How to watch Levinson on Bill Moyers' Journal

michael curtis curtism at
Sun Dec 23 07:33:35 PST 2007

If you missed Sandy's interview on Moyers and want to watch it, you can watch it on your computer by going to Bill Moyers Journal and clicking on that program.  You can also watch a number of his other programs there-- the amazing Buying the War (on the media into the runup to the attack on Iraq), etc.

Michael Curtis
  ----- Original Message ----- 
  From: Sanford Levinson 
  To: RJLipkin at ; CONLAWPROF at 
  Sent: Saturday, December 22, 2007 5:24 PM
  Subject: RE: Levinson on Bill Moyers' Journal

  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.


  From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of RJLipkin at
  Sent: Saturday, December 22, 2007 3:22 PM
  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. 

  Robert Justin Lipkin
  Professor of Law
  Widener University School of Law

  Ratio Juris, Contributor:
  Essentially Contested America, Editor-In-Chief

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