Our dubious Constitution (continued)

Sanford Levinson SLevinson at law.utexas.edu
Fri Mar 17 13:20:46 PST 2006

For what it's worth, I think it may be very unfair to classify Harold
Macmillan as a "mediocrity."  John Major was certainly less splashy than
Lady Thatcher, but I share the view that he was a person of substance
(who did, after all, lead his party to re-election, and no Tory has won
since).  Thatcher was displaced for excellent reasons, unless one indeed
has a taste for dictatorship; however shart she undoubtedly is, she had
become a serious outlier with regard to general public opinion and would
undoubtedly have been sharply repudiated in the next election (as,
recall, Winston Churchill was in 1945, a sound decision by the Brits
that he was far better at fighting a war than responding to hum-drum
domestic exigencies).  We could, of course, add Churchill's replacement
of Chamberlain to the list, since that, too, came without an election.
I presume that no one on this list would object to Chamberlain's being


-----Original Message-----
From: isomin at gmu.edu [mailto:isomin at gmu.edu] 
Sent: Friday, March 17, 2006 3:08 PM
To: Sanford Levinson
Cc: Bob Sheridan; Miguel Schor; DavidEBernstein at aol.com;
CONLAWPROF at lists.ucla.edu; Mark.Scarberry at pepperdine.edu
Subject: Re: RE: Our dubious Constitution (continued)

One further point on the costs and benefits of replacing the executive
in midterm:

A key question is: Are there any generalizable reasons to expect that
executives replaced in midterm will be replaced by  mediocrities such as
Macmillan and Major (and possibly President Ford). 

Unfortunately, I think the answer here is "yes." An executive is only
likely to be removed in midterm after a bruising and divisive political
battle, usually including internal divisions within his own party. After
such a battle, political elites within the party and outside it are
likely to settle on a lowest common denominater leader as a replacement.
The new leader's principal virtue is likely to be the fact that no one
strongly opposes him. Obviously, anyone who is forceful and highly
competent is unlikely to fall in this category. 

Thus, there is good reason to expect that a leader removed in midterm
will be replaced by a mediocrity. That doesn't mean that we should never
engage in such replacement (in my view, getting rid of Nixon was worth
it, for example). But it does suggest that replacement should be
difficult enough to ensure that it will only occur in cases where the
incumbent is so bad that even a dubiously competent mediocrity will be

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/

----- Original Message -----
From: Sanford Levinson <SLevinson at law.utexas.edu>
Date: Friday, March 17, 2006 3:18 pm
Subject: RE: Our dubious Constitution (continued)

> -----Original Message-----
> From: Bob Sheridan [mailto:bobsheridan at earthlink.net]
> Sent: Friday, March 17, 2006 1:15 PM
> To: Sanford Levinson
> Cc: Miguel Schor; isomin at gmu.edu; DavidEBernstein at aol.com; 
> CONLAWPROF at lists.ucla.edu; Mark.Scarberry at pepperdine.edu
> Subject: Re: Our dubious Constitution (continued) Bob Sheridan writes;
> There's a difference between a corporation, or a baseball team, or a 
> treating physician, or an airline, and the presidency of the U.S.
> All of the former are under the much more immediately available 
> controlof their respective boards, employers, shareholders, etc., and 
> can be readily hauled into court for rules violations.
> It is much more difficult and disruptive to the country to impeach or 
> otherwise replace a president.
> No doubt this is correct, but the question is why do countries around 
> the world successfully replace prime ministers (again, I mention 
> Thatcher's being bounced and replaced by Major or Anthony Eden being 
> fired after Suez, replaced by Macmillan, to take only two English 
> examples)?  What I was suggesting with my questions was a version of 
> the famous Learned Hand formula in which we multiply the costs of an 
> incompetent president (which seem to me higher than the costs of an 
> error-prone surgeon etc.) by the costs of mid-term replacement (which 
> would admittedly be high).  But why do we systematically underestimate

> the costs of being governed for several years by an incompetent?
> sandy

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