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How Can We Fix the Constitution?

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The Fast-Track Presidency

Why is it so complicated to move up the date of Inauguration Day?

US President Barack Obama.
Why wait until Jan. 20?

Timothy A. Clary/Getty Images.

Over the next few weeks, some of Slate’s favorite legal eagles are proposing their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here are proposals about the right to trial by jury, protecting informational privacy, amending the Constitution by national referendum, and electing the attorney general.

Presidential Inauguration (Amendments XII and XX)

Many years ago, Russell Baker offered a distinction between “seriousness” and “seriosity.”  The latter requires writing about important subjects in a ponderous tone; the former welcomes wit, ridicule, and savage satire.  Kevin Bleyer has written a model example of a thoroughly serious book, in a tone of maximum non-seriosity.  But no one should doubt that he has identified a genuine problem:  We live under a national Constitution that is remarkably unchanged, with regard to basic structures, since it was drafted in the hot Philadelphia summer of 1787.   

I have now written two books bemoaning the inadequacies of the national Constitution.  In a recent New York Times op-ed, I focused on what I think is its worst single feature –Article V itself, the Amending Clause.  What else can we fix? I’ll focus here on the delay in inaugurating new presidents until Jan. 20, even if they were elected without incident 11 weeks earlier.  It may sound like small potatoes, but it captures very well the problems posed even by what might seem like a relatively minor feature. 

It could be worse.  One of my favorite amendments is the 20th Amendment, which in 1933 shifted Inauguration Day, beginning in 1937, from March 4 to Jan. 20. FDR was therefore the last president to wait almost four full months to take the reins of office, after we had, in effect, no functioning government during the 1932-33 winter of the Great Depression.  A repudiated president has little or no political authority to make necessary decisions, while the incoming president, who may have tons of political authority, has not an iota of legal authority.   Moreover, the delay in inauguration contributes to making the new president-elect a near monarch, by creating “the transition,” in which we breathlessly wait to find out whom our new maximum leader will choose for his Cabinet. It would be far better if the last month of the campaign included significant discussion of at least short lists for these offices.  The 20th Amendment is an inspiration because it showed that serious people were willing to think deeply about structural flaws and to try to alleviate them.  (The amendment also limited the reality of lame-duck Congresses by moving up the date on which newly elected members of Congress take office on Jan.y 3.)  

My friend Akhil Reed Amar agrees that the hiatus between election and inauguration is problematic,but he optimistically offers a clever fix that would require no amendment.  All that has to happen is that selfless incumbents resign their offices early and take advantage of the 25th Amendment procedures to pave the way for an early takeover by the elections’ winners.  Akhil is terribly mistaken to rely on the goodwill of politicians.  It is significant that James Madison emphasized that “enlightened statesmen will not always be at the helm.” A constitution must be designed for distinctly unenlightened, hyper-ambitious, often ideological, politicians.  Or, to paraphrase Donald Rumsfeld, we must design a constitution for the people (and “leaders”) we have, not for the ones we wish we had. How many readers, for example, would welcome President Obama’s announcement that if Mitt Romney wins the election (perhaps by a slender majority in the electoral college while losing the popular vote), Joe Biden will resign the following day, followed by Obama’s nomination of Romney to be the new vice president (who would have to confirmed by both houses of Congress, under the 25th Amendment), and then, upon Romney’s confirmation, Obama himself would promptly resign? 

Amar’s proposal, and mine, also run into the Electoral College.  It takes time—weeks—for the electors to meet and then for Congress, upon convening, formally to count the votes and declare that we have indeed elected a new president. So, as a practical matter, moving up the date of inauguration requires that we wrestle with the Electoral College as well—and ideally, eliminate it. This is also a good idea given its capacity for mischief. The shifts of relatively few votes in California or Illinois in 1948 and 1968 would have produced a deadlock in the Electoral College, in elections that included racist third-party candidates (South Carolina Gov. Strom Thurmond and Alabama’s Gov.r George C. Wallace), each of whom carried a number of Southern states.  It could happen again, with actual deadlock this time, and then the whole nation would wait for weeks for electors first to meet and then for the House of Representatives  to pick a president from among the three top vote-getters, as required by the 12th Amendment.  The Senate, in turn, would pick a vice president from the top two candidates for that office. (The Twelfth Amendment constituted an important change from the original Constitution in both respects.)

Getting rid of the Electoral College, in turn, means confronting the question of how exactly we should elect our presidents.  I favor popular election, but I also favor emulating the French (or the state of Georgia) by rejecting a single-ballot system that names the first-place finisher as the winner, even if she has not commanded majority support, and instead adopting a run-off system.  And, incidentally, I would not elect the vice president at the same time, to eliminate the perverse incentive for presidential candidates to ignore actual fitness to serve as president in favor of opportunistic considerations about “balancing the ticket” or whatever. 

So, finally, my proposed amendment, motivated by the simple desire to change Inauguration Day, would be as follows:

The president shall be chosen in an election open to all qualified voters within the United States. Should no candidate receive an absolute majority of those casting ballots, a run-off will be held between the top two candidates within two weeks of the initial ballot. He or she shall take office two weeks after Congress in joint session declares that a candidate has achieved majority approval. The new president, upon taking office, shall nominate someone to serve as vice president of the United States, who shall take office upon being confirmed by majority vote of both Houses of Congress, meeting in joint session.

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