Almost everyone these days, regardless of formal political identification, agrees that one implication of our present discontent is the need to revamp our system of regulation vis-à-vis the domestic and international economy. Republicans and Democrats no doubt disagree on particular solutions, but few indeed are currently willing to repeat the often mindless maxim, "If it ain't broke, don't fix it."
The paragraph above is almost banal, unlikely to provoke much criticism. But consider the fact that the Constitution of the United States is also a "regulatory system" inasmuch as it structures our political institutions and affects significantly what is, and is not, possible within our system. My own view, set out at length in my book Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), is that we are seriously disserved by some remarkably unchanged aspects of the Constitution of 1787. We should be addressing the possibility that this 18th century document should be made suitable to a 21st century reality in the same way, say, that the Securities and Exchange Commission or the Federal Reserve should be revised to take account of developments over the last half-century. Unfortunately, the very discussion of such a possibility is totally absent from contemporary American politics, whether one looks at national leaders or even the leading pundits, of both the right and the left. A banal truth with regard to standard-form "regulatory agencies" has become almost literally unsayable with regard to our most basic regulatory instrument.
Let me note only one way that the Constitution-as-regulatory-system disserves us, the ten-week hiatus between election of a new president and his inauguration. I pick it because it is both obvious and of immediate relevance. Gordon Brown and Nicholas Sarkozy have called for a summit conference to discuss what needs to be done to stabilize the world economy and, presumably, create new sets of institutions to respond to the realities of the tightly interconnected global marketplace. No particular date has been set. Assume, though, that a summit conference couldn't be arranged before, say, November 4, 2008, and that it would be completely inadvisable to put it off until, say, January 20, 2009.
So the practical question is this: Who would represent the United States at such a conference that took place during that period? One obvious answer is George W. Bush, who, after all, is guaranteed by the Constitution to have a feudal tenure at the White House until January 20, 2009. But it is also obvious that Mr. Bush has lost almost all semblance of political authority with regard to the economy (and much else). He retains legal authority, but, as Richard Neustadt pointed out in his classic book Presidential Power some half century ago, any effective president needs the "power to persuade" as well as the legal power to order. As of November 5, 2008, we are almost certain to know who Mr. Bush's replacement will be, and that person, as of that date, will possess enormous political authority, but, of course, absolutely no legal authority. This, to put it mildly, is most unfortunate. It is possible, of course, that the winner would be invited to attend by Mr. Bush, but would that mean that the US would be represented by "two presidents" or, in a practical sense, by "no president." (Who would resolve any disagreements between them?)
As it happens, one doesn't need to amend the Constitution to "solve" this problem at least for this year: Dick Cheney could resign on November 5, to be replaced by the winner of the election. This could take place simply by following the procedures of the 25th Amendment, which allows a president to nominate a new vice president should the office become vacant, subject to congressional confirmation. Upon such confirmation, President Bush could then resign, to be succeeded by the newly installed Vice President. That person, whether Barack Obama or John McCain, will then be able to combine political and legal authority and to attend any such summit conference as the full-fledged representative of the United States. (Vice presidential resignation, incidentally, is not unprecedented. Not only is there the case of Spiro Agnew, who resigned in disgrace as part of a plea bargain; a more palatable precedent, perhaps, is John C. Calhoun's 1832 resignation as Andrew Jackson's vice president nine weeks before the end of his term, so that he could become senator from South Carolina.)
The "only" problem, of course, is that it is close to impossible to imagine either Mr. Cheney or Mr. Bush "putting country first" and providing this "quick-fix" for what is obviously a genuine deficiency in our Constitution's regulatory system, the 10-week hiatus between election and inauguration. So we may be destined to experience 10 weeks in which the United States lacks a fully-functioning government, as was the case during the Secession Winter of 1860-61 and the Depression Winter of 1932-1933, neither a happy precedent, of course.
An earlier generation, faced with the even worse inauguration date of March 4 had the wit to amend the Constitution, via the almost unknown, because unlitigated, 20th Amendment, which moved Inauguration Day up to the present January 20. Today, January 20th is, both literally and metaphorically, far close to March 4 than to November 4, and we should have the same wit demonstrated by the framers of the 20th amendment to revise our Constitution accordingly to provide a far more sensible inauguration date. The only problem is that any significant move nearer election day would require facing up to another dreadful feature of the Constitution, the electoral college. That, too, is part of our initial "regulatory system" that has most certainly outlived whatever usefulness -- which was, initially, the protection of slave states -- it may have had.
It would be wonderful if our current willingness to raise basic questions about our broken regulatory system extended to questioning the very heart of that system, the Constitution. Earlier political leaders like Woodrow Wilson and Teddy Roosevelt were more than willing to do so. We are very much in need of their spirit today.