Thursday, February 7, 2008

How the Constitution is structuring the 2008 race

There are, of course, many ways that the Constitution will be structuring the forthcoming election, including, probably most importantly, the electoral college. This means that "electability" discussions inevitably (and properly, given the EC) focus on the ability to carry states (like Missouri) rather than simply to amass more votes than the opposition. But let me point to two other ways that the Constitution is extremely important:

1) The "natural-born citizen" clause. Does anyone doubt that if naturalized citizens were eligible to become president, then Arnold Schwartzenegger would be running a very active, and powerful, candidacy, probably as a Republican but perhaps as a truly strong independent? Indeed, I have had conversations with some colleagues on whether he would be barred from running for the Vice-presidency on a McCain ticket. The Constitution doesn't clearly say no, and one assumes that McCain would declare, upon choosing S., that he would strongly support a constitutional amendment that would allow S. to succeed to the presidency if circumstances required. I have been very critical of Senate Democrats for not getting behind such an amendment several years ago, when it was introduced by Republican Senator Hatch. They certainly couldn't oppose it this year, when it would properly be viewed as an "anti-immigrant" vote.

2) The vice-presidency. On July 1, 2007, I published a piece in the Boston Globe arguing that we were not well served by the current institution of the vice-presidency (for reasons going well beyond distaste for Dick Cheney). One reason is that presidential candidates of both parties have been tempted to engage in "electoral vote pandering" by picking a state or regional favorite who could conceivably have been thought to be the "best person" equipped to take over should anything happen to the President. My suggestion was that presidential candidates run completely on their own, with the winner then nominating someone to serve as VP, who would be subject to congressional confirmation, as with the current 25th Amendment.

I strongly suspect that John McCain would love such an option, for, unlike Clinton or Obama, who can't really be hurt by their choice of VP, McCain is in something of a pickle. If he rejects Huckabee simply because he's patently unfit to be President, then he alienates Huckabee's supporters and, especially if Obama is the nominee, risks losing some of the presumptively "red states." But, of course, picking Huckabee would doom his candidacy in those states who would not be taken by the further "Christianization" of our national polity. Picking Giuliani would be a disaster with the Huckabee voters, for starters. It would assure that leaders of the religious right, including James Dobson, would stay home in November. And, frankly, it's hard to think of many other Republicans waiting in the wings to be party unifiers. I don't think this is Jeb Bush's year!


Blogger jsalvati said...

Do you think that a political system which to some extent picks candidates based on their ability to be elected in certain states will lead to significantly worse human welfare outcomes? Can you explain your reasoning on this? (I don't necessarily disagree).

February 7, 2008 1:58 PM  
Blogger Brett said...

"The Constitution doesn't clearly say no"

Nobody who wasn't actively seeking to circumvent this provision of the Constitution would interpret the Constitution to permit the President's standby to not meet the same requirements as the President himself.

Is it too much to ask good faith in interpretation of the highest law of the land?

February 9, 2008 7:06 PM  
Blogger Sandy Levinson said...

With regard to jsalvati's question, I'm inclined to believe that "a political system which to some extent picks candidates based on their ability to be elected in CERTAIN states" (emphasis added) is more likely to lead to adverse outcomes than one in which we would at least be able to talk about appeal to the overall majority. This simply underlines the unfortunate influence that "battleground" states play in the process. And the structure of the electoral college (and its non-constitutionally-required winner-take-all feature in all but Maine and Nebraska) makes irrelevant the likely appeal of candidates to presumptive minorities of voters, even if they are quite numerous, as in, say, Texas, California, or New York, because they literally don't count in deciding who is to be president.

I hope this is responsive.

As for Brett's comment, I think that part of the impulse is the belief that the bar to naturalized citizens is pernicious and therefore should be limited to its literal textual semantics. I'm not sure what that doesn't count as "good faith interpretation." That being said, I agree that it probably wouldn't conform to the "spirit" of the bar.

February 11, 2008 10:41 PM  
Blogger Brett said...

Good motives don't equal good faith. I'll take as a given that people who advocate circumventing the native born requirement aren't doing so because they want us to have a President whose loyalties are to a foreign government. I'll even concede that the scenario that requirement is intended to save us from is highly unlikely, and it is keeping any number of otherwise really great potential Presidents from being elected.

But any honest approach to interpreting the Constitution is going to sometimes find that it really, truly means some things which are less than ideal. Because it's NOT an ideal document.

This is not a close question, Sandy: The relevant line from Article II states, "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President" And the 12th amendment states in relevant part, "But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States."

Put 'em together, and only native born citizens are eligible to be VP. There's not an angstrom of wiggle room. The 'literal textual semantics' preclude it.

February 12, 2008 7:16 AM  
Blogger Sandy Levinson said...

I'm extremely embarrassed to say that I had forgotten about the Twelfth Amendment. I looked only at the text of the 1787 Constitution. This is a good lesson to read it all!

Brett is absolutely correct. Schwartzenegger is NOT eligible to serve as VP.

February 12, 2008 9:11 PM  
Blogger Fraud Guy said...

I don't know about the Huckabee choice; I was talking to a Republican who was dispirited about her choice for President, and who stated she would not likely vote for McCain.

