OPEN UNIVERSITY SEPTEMBER 6, 2006
by Sanford LevinsonI note the important development that in the UK seven junior ministers have resigned in protest over Tony Blair's refusal to indicate a date certain (and fairly soon) by which he will step down. Blair's resignation, whether voluntary or forced, would not force new elections or a transfer of power to the Tories. Rather, a leader viewed, rightly or wrongly, as widely discredited (as was Margaret Thatcher in 1990), simply leaves office, to be succeeded by a fellow party member (as Thatcher was succeeded by John Major, who won the next election).
It goes without saying that such a sensible transfer of power is impossible in the United States, the reason being our Constitution, which operates under a rigidly fixed-term presidency that invites occupants of the White House to view themselves as functional equivalents of pre-Revolutionary French officials, many of whom had a property right to their office. We can, of course, get rid of criminal presidents, but not, apparently, of merely grossly incompetent ones. This, I believe, is a profound weakness of our Constitution. Even if the reservation of impeachment to "high crimes and misdemeanors" made sense in 1787, it makes no sense today, when the office of the presidency is more important than any Framer could conceivably have fathomed. (In retrospect, the vigorous defenders of President Clinton in 1998 might have served him well, but ultimately, I think, disserved the country by reinforcing the sense of entitlement of a president to the office.)
My own preference would be for a procedure by which 2/3 of Congress, voting together and not bicamerally, could declare "no confidence" in the president and therefore force a replacement. If the no confidence is based on personal indiscretions (think of Bill Clinton), then it would be no problem to have the vice president succeed to office. If, on the other hand, the "no conidence" is based more on policies, then succession by the vice president would be pointless (or, as in the present situation, worse), and it would be desirable either to force new elections (in which the discredited president, unlike the victim of a California recall, could run and make his or her case to the people), or, as in the UK, have the political party from which the president comes choose a successor.
In any event, it is long past time to confront the ways in which the Constitution operates to meance American democracy as well as to enable it. We do not, in this country, have a "culture of resignation" similar to the British practice. But perhaps that is because a resigning official believes that something might actually eventuate from the gesture. In this country, we have a quite different "culture of resignation," which is to resign oneself to the fact that nothing can be done even if we are governed by blithering and mendacious incompetents, at least until January 20, 2009, when, one hopes, we will finally be rid of George W. Bush.