Virginia’s single term limit: a unique aberration

            When Sarah Palin called herself a lame duck—in reference to her resignation from the governorship of Alaska—it struck me as an odd use of the term.  After all, she has two more years left to govern, meaning there are two legislative sessions that require her input.  What’s more, she could have run for reelection, meaning instead of assuming “lame duck” status, she could have ramped up her efforts to pass key legislation to boost her portfolio of achievements by 2010.

            In fact, there is only one state in the country in which a first term executive is always a lame duck: Virginia.  Article V of the Virginia Constitution reads that the executive “shall be ineligible to the same office for the term next succeeding that for which he was elected….”  Now, technically, this language allows a governor to serve as many terms as he is elected to; they simply cannot be succeeding terms.  This odd scenario happened once in the twentieth century: Mills E. Godwin served as a Democrat from 1966-1970 and as a Republican from 1974-1978.  But as a practical matter, no recent governor has attempted to reclaim his job—most have attempted (and all but one have succeeded in) running for the Senate.

            I wrote to Dick Howard, a professor at the University of Virginia and author of Commentaries on the Constitution of Virginia, asking why Virginia has remained the sole bastion of the single-term limit.  Here is his answer:

When I directed the most recent revision of the Constitution of Virginia, I laid this question before the Commission on Constitutional Revision.  The commissioners (who included two former governors, Colgate Darden and Albertis Harrison) chose to leave the one-term limit in place.  For my own part, I would allow a governor to run for a second term.  Virginia is now the only state in the country retaining a one-term limit.  The conventional argument, which I think overblown, is that Virginia’s governor is sufficiently powerful vis-a-vis the legislature that he ought not to have more than one term.

Democratic governors Mark Warner and Tim Kaine

            Upon ratification of Virginia’s first constitution in 1776, the executive was weak (like most governors, powers were mostly limited to commanding the militia and granting pardons) and was appointed to a one-year term, twice renewable, by the General Assembly.  The governor shared power with an eight-member Council of State, also appointed by the General Assembly.  In 1851, the governorship became an elective office, the Council was abolished, and the term became a four-year, non-renewable one.

            The legislature has made multiple attempts to raise a constitutional amendment to repeal the single term limit, but it has never been approved twice (two votes are required, before and after a general election) in order to be submitted to voters; the last attempt was made in 1995.  The argument against a renewable term is that Virginia’s executive has been strengthened with succeeding constitutions, now having line-item veto power and the ability to make some appointments.  Legislators would like to see the appointment power curtailed in order for the governor to be eligible for reelection.

            While recent governors, including Douglas Wilder, Jim Gilmore, and Mark Warner, support a two-term limit, at the time of the last constitutional revision (1970) there was no interest among former governors to scrap the provision.  With every passing election, this part of our Constitution becomes more and more archaic.  A single term provides no ratification or repudiation of the incumbent’s agenda by the voters.  The proxy measure of success is whether the next governor is of the same party as the incumbent, but think of how much more work could get done with the cultivation of relationships between legislators and civic leaders if one individual were to serve for eight years.

            Gov. Tim Kaine, for instance, has few legislative victories to boast of besides a smoking ban in bars and restaurants and a significant buildup of the Democratic Party machinery.  His campaign promise to fix transportation issues has gone unfulfilled, and he blames this impasse on an adversarial Republican legislature.  Furthermore, his last year-and-a-half in office has been consumed by steering the state through a recession—cutting budgets rather than implementing new policy. 

         And while few people will suggest that Kaine is not a hardworking executive (at least, compared with other governors whose personal antics or managerial skills have embarrassed their states), he already has a job lined up after his term expires—as the chairman of the Democratic National Committee.  That is something we can avoid with a renewable term: preventing the governorship from becoming a placeholder position on the road to bigger and better things.

         Virginia has myriad legislative battles to fight in the coming years.  But some time in the near future, I would hope that the General Assembly will see fit to give incumbent governors the ability to put their tenure on the line for voters to renew.  It could not only tame the parochialism in the legislature, but it could reward excellent managers with the ability to establish a more permanent legacy.

