by Sanford Levinson

One of the ill-concealed subtexts of my book Our Undemocratic Constitution is that my colleagues in the legal academy pay much too much attention to the rights-conferring parts of the Constitution (which are often exactly what Madison predicted they would be, "parchment barriers" that are all too permeable given the right degree of public panic and malleable judges) and too little attention to the "hard-wired" structural features that, I now believe, explain much more about the actualities of American politics than do the clauses that law professors fixate on. A good, if usually minor, example, is the Seventeenth Amendment, much in the news recently because of Senator Tim Johnson's (D-SD) illness. The initial AP story suggested that he might be replaced temporarily if he was likely to be incapacitated for a significant length of time. (Note the non-subjunctive, because, though no M.D., I suspect that he will in fact turn out to meet that condition.) Wrong. The amendment speaks of a "vacancy," and that has been interpreted since its ratification in 1913 to mean death or resignation. Incidentally, the same was true of the presidency, which is why we suffered through the last two years of the so-called Wilson presidency, when by almost all accounts, the megalomaniacal Wilson (who was, in personality, I am increasingly convinced, much like George W. Bush) was patently unfit to hold his office following his stroke. The Twenty-fifth Amendment ostensibly cured that problem by providing a mechanism for the displacement of a physically or mentally debilitated president, but it has yet to be shown that it will really work, and there is some reason to believe that it was shamelessly ignored during the second term of the Reagan presidency, when insiders surely suspected the onset of the Alzheimer's. (Power corrupts, and, as John Roche so memorably put it, the prospect of losing power corrupts absolutely.) But I digress... So South Dakota Governor Mike Rounds, a Republican, will have the opportunity to fill the seat only if a genuine "vacancy" occurs. It is overdetermined that most readers of The New Republic wish Senator Johnson a long and happy life. But that shouldn't stop us from realizing that the amendment is just another example of our badly drafted Constitution that ill-serves us: 1) Begin with the AP story's mistake. It makes perfectly good sense to think that the vacancy will be filled, on a temporary basis, should the prognosis be for extended absence from the Senate. West Virginia's Jay Rockefeller, a Democrat, apparently was gone for three months recently recovering from a back operation. If West Virginia did not sufffer from that absence, then that suggests something quite unflattering about the senator. Ditto for Republican Karl Mundt, a Republican from South Dakota, who was functionally non compos mentis following a stroke in the last two years of his term in 1970-72. Senators aren't so important as the president (whatever they may think), but it would still be desirable always to have a Senate seat filled, especially when the chamber is closely divided and it might actually matter who is available to vote. There is an obvious problem, though, with allowing the governor free discretion in choosing a replacement, whether temporarily or permamently, which is precisely the temptation, almost always exercised, to pick someone from the governor's own party instead of the senator's. As a mattter of fact, five states have tied their governors' hands in this regard, and one might think it would be desirable if such a requirement were universal. (There were mutterings a couple of years ago about the possibility that the Democratic South Carolina governor would pick a Democrat to replace Strom Thurmond if he died mid-term, but, for better or worse, that possibility did not eventuate. There were also a lot of stories in Massachusetts about Mitt Romney's getting to pick John Kerry's replacement should Kerry have won the preisdency.) As should be obvious, it's not at all clear that there is a partisan position on this issue: Both Democrats and Republicans would be winners or losers over time. What would become impossible is the shift in control of the Senate because of the vagaries of senatorial deaths and the party identity of the appointing governor. It's hard to think of a principled defense of giving the governor, elected though he or she may be, complete discretion over this appointment (as against, say, picking the replacement from a list of three offered by the State Committee of the senator's political party or, for that matter, from a list of three submited, in a sealed letter, by the senator at the time of his/her election, to be opened only in the event that a "vacancy," however defined, occurs). 2) Governors also get to fill the vacancy until the next scheduled election, which can obviously be as long as almost two-years away. Yet vacancies in the House of Representatives are filled within an average of 116 days, which is obviously less than four months. So why shouldn't be states be required to hold "special elections" to fill senatorial vacancies unless the regular election is no more than six-months away? The Constitution requires that all members of the House be elected (which creates potential problems in the case of mass vacancies resulting from a catastrophic attack, which can be the subject of a separate posting); there is obviously no such requirement for the Senate. But surely the principle is a good one. The only plausible argument against requiring such special elections is that they are too expensive, especially in a large state. But if one really cares about this, it would be possible to put spending caps on special elections or engage in some other creative thinking as an alternative to giving the governor carte blanche. 3) The Seventeenth Amendment, of course, was the result of almost 100 years of criticism of having senators chosen by legislatures instead of by popular vote. But consider that at the beginning of our history presidential electors were also often chosen by state legislatures. The last such choice was by Colorado in 1876. I am confident that by 1913 no one imagined that a state legislature would dare to invoke its legal power and take away the power of selection from the electorate. But this was, of course, just what was suggested by a number of Republicans in December 2000, and serious lawyers, some of them from the Harvard Law School, were prepared to justify such a coup by the Republican Florida legislature, based on the text of Article II of the Constitution. My own view at the time was that it would be reasonablel to read the Seventeenth Amendment, though apparently only about choosing senators, as having "penumbras and emanations" that would cover presidential electors as well, but this is obviously highly controversial. Were we drafting a better Seventeenth Amendment for our own time, we should surely fix this glitch as well and make impossible even the suggestion that a state legisalture could choose electors save in extraordinarily exceptional circumstances. Many issues of "constitutional design" may appear boring, worthy of being discussed only in seventh-grade civics courses, until, of course, we become aware of the implications of their features and wonder why we didn't take anticipatory measures to guard against their dysfunctional aspects. As dysfunctionalities go, the Seventeenth Amendment doesn't come close to equal voting power in the Senate, the Electoral College, etc., but it is still worth pondering whether the 1913 Framers couldn't have done a better job or whethe we, almost 100 years later, might not think of a constitutional "tune up" (that, in this case, would definitely not require a constitutional convention) that would give us a better Constitution.