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Matt Yglesias (and The Atlantic) on constitutional reform

By Jack M. Balkin

The July issue of The Atlantic (not hyperlinkable yet) includes an "ideas" section in which Matt Yglesias calls upon us, altogether sensibly to "end the vice presidency." He says that "the office is at best worthless and at worst a threat to the republic." I doubt that the first is true; on occasion, we've probably received a net positive contribution from particular vice presidents (I suspect that Al Gore is most obviously in that category among modern VPs). Still, Yglesias's argument, even if a bit hyperbolic, is correct. His suggested solution with regard to having a designated successor is basically to return to the old Succession in Office Act, by which the Secretary of State would succeed in case of vacancy. My own preference is that the position be filled after the election by presidential nomination and congressional confirmation (a la the 25th Amendment), with the key caveat that the VP would hold office subject to being dismissed either by the President or by Congress (upon a 2/3 vote) if either comes to the conclusion, for whatever reason, that he/she isn't really the person they have sufficient trust to wish to succeed to the Oval Office. (This would indirectly solve the problem of a debilitated VP, who, astonishingly enough, becomes subject to the structure established by the 25th Amendmentn only upon succession to the presidency.)

Incidentally, the successorship issue is part of the current follies in New York State, where the almost certainly corrupt Democratic turncoat, currently under multiple investigations, will, as President of the Senate, the office he was promised by Republicans in order to seize control of that body, become governor should David Patterson even take a trip to New Jersey or Connecticut. The Times suggested that one possibility as "governor for the day" is that Espada might even use his new gubernatorial power to issue himself an advance pardon for his depradations and, while he is at it, perhaps issue a similar pardon to his fellow turncoat Sen. Monseratte, currently under (state) indictment for allegedly slashing his girlfriend with a broken glass. Just to underscore, though, in remarkable complexity of politics, Sen. Espada is also one of the principal backers of gay- and lesbian-marriage in New York, and if the rebellion sticks, it may well bring about the welcome result, the joining of New York with the New England states, save Rhode Island, is legalizing such marriagges. Ironically or not, the former Democratic "leader" of the Senate, Malcolm Smith, seemed resolutely averse to bringing the bill up for a vote. It is sometimes very difficult to figure out which team to root for!

In any event, Mr. Yglesias should be contratulated for raising the possiblity of constitutional reform. And, incidentally, this is on top of Garrett Epps' excellent article in the February issue of The Atlantic describing as one of the "founders' mistakes" the office of the presidency itself. So perhaps The Atlantic is, slowly but surely, moving to connect a bunch of dots....

Full post as published by Balkinization on June 12, 2009 (boomark / email).