Constitutionally Resignable Offenses

[rjlipkin at aol.com]

    In the first instance, I'd prefer formal mechanisms of censure, reprimand, impeachment and removal, and so forth.  But only if they can be made "effective."  I'm wary of the fillibuster or shutting down the government, and don't think they would play well politically.  "Oh those democrats (minority party), playing obstructionists again."  But I'm not ruling out, in my own mind, Elizabeth's suggestions.
 
    While a little revolution is good once and awhile (Oh, I guess that's be said before), I'm looking for nonrevolutionary ways for the electorate and the people to play a greater role in the ordinary castigation (and correction) of the government whatever that might mean in particular cases. Certainly, the devastation in New Orleans and the Gulf Coast would qualify as such a case. Sure,any such mechanisms will permit demagogues to exploit them for crass political purposes.  But a properly created and nourished democratic culture may prevent the frequency of such exploitation. At any rate, we will never be in a position to try to move democratic culture in that direction unless we take chances, and one of those chances is to create mechanisms of correcting the government other than merely voting every two to four years, and then decide what means are necessary to prevent exploitation.  We cannot try to devise ways to prevent exploitation and then create the mechanisms for g!
 reater involvement of the electorate and the people.  The founding generation tried that, and, in my view, it failed.
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
 
 
-----Original Message-----
From: Elizabeth Dale <edale1 at bellsouth.net>
To: RJLipkin at aol.com; crossf at mail.utexas.edu; CONLAWPROF at lists.ucla.edu
Sent: Tue, 6 Sep 2005 07:59:56 -0400
Subject: RE: Constitutionally Resignable Offenses


This seems right to me, though I might add that there should be constitutional ways to check the power of governments that have failed in some way short of forcing a resignation. I suppose one possible means of doing this is a generic fillibuster: rather than fillibustering this person or that bill, Congress could say we will fillibuster all but the most essential bills (we'll pass hurricane disaster relief, but we won't vote on a Supreme Court nominee, we'll pass something for the war, but not a tax cut, we'll pass a tax cut but not federal funding for rebuilding, whatever), and use the fillibuster as a running vote of no confidence.
 
More extreme, I suppose Congress could shut down the government. That is, after all, more or less what happened to Clinton.  I suppose another, more modest way that Congress could express its lack of confidence in a president might be to take initiative in passing bills, in an effort to wrestle the agenda from the White House. (Which also, arguably, happened to Clinton.)
 
I assume there are other options out there that are both Constitutional, in the sense of being not prohibitted by the document, and constitutional, in the sense of being consistent with the fundamental premise that government exists to protect the people and a government that fails to do so is a failed government. But maybe not. Is the absence of a good means of dealing with a failed government a reminder that if we ever hit that point where government fails the people, we have reached what we might call the Declaration of Independence moment, and we have to revolt, or secede, or shut up?
 
I'm not advocating revolution or secession, now or as a general principle. But it seems to me that we have a constitutional conundrum on our hands, in the abstract if not actually at this precise moment (I leave the question of reaction to this precise moment to everyone to decide individually). We have a democratic, or quasi-democratic system, which should mean there are democratic checks and stops in place to deal with failed government. But we don't seem to be very aware of what those checks or stops are, or to have given them much thought. 
 
In the grand scheme of things, I am not convinced parliamentary democracy is best, but I am somewhat concerned about how sclerotic our system has become. And how limited our thinking about it has become. 
 
 
Elizabeth Dale 
Associate Professor, US Legal History, Department of History, 
Affiliate Professor of Legal History, Levin College of Law 
University of Florida 
PO Box 17320 
Gainesville, Florida 32611 
edale at history.ufl.edu 
http://plaza.ufl.edu/edale 
352-393-0271 ex 262 
 




From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Tuesday, September 06, 2005 6:37 AM
To: crossf at mail.utexas.edu; CONLAWPROF at lists.ucla.edu
Subject: Re: Constitutionally Resignable Offenses


In a message dated 9/5/2005 10:51:50 PM Eastern Standard Time, crossf at mail.utexas.edu writes:
However, I'm not sure such resignations are a good thing.  Nixon did resign, in extremis, and I'm not sure it makes sense to demand resignations short of such extremis.  One particular failure, even incompetence, doesn't really prove that a person shouldn't hold the job.  And as I recall, Kissinger was famous for repeatedly offering resignation as leverage. 

        I think a proper focus is needed here. Whether or not resignations are a good thing, it seems a constitutional democracy should have a relatively effective means of either formally recommending the official to resign or a mechanism to remove the official from office. (Impeachment and removal from office, of course, cannot seriously count as "relatively effective.") Unless, one believes that a constitutional democracy is merely a process by which the government consults the electorate every two to four years, a more direct means of removal is required. Constitutional democracy should, in my view, be made of sterner stuff. An ordinary mechanism of censure, reprimand, and recall should be part of the process.  Sure, such a mechanism can be used improperly for crass political reasons.  But that's the risk one takes in a constitutional democracy.  If we can't stand the people or their politics, we should get out of democracy.
 
Bobby
 
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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