Mike Huckabee’s abortion argument

        Last Thursday, Jon Stewart of “The Daily Show” interviewed former Arkansas governor and presidential candidate Mike Huckabee on the issue of abortion (the last time they were together, they clashed over gay marriage).  Naturally, I disagree with nearly everything Huckabee had to say.  Before I get into the details, though, consider this passage from an 1850 (thus, in the context of slavery and secession) speech by Massachusetts senator Daniel Webster:

In all such disputes [involving religious beliefs], there will sometimes be men found with whom everything is absolute—absolutely wrong, or absolutely right.  They see the right clearly; they think others ought so to see it, and they are disposed to establish a broad line of distinction between what is right, and what is wrong….There are men, who, with clear perceptions, as they think, of their own duty, do not see how too hot a pursuit of one duty may involve them in the violation of another duty, or how too warm an embracement of one truth may lead to a disregard of other truths equally important….There are men, who, in times of that sort, and disputes of that sort, are of opinion, that human duties may be ascertained with the exactness of mathematics.  They deal with morals as with mathematics, and they think what is right, may be distinguished from what is wrong, with the precision of an algebraic equation.

            The interview had a consistent theme: Huckabee believes that the abortion debate deals with “the fundamental issue of whether or not every human life has intrinsic worth and value.  I believe every life has value.”  That is an admirable stance—no one wants to see life of any sort be taken away.  But unfortunately, our world is filled with contradictions and insensitivities about human suffering that many conservatives who are pro-life tend to overlook.

            For instance, Huckabee asserts that “if we train a generation coming up after us that it is okay to take a human life because that life represents to us an interference or an interruption to our lives—either economically or socially…” then genocide of the poor, or the elderly, or of the deformed could ensue.  But don’t we already tolerate the fact that impoverished, and primarily non-white youths in inner cities run with gangs and have access to guns and drugs?  Does the ease of building more prisons and enacting martial law while eschewing the less overt benefits of operating community centers and after-school programs say something about the intrinsic worth of these individuals?

            What about toleration of landlords who evict low-income residents and sell their buildings to developers of condominiums to make a profit?  What about the lack of a safety net for single mothers who make too much money to apply for Medicaid yet still can barely make ends meet?  What about the growing income inequality, and the families who are broken up when immigration authorities arrest the father at his workplace?  What about a military and a media that can still tend to treat the lives of Iraqi and Afghan civilians as less compelling than that of a singular American security guard?

         To me, quality of life is more important than quantity.  A fetus that is aborted could easily have become a doctor or a teacher, but he could also have become a rapist or a murderer.  Who knows, maybe he would have been executed by the state for his crime.  Wouldn’t that be ironic?

        Huckabee’s other notable assertion is that abortion calls to question whether “a person ha[s] a right to own another person.”  That is to say, do your parents (the mother, specifically) own you?  That’s a no-brainer; of course they do.  Even though Huckabee is trying to equate parenthood with a plantation, it is obvious that a child depends on his parents for at least the first sixteen years of his life—financially, emotionally, sometimes physically.  Parents have the right to tell you how to live (just as you have the right to ignore them), but they also have an obligation to your welfare, and both the state and the community punish those who fail to live up to their responsibility.

         For his question of “Can the mother totally own the child,” Stewart responded appropriately with, “Can the government totally own the mother?”  To that, Huckabee answered with his version of the Founding Fathers’ vision of America, in which “all people are created equal” (which is, of course, false: the Declaration of Independence states that only men are equal, and it remains true politically and socially even to this day, right to the moment that Huckabee says that women should not have control of their own bodies).

         He continued with, “The concept [of our republic] was that there is an equality about each human life, that no one is worth more than another, that no one is worth less than another.”  That is such a purposeful misreading of history that I will not detail it here.  Suffice to say, I have no doubt that many, if not all, of the Founders agreed that each person had the potential to be treated equally in the very distant future—but given centuries of racial, class, and gender discrimination, Huckabee deludes himself that we could ever apply that standard to the womb, when we cannot even apply it in the outside world.

