, relating to foreign policy and the use of military force, that is the province of contemporary president's either, depending on one's favorite constitutional theory, because that's what Article II really means or because presidents over many years have successfully established themselves as "great deciders" in those realms. Independent of whether one places more trust in McCain, Clinton, or Obama--I obviously believe the correct answer is Obama, given the demonstrated capacity for misjudgment of the other two--there ought to be someone asking whether any of them should have the kind of power that the Constitution is deemed to grant our president. The abysmal George W. Bush is rapidly receding into history. But his can't-come--too-soon eviction from the White House doesn't change at all this "constitutional reality" of our political system.

And, of course, some of the sarcasm directed at the Democratic Party might be directed at the byzantine process established by the Constitution with regard to the passage of legislation. The NY Times has an article discussing the optimism some Democrats have about the prospects of gaining 60 seats in the Senate, which is the new number required in order to pass legislation. Why is it that our pundits don't write outraged columns about this farcical distortion of democracy (not, incidentally, required by the Constitution), especially when one combines the fact that the successful filibusters can be mounted by senators representing relatively small fractions of the American populace? Or why are there no columns discussing the consequences of the presidential veto for our "dysfunctional" political system? My partisan instincts tell me it's great that Clinton or Obama might be exercising the veto power beginning next January (though neither would have much occasion to do so, given the presumption of a Democratic Congress). But, frankly, I would gladly sacrifice that partisan pleasure in return for a constitutional amendment significantly limiting the power to either explicitly Constitution-based vetoes (i.e., the argument that the legislation violates the Constitution) or, perhaps, specific line-item vetoes directed at "earmarks" on the basis that they don't come close to satisfying the requirement of the "general welfare" clause, which is also, in its own way, a Constitution-based argument. No one has demonstrated to my satisfaction why we ought to have a tricameral legislative system that gives one person, who may have been rejected by a majority of the electorate (given our "convoluted and dysfunctional" electoral college) basically dictatorial authority to negate the views of majorities of both the House and the Senate when the basis of the veto is nothing more than policy disagreement with the congressional majority. Perhaps a pundit will see fit to discuss this feature of our system, in which the President is a one-person "superdelegate" with a vengeance.

Full post as published by Balkinization on March 07, 2008 (boomark / email).