diary as originally posted was truncated, now complete
I am not a lawyer. I do teach government (including Advanced Placement) to high school students. As a result I spend a great deal of time with the Constitution.
I tend to be skeptical of most proposed changes to our basic governing document.I certainly opposed the idea of for only the second time (after the 18th Amendment and Prohibition) of restricting personal liberty as embodied in the proposed amendment to ban flag desecration that failed by one vote in the Senate last summer.
But I do worry about holes, places where the Constitution perhaps does need fixing,to correct either inconsistencies or to address issues that we have never considered before. For example. what if we impeach a Vice President?
Let us begin this exploration with Article I, Section 3 (Senate) Clause 6:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
This of course need to be combined with Clause 3 of the same section:
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided
.
In other words, folks, if Dick Cheney were to be impeached, he would preside over his own trial!! Methinks we need an amendment to fix Article I, Section 3, Clause 6, to insert after the word �President� the additional words �"or Vice President�".
There. That one was easy. A hole plugged. And who, besides a Vice President himself
facing possible impeachment (hello Mr. �go f**k yourself�), could conceivably object?
Next. let�s talk about one of two cases where we attempted to fix a problem by amending the Constitution. Let�s look at the first sentence of the text of Amendment XXII, Section 1:
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.
. But please note that this restriction is to ELECTION of a president. It says elected not eligible. Thus the constitutional restrictions as to eligibility remain those stated in Article II, Section 1, Clause 5:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
. Let�'s reiterate. You are only Constitutionally barred from being president if you are less than 35, or not a natural born citizen, or have not been 14 years resident here. All other people, including ex-president are eligible to BE president, merely not allowed to be ELECTED president.
Why does this matter? Well, constitutionally Amendment XII in its last sentence defines the eligibility for the office of Vice President:
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
. Since it does not say constitutionally ineligible to be elected president, Bill Clinton is constitutionally eligible to be Vice President, because the 22nd Amendment only bars him from being elected president, not from ascending to that office through the process of succession, whether as VP, Speaker, President Pro Tempore of the Senate, or head of a cabinet department. If our intent is to bar two term presidents from SERVING as president we need to change Amendment XXII or add an amendment that no one ineligible to be elected president is eligible to serve as president.
The last problem is far more difficult. We created Amendment XXV for several reasons, including filling a vacancy in the office of Vice President. We also allowed a President to temporarily surrender his duties, or to have his chief advisors remove him from power (?temporarily?) if he were unable to fulfill his duties. This last aspect was put in because people remembered the stroke suffered by Woodrow Wilson, and the serious heart attack of Eisenhower in his second term. They also wondered what the country would have done had John Kennedy survived his shooting in Dallas,but his brain was destroyed. Thus we have in the Amendment XXV the following:
Section 3.
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits
to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit
to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Section 4 continues with how the President can regain his powers unde either circumstance, but that is not relevant to the discussion I wish to have. My focus is on this: both Section 3 and Section 4 of this Amendment specifically list the Vice President. Fans of the TV show West Wing may remember President Bartlet stepping aside temporarily because his daughter had been kidnapped. At that moment there was no Vice President, as VP Hoines had resigned because of a scandal. In the show they had the Republican
Speaker (played by John Goodman) temporarily assuming the Oval office. I do not believe that such a move is possible under the wording of the Amendment. It made for a good story line, because he had to resign his House seat to even temporarily assume the presidency, but in fact under this Amendment he could NOT assume the presidency temporarily, and could only ascend to that office permanently if there
were a permanent vacancy, this being part of presidential succession as established in a series of laws.
This is not easy to fix. Neither the President Pro Tempore nor Speaker could be designated to succeed temporarily without resigning from Congress. And there is no easy way to designate someone other than the Vice President to participate in the involuntary removal as specified in Section 4.
Our Founders did a pretty good job in what they drafted, although they did not specify qualification either for the VP or for Speaker of the House (the Constitution merely says that the House shall choose its speaker and other officers, which in theory means that a Speaker need not be a member, or even eligible to be a member, of the House itself). But they, and those who followed, have left some holes. I thought all the politically active types here might want to realize that our founding governing document is not perfect.