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January 12, 2007

the president and the Constitution

One letter in today's New York Times says: "More than 20,000 additional troops are being put in harm's way on the say-so of one man. Isn't that more characteristic of a dictatorship than a democracy?" Another writer asks, "Are we totally helpless against this man who seems more like an arrogant, power-hungry dictator than a president?" Meanwhile, over at Balkinization, Prof. Sandy Levinson has been arguing that the Constitution is flawed--for many reasons, but in particular because it provides no means to remove the "catastophic" President Bush before his term ends.

I'm against the escalation and regard the current war as a fiasco. But I don't think we have a dictator, nor should we rush to amend the Constitution.

We elected the president who launched the Iraq war and the Congress that authorized it. The president was reelected in 2004 because he was an incumbent in the middle of a war and the opposition failed to make a persuasive case for change. Most voters then gradually lost faith in the war and ultimately elected a new Congress that no longer has a pro-war majority. This Congress could block the escalation; it could even end the war. It will certainly exercise more oversight. But at this moment it is divided on whether to end the war quickly, as are the American people.

In short, the president does not control the political machinery. Congress has at least as much clout; it simply isn't sure whether to use it. The American people have the right and capacity to apply pressure through protests and advocacy; most are not doing so. Thus the president is not a "great opposeless will," a dictator. He is still making the short-run decisions because his opponents have calculated that they would prefer to let him do so than to take the heat for blocking him.

Our government is designed to respond to public opinion, but at a deliberate pace. For example, the bicameral legislature and the filibuster rule in the Senate slow the rate of change, and they are making it difficult for the Democrats to pass legislation to block the "surge." Right now, the pace is frustrating. But those safeguards were valuable in the immediate aftermath of 9/11, when I fear that majorities wanted to take even more drastic and aggressive action.

Jack Balkin recommends a new check on the president: a vote of no confidence. George W. Bush would lose such a vote--if not now, then soon. But I suspect that LBJ, Carter, Reagan (after Iran-Contra), and Clinton also would have faced serious efforts to remove them before the ends of their terms. That's five of the last seven presidents--the others being Ford and George H. W. Bush, who were defeated for reelection. I doubt we'd be better off with an executive so severely weakened.

January 12, 2007 2:51 PM | category: none


ALthough Levinson and Balkin are two of the most creative thinkers about constitutional culture and "frames of mind", I do not yet follow their insistence that we "take Bush out now." A constitutional culture that worships its documents might induce bloodshed (a la US Civil War and Lebanon's ethnically sliced government based on a 1930 census and compromise), but a sectarian, non-covenanted polity can lead to bloodshed, too. Perhaps Iraq today is a the essential example.

So how much Constitution-worship do we want, and what are the levers and timeframes? I think these shift (sectarian to covenanted) are _generational_ shifts and are always at risk of returning to before the social contract. Each of these scholar has written great books on this topic!!

I posit that Rousseau's troublesome "general will" looms over Balkin and Levinson's partisan desires for the Constitution. Since no one really understands this "general will", perhaps because it is so general, these authors seem to miss the two major goals of a constitution -- restraint and deliberation!!

January 17, 2007 7:16 PM | Comments (1) | posted by Scott D

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