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Can there be too much democracy? Yes.

By Jack M. Balkin

John Nichols has a a href="http://www.thenation.com/blogs/state_of_change/390688/the_trouble_with_appointing_caroline_kennedy?rel=emailNation"blogpost/a for the Nation, a magazine I have written for and (therefore?) much admire. He, too, is upset by the bandwagon that is developing behind the candidacy of Caroline Kennedy to succeed Hillary Clinton in the Senate. He writes:br /br /blockquotepThe problem is not Caroline Kennedy, or Andrew Cuomo for that matter. It's not Rod Blagojevich or Paterson. It's the fact that governors get to appoint senators. When a U.S. House seat goes vacant -- due to death or resignation -- the Constitution requires that a special election be held. When a U.S. Senate seat goes vacant, a Constitutional loophole allows governors in most states to start wheeling and dealing. It's a lousy loophole. Governors should not be in the business of appointing senators, be they Kennedys, Cuomos, Smiths or Jones. The people should make the pick. The Constitution should be amended to require that all Senate vacancies be filled by special elections..... /pp/p/blockquotebr /br /Nichols concludes by writing that we currently have "an anti-democratic model for choosing senators. In fact, it is worse than the pre-1913 system of allowing state legislatures to do the picking." There may be something to his general point, though the embrace of the pre-1913 system seems more than passing strange. But Nichols's more important failure is to think of contingencies that make his suggestion really a terrible one. They involve what has come to be known as the "continuity in government" problem, triggered by, say, a hi-jacked plane crashing into the Capitol and killing or disabling lots of representatives and senators. Under the present Constitution, killed senators are no particular problem, since they can be replaced the very next day by senatorial appointment. (Disabled senators are another matter, precisely because they are not dead and therefore don't create a "vacancy" that needs to be filled.) Both dead and disabled representatives, on the other hand, are a significant problems, precisely because the Constitution requires precisely what Nichols wishes for with regard to the Senate: All members of the House must be elected, none can be appointed.br /br /This means that a catastrophe would almost certainly leave us without a functioning House or, if senators were "merely" disabled, Senate, and waiting around for special elections would scarcely help. Nichols, incidentally, has a strange bedfellow: Rep. James Sensenbrenner (R-Wis.), the former chair of the House Judiciary Committee who simply refused to hold any hearings at all on a proposed amendment to the Constitution, developed through a commission co-sponsored by the American Enterprise Institute and the Brookings Institution, that would allow for alternatives to special elections in the case of "wholesale" vacancies. Sensenbrenner believes that the Constitution has it right--that every representative should be elected, and that a catastrophe that would, say, wipe out 1/2 of the House could easily be tolerated systemically. Nichols apparently believes the same with regard to the Senate.br /br /I think that such a view is close to bizarre. Among other things, as I argue in my book, the present Constitution assures a full-scale presidential dictatorship in the case of a catastrophe simply because there would not be even the possibility of a functioning, politically legitimate, Congress, and the American people would properly demand action.br /br /I am as critical as anyone I know of "our undemocratic Constitution." But, putting to one side other debates we have had and will have in the future about other provisions of the Constitution, Mr. Nichols's embrace of choosing senators by popular election, whatever the circumstances, is little less dangerous than I believe the unamended Constitution to be. The 17th Amendment might not be perfect; it does allow, for example, the former governor of Alaska, Frank Murkowski, to name his daughter Lisa as his successor to the Senate (though I believe that it would be perfectly constitutional for states to pass laws preventing governors from choosing family members, just as federal law now prohibits a recurrence of the "Bobby Kennedy phenomenon," in which he was appointed to be Attorney General by his brother. But there is no real evidence that it disserves our country the way so many other features of the Constitution do. If the electorate doesn't like dynastic politics, there is an easy enough way to express that, at an election that emmust /embe held within a two-year period following the gubernatorial choice. (If Ms. Kennedy is slected in January 2009, she will have to face the voters in November 2010, as is true of the successors to Senators Salazar, Obama, and Biden (though the last has already pledged not to run in the 2010 election when, presumably, Joe Biden's son will try to succeed his father). Mr. Nichols proposed solution, on the other hand, has truly catastrophic implications even if, most of the time, it would be entirely benign in its application. br /br /br /span class="fullpost"br /br /br //spanspan class="fullpost"/span

Full post as published by Balkinization on December 18, 2008 (boomark / email).