The Constitution as a Regulatory System: Inaugurating a New President

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.

Comments

[ComeOnAmerica]

Thank you for a very informative article. On a related note for those posting comments here, I highly recommend the book "Conservatives Without Conscience" by John Dean, (yes, that John Dean). He talks about the process of government in all 3 branches. Terrific book!

[Romulus]

What we need is for the legislatures of the States to call a Constitutional Convention.

[NotImpressed]

What makes you think the result would be an improvement? Who would the participants in such a convention be? What interests would dominate? How much of the Bill of Rights would survive?

[messy]

Right. All the wingnuts would get in and there goes the baby with the bathwater. A ConCon II is the only thing in the constitution that isn't constrained by the Constitiuion. They could make Sun Mynong Moon in the presidency for life if they wanted. Jeez!

[aurora19]

Professor Levinson is correct in stating that the constitution has an element of structural inefficiency that is designed to protect the interests of factions in the political minority. It extends beyond the constitution through processes such as filibuster and the use of pardoning power by lame duck officials. I think his point is that we have a choice in determining what type of inefficiency we have in our constitution. A document that attempts to prevent the accumulation of power in one branch can also result in unwarranted expansionof other branches because there are areas of power where one branch is allowed almost unchecked arbitrary power. This was the issue with Bush, who subsumed almost all power possible in the exectuive branch by redefining almost all policy functions in terms the executive could control.
I think that since efficient responses to modern crises demand flexibility and accountability we should commit to expand the power of congress rather than the executive. The terms of members of the house are shorter, the need for consensus is higher, and the lack of artificial restraints on direct public participation (for example, the electoral college) makes it a lot more accountable to their constituents. Moreover, if we have to give a branch of the government more of an ability to interpret the constitution, I think that congress is more capable than George Bush or the swing vote on the Supreme Court (Justice Anthony Kennedy).


Go Longhorns!

[laocoon]

I must disagree and insist GO TIGERS

[messy]

The genius of the framers was this: They knew human nature and wanted to protect posterity from people like themselves.

[ProgressiveVoice]

As long as a process exists for amending the Constitution, then that is how the Constitution should be amended. If Inauguration Day has been successfully moved up once by amendment it can be done again.

[EbonBear]

Here (Britain), the changeover period is three days.

You make an interesting point but the problem is that changing the Constitution, in this political climate, opens it up to all kinds of abuse from the extremists in Congress (of whom, there are now a worrying number).

[bassman4rent]

I couldn't disagree more. The problem isn't the document, but the self serving politicians who make up,not only our legislative body, but the executive and judicial branches of government as well. Our congress wastes it's time debating non issues and posturing for the media. Can you say "Federal Prosecutors?" I'm certainly no fan of President Bush, but he is certainly within his authority to hire and fire as he sees fit. Steroids in major league baseball? Who really gives a rat's ass? Just the MLB owners determined to keep profits up. The one pressing concern for the vast majority of our legislators is, you guessed it, getting re elected. Federal judges want to be known as "constitutional scholars" but don't want to be seen as "legislating from the bench. I hope I've made my point.

[burndtdan]

actually, there are laws regarding the federal prosecutors, and those laws were broken.

but i don't see what any of that has to do with the article.

[newshawk14]

I think your point on the time gap between election and inauguration is well taken. It harks back
to the era when land or sea transport was quite extended in time. Whoever is elected president
does need a little time to put his cabinet in order, and conduct an orderly transition between the
old administration and the new. How long is necessary, is a good subject for debate.

[fairwitness]

Any attempt to make the Constitution "suitable" would, unfortunatelt, open it up for serious subversion by those who would use the opportunity to cast their own (very likely mendacious) agendas into permanent legal stone. Alas, we are doomed to live with the Constitution we have, not the Constitution we want. We could do better, of course, but, given the olympic struggles for power now underway and the contempt (it's a "goddamned piece of paper") for the Constitution some political factions have already demonstrated (and probably more examples will be unearthed after they are gone in Jan), who thinks new and more "dreadful" results couldn't very well result from such an opening?

It's broke, but we can't risk the fix.

[tomjones44]

then what is america good for?

[burndtdan]

the only real problem as i see it with the constitution is the lack of a clearly enumerated right to privacy. that would both solidify most of the rights we have interpreted, and resolve many debates about others.

[fairwitness]

Very, very good question, tom. Circumstances are now forcing thoughtful people to seriously ask it. Our government has been subverted by a lawless, craven and brutal gang of thieves who have systematically gutted all legal and moral principles on which it was built, all done in almost plain sight and with the complicity of Congress, the Supreme Court and perhaps even the majority of the people. How we address that fact is the subject that should be at the top of our media agenda every day until it's resolved, but, of course, it won't be as long as the corporate media conglomerates control all means of communications.

Under the current circumstances, in principle, the founders would probably recommend revolution. When we discover the true extent of the crimes of the Bush Administration we will all wonder why we didn't initiate, at the very least, impeachment, or, in extremis, rebellion. But, given the power now accumulated in the executive branch, it's secret mercenary millitia, it's subversion of the justice system, it's neutering of the legislative branch, it's powers of survelliance, secret detention and imprisonment of dissenters, it's ability to instantly ruin the lives and livelihood of anyone they choose and their demonstrated brutality upon "enemy combatants", it's no wonder that the usual and legal remedies for the crimes and usurpations we have witnessed (and are sure to discover in the future), are largely moot. Certain ruination, suffering and death are negative motivators except in the most extreme, most hopeless, of circumstances.