A Note on Vetoes

Sat Dec 22 19:06:17 PST 2007

maybe we should think aspirationally and write a constitution for a 
world without war.
ridiculous, huh?

Daniel Hoffman

Robert Sheridan wrote:

> Whether bicameralism or veto, the net result of these and other 
> obstacles is that neither side in the polarized political world that 
> is America today can pull the country its way for long (one may hope, 
> whistling past the graveyard.
>
> Can you imagine the damage if any of the various manias with which 
> this country is afflicted were allowed to dig themselves in 
> permanently, apart from the ones that already have?
>
> I hope it's not too late and that we can look forward with confidence 
> to genuine democratic elections in the near future, although I must 
> admit that if we have difficulty trusting politicians we should have 
> even more difficulty trusting the voters who put them in positions 
> where they can do harm.
>
> We have met the enemy and we're still having difficulty dealing with 
> ourselves.
>
> On a more-or-less different point entirely, Richard Rhodes, who writes 
> about the difficulties of the nuclear age in his new book, "The 
> Arsenals of Folly," (Knopf, 2007), suggests a new locus of 
> sovereignty, apart from the ones we've all read about:  the monarch in 
> a monarchy, Parliament in Britain (as I understand it), and the people 
> (here, allegedly). 
>
> In discussing the fall of the Soviet Union into its constituent 
> republics, Rhodes suggests that sovereignty lay in which new national 
> leader (of Russia, Ukraine, Kazakhstan, Byelorus, or the Baltic 
> States, etc.) succeeded in obtaining control of the suitcase (or 
> football, in our parlance) containing the triggering codes for 
> launching nuclear missiles located in various of these republics. 
>  That leader was Boris Yeltsin, succeeded by his nominee Vladimir 
> Putin, who 'Time' now labels 'Tsar.'
>
> The reason for the 'more-or-less' qualification, above, is that the 42 
> year period  of the Cold War (1949-1991) marked a time when a certain 
> mania seemed to overwhelm both sides to that conflict, namely that 
> each side (mistakenly, if you believe the evidence cited by Rhodes) 
> believed that the other was intent on taking the first nuclear shot, 
> given the chance, and no amount of argument or evidence could persuade 
> either side differently.  Hence MAD.
>
> The inability of our crazies, and theirs, to take that shot, speaks 
> well of the fact that it is exceedingly difficult to pull this country 
> too far off course, whatever that course may happen to be. 
>
> MacArthur, as I recall, wanted permission to take that shot across the 
> Yalu River on Korea's northern border, to China, which Truman, who had 
> some nuclear experience and who may not have enjoyed it as much as his 
> confidence suggested, declined to grant, recalling the general to much 
> local-in-time consternation.
>
> rs
> sfls
>
> On Dec 22, 2007, at 2:56 PM, guayiya wrote:
>
>> Those who wish it were easier to legislate would do well to focus on 
>> an obstacle far greater than the veto: bicameralism.
>> Daniel Hoffman
>>
>> Mark Graber wrote:
>>
>>>An historical note on vetoes, which may be worth nothing.
>>>
>>>1. The most sustained use of the veto as a policy instrument may be the use by Jacksonian presidents from 1832 to 1860 to prevent internal improvements and the national bank.  Who was right on this one is still a matter of historical controversy.
>>>
>>>2. The most political controversial were Johnson's vetoes of Civil Rights measures.  Whether you should base anything on this might be called into doubt.  Johnson, after all, was an accidental president, who was actually of a different political party.  This is, of course, a risk our system runs, but I would not base a constitution on this.
>>>
>>>3. The executive veto has become far more prominent in the era of near permanent divided government.  For the most part during this period, Republicans and Democrats got about the same combined number of votes (if you add presidential and congressional votes--no doubt I am off by a percentage or two).
>>>
>>>4. My sense of the universe is that the veto is another instrument that makes legislation more difficulty.  The best reason for bding opposed to the thing is that 21st century governments should be able to legislative more easily and more radically than can government in the United States.
>>>
>>>Mark A. Graber
>>>
>>>
>>>
>>>  
>>>
>>>>>>"Sanford Levinson" <SLevinson at law.utexas.edu> 12/22/07 5:24 PM >>>
>>>>>>        
>>>>>>
>>>Bobby asks a good question (of course).  It's true that I am somewhat
>>>disdainful of the bona fides of the President because of the
