The University of Texas at Austin   School of Law

Main menu:

July 3, 2007

Press Contact: Kirston Fortune, Assistant Dean for Communications, (512) 471.7330 or kfortune@law.utexas.edu

Ideas: Sanford Levinson calls for the abolition of the vice presidency in The Boston Globe.

Published with the author’s permission; The Boston Globe (Sunday, July 1, 2007) Link to original article (Registration may be required.)

No vice

There’s a lot of talk — and wishful thinking — about removing Dick Cheney from office. But Cheney isn’t the real problem. The vice presidency itself, enshrined in the Constitution, is the problem. The country would be better off without it.

By Sanford Levinson | July 1, 2007

WE ARE ALREADY in the midst of a vigorous campaign to select the next president of the United States. But, of course, in November 2008 we will be selecting both a president and a vice president.

It’s obvious enough why we need a president, unless we repudiate our Constitution and decide to emulate parliamentary systems that place power in the hands of prime ministers, selected by legislative majority, who do not serve for fixed terms. Not for us is a system like Great Britain’s, which last week saw the unexceptional handover of power from Tony Blair to Gordon Brown without so much as a vote being cast by any member of the public.

But why do we need a vice president? The vice president has no particular duties under the Constitution other than to ask after the president’s health each morning and to preside over the Senate (and cast the tie-breaking vote if the Senate is evenly split). And yet the vice president — if he proves himself a liability, or unfit to stand a heartbeat away from the Oval Office — cannot be dismissed by the president he serves, or be removed by Congress except by impeachment. So how exactly do Americans benefit from this constitutionally ordained office?

These questions, which might seem unduly academic under normal circumstances, have taken on special meaning as a substantial majority of Americans express concern about Vice President Dick Cheney’s fitness for his office. Numerous articles, most recently in The Washington Post, and earlier in The Boston Globe and elsewhere, have demonstrated Cheney’s unprecedented influence over a variety of policy areas during the past six years, including the decision to go to war in Iraq and, perhaps as important, the authorization of what can only be described as torture in the interrogation of terrorism suspects, or “illegal enemy combatants.”

Most Americans believe, justifiably, that Cheney has consistently displayed appallingly bad judgment. On top of this, there is his contempt for democratic accountability and oversight by other institutions of government. Most recently, he defied a presidential order requiring monitoring of classified information, claiming that he is exempt because, as Senate president, he is a member of the legislative branch. (Of course, he also defies congressional oversight by claiming certain “executive privileges.”)

To remove Cheney from office, one would have to impeach him — and there is indeed a small but growing movement among both liberals and conservatives to do just that. And yet, for better or worse, it is difficult to argue that Cheney himself has done anything in his capacity as vice president that rises to the level of “high crimes and misdemeanors,” as required by the Constitution for impeachment. His only official job, presiding over the Senate, offers few opportunities for scoffing at the law. (And even if his claimed exemption from a presidential order is thought to be illegal, it is a stretch to view that as an impeachable offense, and it would, of course, take at least until the end of his term to get a judicial decision on the claim.)

Exercise of spectacularly bad judgment, alas, is not a criminal offense. If, as in parliamentary systems, Congress could remove Cheney through a vote of “no confidence,” he might indeed have reason to fear for his continued employment, but the Constitution provides him job security against such a possibility.

The problem, then, is not only Dick Cheney but the US Constitution. Consider that in a 21st-century world that contains literally dozens of constitutional republics, few with constitutions written after World War II have seen fit to include a constitutionally entrenched vice president. (Most have chosen parliamentary systems, fearing autocratic presidents.) France, which just completed a dramatic presidential election, has no vice president at all. South Africa, when drafting its widely admired 1994 constitution, did provide for a “deputy president,” but he serves at the pleasure of the president, which means, by definition, that he has nothing resembling the job security of Dick Cheney.

There is, as a practical matter, almost nothing we can do to affect Cheney’s tenure as vice president and, perhaps, president. But considering his lamentable record over the past six years, and looking back as well at the history of the vice presidency, the question to ask on this Fourth of July is whether we should continue blithely to embrace the possibility of future Cheneys. The time has come to consider amending the Constitution either to abolish the office of the vice president outright, or at least make it easier to engage in sober second thoughts and remove a potential successor to the presidency in whom the country has lost all trust.

What were the framers thinking when they established the office of vice president? The original vision underlying the Electoral College was that the vice president would be the person who came in second in the balloting for the presidency, with each elector casting two votes. In theory, at least, the vice president would be the person deemed by the politically sagacious electors to be the second most-qualified person in the country to be our chief executive.

This vision, circa 1787, assumed the lack of political parties and an emphasis by electors on the “civic virtue” of the candidates. And yet, even if one concedes the virtue of both John Adams and Thomas Jefferson, our first two vice presidents, by 1796 they were political enemies, with strikingly different visions of the American future (as demonstrated by the fact that no individual elector made them his first and second choice). By 1800, America had developed its first system of organized political parties, and Adams and Jefferson ran against each other as leaders of the bitterly opposed Federalist and Democratic-Republican parties.

That election ended in a fiasco when Jeffersonian electors did not have the wit to give Aaron Burr, Jefferson’s running mate, one electoral vote less than Jefferson received. Instead, the two men received the same majority of electoral votes, throwing the election into the Federalist-controlled, lame-duck House of Representatives. It took 36 ballots and the threat of armed intervention by the Virginia and Pennsylvania militias before the Federalists grudgingly selected Jefferson.

