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Another magazine breaks my heart

By Jack M. Balkin

Today's mail brought me the current issue of The Nation, a journal I have long admired, subscribed to, and, indeed, written for. So imagine my disappointment when its issue, devoted to "Ideas for a new progressive era," contained nary a mention of the need for any reflection at all on the adequacy of our "hard-wired" Constitution to the 21st century. To be sure, there is an interesting article by Aliz Huq, "Dismantling the Imperial Presidency," that concludes with the necessity for "restoring America's tarnished Constitution." As one might expect, though, all this refers to is the Bush Administration's depredations and the hopes that Obama will be a less imperial president. It apparently doesn't occur to Huq that more fundamental controls on would-be imperial presidents might include, for example, the ability to vote no confidence instead of having to engage in frustrating and fruitless debates about whether certain actions meet the presumed standards for impeachment set out in the 1787 Constitution. (And, frankly, I'm not sure that I agree with the article's premise that president's should never view themselves as possessing what Locke called "prerogative power." Perhaps what we should be doing is having a far more serious discussion than we've had up to now about how to design a least-dangerous form of "emergency governance" or even what Clinton Rossiter, following Machiavelli, called "constitutional dictatorship." An unfortunate reality of the Bush Administration is that its mixture of almost-fascist authoritarianism and demonstrated incompetence has made next to impossible a serious discussion of what kinds of "exceptional" powers we want to place in the hands of executives, whether we're speaking of the President or the head of the Federal Reserve Board.

I know that many of you disagree with me on this, and I'm not really trying to stir up another long thread about what would be wise policies with regard to either votes of no confidence or "constitutional dictatorship." Rather, what so dismays me is that there is not even the semblance of an intelligent public debate on such issues in journals that are, at least in self-presentation, most attentive to problems of presidential overreach and the like from a "progressive" stance. The Nation and The American Prospect are probably at somewhat different places along the political spectrum, but both, alas, seem to share an absolutely stunning complacence with regard even to the possibility that 21st century "progressives" might emulate their 20th century predecessors and ask serious questions about what might need changing in the Constitution. The period 1913-1920 saw four amendments to the Constitution, all of them important (including prohibition for its demonstration of the difficulty of prohibiting on basically moralistic grounds behavior that substantial minorities (at least) wish to engage in).

We're not even capable of having a serious discussion about whether we should provide a mechanism for "continuity in government" should a catastraophic attack deprive us of sufficient representatives and senators to constitute a legitimate government, as exemplified by the current posting on the Nation's web site by John Nichols. He repeats his foolish argument that "no governor should have the power to appoint a senator. Senate vacancies should be filled by the voters, as are vacancies in the US House." (As I've earlier demonstrated, his argument isn't necessarily foolish if there are only a couple of vacancies; it's an unmitigated disaster, though, should an attack deprive us of the active service of, say, 25 senators.) He concludes his posting, incidentally, by stating that Harry "Reid should stick to the stance he took after the governor was arrested December 9 and refuse to allow a Blagojevich appointee -- even one as credible as Burris -- to sit beyond the point when Blagojevich is removed from the statehouse." I would gladly serve pro bono on the Burris legal team should the Senate, having made its (I believe correct) decision to seat him in the first place, then try to remove him because Illinois has made the (presumptively correct) decision to bounce Governor B. Only those who read Article I, Section 5 as granting truly "plenary" power, i.e., unconstrained by any limits at all, could defend such a move. And that argument is no more attractive, or constitutionally compelled, than is the John Yoo argument about unconstrained powers in the hands of the president.

Full post as published by Balkinization on January 02, 2009 (boomark / email).