>>>circumstances of election through the electoral college--and I'm quite
>>>willing to set aside, at least for the moment, Bush v. Gore in favor of
>>>the more fundamental fact that we so regularly bring to the White House
>>>presidents who lack demonstrable majority support.  (The clearest
>>>examples in the post-War era are Nixon (1968) and Clinton (1992), both
>>>of whom received approximately 43% of the popular vote.)  But even if
>>>we're talking about people with majority support, and even if we
>>>recognize the reality of the institutionalized presidency, it still
>>>boils down to the fact that a single individual, self-described "Great
>>>Decider" or not, can countermand the more-or-less deliberate judgment of
>>>majorities, sometimes fairly hefty ones, of both the House and the
>>>Senate.  Even if one admits, as I indeed emphasize, that each member of
>>>Congress is quite parochial, because of constituency interests, I'm
>>>willing to defend the proposition that bills that can pass both houses
>>>are at least as likely to represent some (perhaps mythic "national
>>>interest") as the views of a single individual.  Cass Sunstein's
>>>forthcoming book discusses the virtues of group decisionmaking in the
>>>context of the Concorcet theorem.  I know there are problems with the
>>>direct analogy, but I'm tempted by the argument that even if the
>>>President, for some reason or another, is likely to be wiser and more
>>>discerning of the national interest than any given member of Congress,
>>>it doesn't follow at all that the President, unless one imputes almost
>>>literally God-like omnisceience, is likely to be wiser than the
>>>collective wisdom of Congress.  
>>> 
>>>And, as I hope I've made clear, for all of my rantings about the
>>>iniquities of the Bush Administration, my arguments are designed to
>>>apply to future presidents, including ones that I like considerably
>>>more.  I see no good reason why a President Obama or Clinton should be
>>>able to countermand a Republican Congress, other than my own partisan
>>>preferences, which isn't a good enough argument.  The only really
>>>"principled" argument in favor of the policy-based veto (for we're not
>>>talking right now about Constitution-based vetoes based on the
>>>President's duty to enforce the Constitution) is a general aversion to
>>>legislation and the belief that anything that lessens the amount of
>>>legislation is a good thing, let the chips fall where they may.  I can
>>>understand the argument, but I disagree with its premise.
>>> 
>>>sandy
>>>
>>>________________________________
>>>
>>>From: conlawprof-bounces at lists.ucla.edu
>>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
>>>Sent: Saturday, December 22, 2007 3:22 PM
>>>To: CONLAWPROF at lists.ucla.edu
>>>Subject: Re: Levinson on Bill Moyers' Journal
>>>
>>>
>>>        When I first read the book I was skeptical about his argument
>>>casting the presidential veto as undemocratic. Last night's interview
>>>cured my skepticism to some degree.  I still have a question though: Is
>>>Sandy's quarrel with the presidential veto based primarily on input
>>>issues--how the president is selected--or output issues--how one person,
>>>even a democratically accountable person (at least in his or her first
>>>term) can overturn legislation or be "bought" by special interests? Or
>>>both? Alternatively stated, if the electoral college was eliminated and
>>>presidents were selected through direct elections, would that at least
>>>reduce the undemocratic dimension surrounding the veto or is the bulk of
>>>the argument against the veto about what the president does--however
>>>elected--once office. 
>>> 
>>>Bobby
>>>      
>>>Robert Justin Lipkin
>>>Professor of Law
>>>Widener University School of Law
>>>Delaware
>>>
>>>Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
>>><http://ratiojuris.blogspot.com/> 
>>>Essentially Contested America, Editor-In-Chief
>>>http://www.essentiallycontestedamerica.org/
>>>
>>>
>>>
>>>________________________________
>>>
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>>>
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>>>
>>>
>>>  
>>>
>> <guayiya.vcf>_______________________________________________
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>> <mailto:Conlawprof at lists.ucla.edu>
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>>
>> Please note that messages sent to this large list cannot be viewed as 
>> private.  Anyone can subscribe to the list and read messages that are 
>> posted; people can read the Web archives; and list members can 
>> (rightly or wrongly) forward the messages to others.
>
>
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