The Jeffersonian Congress reacted to the 1800 election by proposing in 1803 the quickly ratified 12th Amendment, which solved the peculiarity of a tie vote between the presidential and vice presidential candidates by establishing separate tracks for electing the two. Unfortunately, no one seems to have asked why we needed a vice president in the first place.

To be fair to the framers and to the amenders of 1803, one might acknowledge that they were writing on a clean slate, and perhaps forgive them for believing that the office of the vice president made sense. But looking back at the almost 220 years since the first American presidential election, in 1789, one discovers that there have been many times when the country would have been better off without a vice president at all.

History buffs are aware that two 19th-century presidents died in office (William Henry Harrison and Zachary Taylor), while two others were assassinated (Abraham Lincoln and James A. Garfield). They were succeeded by John Tyler, Millard Fillmore, Andrew Johnson, and Chester A. Arthur, respectively — at best nonentities, and at worst, as with Tyler and Johnson, disasters. Tyler, for example, was insistent on doing whatever he could to strengthen what was called the “slavocracy,” while Johnson, as is well known, devoted most of his energies as Lincoln’s successor to attempting to torpedo any significant “reconstruction” of the defeated Confederacy.

The 20th century is better on this score, giving us as successors to the Oval Office Teddy Roosevelt, Calvin Coolidge, Harry Truman, Lyndon Johnson, and Gerald Ford. But consider some of the other possibilities had events taken a different course: One can well argue, for example, that Woodrow Wilson did a disservice to the country by remaining in office following a debilitating stroke in October 1919. But had he resigned, or had the stroke simply been fatal, the amiable but otherwise unqualified former Indiana senator Thomas Marshall would have succeeded him during the crucial period following the Paris Peace Conference and the bitter conflict it generated about US ratification of the Versailles Treaty.

Had anything happened to Franklin Delano Roosevelt early in his tenure, he would have been succeeded at a time of national crisis by former Speaker of the House John Nance (“Texas Jack”) Garner, who shared neither Roosevelt’s imagination nor his political skills. More recently, of course, we had the spectacle of the ultimately disgraced Spiro Agnew and the remarkably unfit Dan Quayle being one heartbeat away from succeeding Richard Nixon and George H. W. Bush, respectively.

Furthermore, a look at the historical record demonstrates that “We the People” have, in fact, gone many years in which nobody occupied the vice president’s office. (Succession-in-office acts have always designated the next in line to the presidency in the event of a tragedy.) It was only in 1967, with the ratification of the 25th Amendment, that a procedure was established to assure that there would always be a vice president. This accounts for Nixon being able to name Gerald Ford to the office following Agnew’s resignation and Ford’s naming Nelson Rockefeller as his vice president.

Prior to that, the office simply remained vacant if a vice president succeeded to the presidency or, more commonly, if the vice president died in office. Succession to the White House by Tyler, Fillmore, Johnson, Arthur, Teddy Roosevelt, Coolidge, Truman, Johnson, and Ford accounts for 27 years of vacancies.

In addition, a surprising number of vice presidents died in office; indeed, it was almost a kiss of death throughout the 19th century. For example, both of James Madison’s vice presidents (George Clinton and Massachusetts’s own Elbridge Gerry) died remarkably early in their term in office. Running mates chosen by Franklin Pierce, Grover Cleveland, and William McKinley — William R. King, Thomas Hendricks, and Garrett Hobart, respectively — also died so quickly that all of these presidents basically served their entire terms without a vice president because of the almost immediate deaths of their running mates. Other vice presidential deaths came later in presidential terms.

In all, then, for about 45 years since the inauguration of George Washington, we have been without a vice president, and no one seemed to notice, or believe the nation was in peril.

It is worth noting that Dick Cheney has one of the better resumes of American vice presidents, with a wide range of experience in both the legislative and executive branches. In this respect, he is no Agnew or Quayle. But a fine resume alone doesn’t qualify a person to be president. There are other, equally important qualities that Cheney is lacking.

If you are part of the majority of the population that cringes at the possibility of a Cheney presidency, the only practical advice is to pray for George Bush’s health. Should something happen to the president, and should Cheney succeed to the White House, it could trigger a political crisis of stunning dimensions, given the widespread lack of trust, at home and abroad, in his judgment and commitment to basic notions of the American republic. Nevertheless, he would have gotten to the White House because of the Constitution.

The presidential candidates of both parties should be asked to explain, at least once in their frenzied campaigning, why exactly the country is well served by the current structure of presidential succession and whether they would support a constitutional amendment either eliminating the vice presidency entirely or, at the very least, making the vice president removable, either by the president or Congress, should the prospect of a given vice president’s succession provoke more horror than confidence. It should not be necessary to rev up the basically unworkable machinery of formal impeachment in such cases.

We best honor those who declared our independence 231 years ago by having the willingness they exhibited to cast a cold eye on existing political institutions and to decide whether they are suitable to the times. We have good reason to be grateful for much they bequeathed us. But the entrenched vice presidency is an idea whose time has passed; we should amend the Constitution to eliminate it.

Sanford Levinson, a professor of law at The University of Texas Law School, will be a visiting professor at the Harvard Law School this fall. He is the author of “Our Undemocratic Constitution.”