Then she asked me, in an excited voice, "but if Huckabee would be vice president, what would you do?" I said run screaming into the night, but I think she was looking for a more positive answer.

February 19, 2008 11:40 PM  
Blogger ckamrath said...

In response to jsalvati's question regarding human welfare, the idea that presidential candidates are more concerned with regional issues and preferences in the battleground states then national issues for the country as a whole is alarming. I find it hard to believe that campaigning that is geared so specifically to a few states can represent a welfare gain for the country as a whole. It is important to keep in mind that the President is intended to serve the entire country, while Senators and Representatives represent state concerns.

As a California resident, it is hard for me to believe that my vote in the primaries or the Presidential election counts for much of anything. Part of the current apathy to American politics is surely rooted in the Electoral College, which leads to non-battleground states being left out of the voting process - our votes essentially do not matter. I believe the highest welfare outcomes cannot be found in a country where so many people don't even come out and vote. Beyond just this campaign, the Electoral College and the battleground states are undermining general interest in politics and this country's welfare.

April 22, 2008 12:10 PM  
Anonymous nkumar said...

The post above has inspired another thought. How do you think media coverage is effected by the Electoral College and the constant desire to map out patterns and predictions? All the attention given to battleground states may be contested by the "forgotten" ones. But I think the citizens of so-called battleground states have reason to complain. It's an issue of identity crisis.

I live in a suburb of Philadelphia and was excited that the state had become meaningful for the Democrat's primary lineup. But after reading all the coverage given to the state's population I feel betrayed.

The electoral college math begs so much for predictable patterns that reporters and politicians alike are quick to generalize their audiences. Pennsylvanians were categorized as bitter, too religious, uncultured, blue collar. Carville's joke about Alabama in the middle of two cities was repeated again and again. What happened to our country's diverse citizeny? What happened to pluralism? Is it inconcievable that someone who is religious may oppose the 2nd amendment or that someone who lives in the middle of PA may prefer Thai food over all others? The electoral college outlined by the Constitution is waging a war on the citizens of the US and their idiosyncracies. EC analysis is about creating patterns and predictable formulas. News coverage mimics: X Candidate can win states A, B, and C because they won state E, and all those states share the same type of people. End of analysis.

I want my identity back. I want to be a Pennsylvanian who has watched the candiates and read what they stand for. I want a political system (and consequently a media) that recognizes that I chose my candidate based on issues and experience rather than which voter bloc I most likely fit.

Aside from the confusion and "undemocratic" consequnces of the EC, I think Professor Levinson may be on to something if only for the electoral college's ability to strip Americans of their intelligence, reasoning, and plurality.

April 26, 2008 4:15 PM  
Blogger Scott Trimble said...

Regardless of the system used, as long as we are selecting a president, we are committing an affront to democracy, as well as endangering the global population. While it may have been completely sensible to invest control of the entire executive in one person in 1787, after World War 2, the United States became a military superpower, and after the fall of the Soviet Union, became the sole superpower. To allow the power to control the military, appoint all senior officers of the executive and any judiciary positions that become available, and veto legislation in such a powerful nation to remain in the hands of any single person is simply foolish.

We must, if we have any concern for "liberty and justice for all" become committed to democracy, by which I mean a participatory and deliberative system of self-government, and if that democracy is to be meaningful at all, we must democratize not only the legislative but also the executive branch.

June 9, 2008 2:07 AM  
Blogger Scott Trimble said...

Specifically, to create a more democratic executive, I suggest we look at a system of selection that incorporates personal choice, random selection, and merit-based selection.

In states with at least twelve congressional seats, as well as those with four, five, eight, nine or ten, districts should be grouped by fours into superdistricts, with any remainders being added on to other superdistricts, so that each superdistrict would consist of four or five districts. States with eleven, seven, six, or fewer than four districts would be combined with other small states to form superdistricts of four or five districts each. This method would produce 99 superdistricts.

Each superdistrict would select four citizens at random, creating a total body of 396 citizens to participate in the Executive Council selection process. They would be divided randomly then into 36 panels of 11 members each. 12 panels would be designated as screening panels, 12 would be for nominating, and 12 would be for confirming.

Once the panels were constituted, they would begin accepting applications from all persons wishing to apply to participate as a member of any four-member Secretariat of one of the executive departments, and all other positions in the executive branch requiring such appointment.
The workload would be divided approximately equally between the various panels. The screening panels would eliminate all but ten applicants for each Secretariat position. Then the nominating panels would rank those ten in order of preference. The confirmation panels would then interview the applicants in order of their preference, and the first four confirmed would be appointed to the various Secretariat positions.

Each Secretariat member would sit on the Executive Council (roughly equivalent to today's Cabinet) for one year of their four year term. One member of the Executive Council would be selected as president for one month, but would have much more limited powers than our current president, being little more than presiding officer over Council meetings. The Council would also select a vice president, who would serve in the president's absence, and would become president of the council the next month. Each month, they would select a new vice president as the previous one assumed the role of president.

Using the same random selection process based on superdistricts, we would also select 396 other citizens to serve on the Executive Review Board. They would be divided up into specific oversight committees. Either these committees or Congressional oversight committees could initiate proceedings to remove any member of the Secretariat for criminality or failure to perform the duties or abide by the oath of office.

June 9, 2008 5:53 AM  

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