         I do not believe that society has an interest in protecting a fetus from the moment of conception, and I believe that we have too hard of a time treating grown men and women equally to try and enshrine a whole new class of life.  To believe that the abortion debate is as binary as whether or not to protect human life is the kind of moral standard we fail to hold ourselves to in numerous other aspects of public policy.  Just as Webster cautioned, we cannot treat the number of abortions as if it were some mathematical casualty count.  There are so many more areas in which we could improve our regard for human life—not to mention the lives of mothers who are neither emotionally nor physically prepared to bring a child to term.

GOP senator speaks of a “classical” Constitution

         A nominee for the Supreme Court is anticipated from the White House any day now, and the timing of gay marriage legalizations in the Northeast and Iowa will probably make that issue the first order of business for conservatives on the Judiciary Committee.  No problem, I am sure that whomever Obama picks, she will be able to convey her beliefs with allusions to “equal rights,” “adherence to precedents,” “states’ prerogatives,” and “social norms.”

            But Sen. Jeff Sessions from Alabama, himself a failed judicial nominee from the 1980s and now the ranking minority member of the Judiciary Committee, gave a somewhat coded answer as to why a judge’s view on gay marriage even matters in the first place.  He said that such attitudes “may reflect the degree to which they think that they’re not bound by the classical meaning of the Constitution, and that they may want to let a personal agenda go beyond what the law said”.

             Classical meaning of the Constitution?  What does that even mean?  He could have mentioned the “original intent” doctrine, but that would have sounded even sillier considering that the Founding Fathers could not have imagined that their plan for government would ever be scrutinized for clues regarding same-sex marriage.  Indeed, marriage is not a constitutional right, but a civil right, meaning it can be taken away by unscrupulous majorities.  Interracial marriage was not legalized by the Court until 1967, unanimously; can you imagine those conservatives screaming about interracial marriage destroying “traditional family values”?

            Which brings us to the word “classical” (or “traditional,” I assume they are interchangeable): he means, essentially, that we should be doing things as they have always been done, without respect to changing social customs or ways of thinking.  But that is the frightening part of conservatism—where would these people like us to stop the clock?  1950, before “activist courts” forced integration on the states?  1910, before women were given the right to vote and before factory workers were protected from grueling workdays?  1800, when life expectancy was forty years, university education was reserved for elites, and there was no high speed Internet?  Does anyone seriously want to go back to the “classical” American days?

            The problem with original intent is that a.) the Founders could only provide, at best, a rough outline of how we should be expected to deal with changes one hundred or two hundred years in the future; and b.) two hundred years of changes have indeed taken place.  Technology, mobility, industry, and education have made us a more tolerant people.  That is why so-called activist courts have broken down barriers (I call it “democratization”) to participation in government and have moved to protect individuals’ liberties.

            Conservatives use the word “traditional” to exclude groups of people who do not fit in their utopian vision of churchgoing, small town, breadwinner-homemaker styles families.  In fact, it was not too far back in our history where “traditional” meant ensuring that white men held power at the expense of everyone else.  Obviously both of these models are breaking down, and with good reason.  “Traditionalism” involves a superiority complex—those who call for it think that their way of life should be forced on everyone else because they think change could be unhealthy.  It is that kind of mindset that gives rise to traditions that we (should) find abhorrent—such as the “separate but equal” doctrine (Plessy v. Ferguson) or that women receive less pay than men (Ledbetter v. Goodyear).

            I hope that Obama’s nominee is respectful of the Constitution, as she will be, and even of “tradition” (whatever that means); but I by no means want today’s bigotry to be codified in a way that restricts tomorrow’s Americans.

Obama’s empathetic judge

         While a president may have very little direct influence on policymaking, he is given substantial leeway to choose the administrators, advisors, regulators, and Cabinet members whose job it is to work with Congress to implement his agenda.  These people play a big role in guiding the country to the left or to the right for a term or two.  But the long-run impact of a president occurs not through executive agencies, but via the courts, where the president’s judicial philosophy is carried out for years or decades after he leaves office.

            Whereas Bush surrounded himself with loyalists who were more concerned with ideology than pragmatism, Obama has proven to be the opposite.  Many of his Cabinet members are heavy hitters and critical thinkers who don’t have longstanding ties to Obama.  As the administration gears up to nominate someone to replace retiring Supreme Court Justice David Souter, the speculation is that this person will be somehow different from all other members—either a governor, a Latina, a black woman, an Asian, etc. who is more than a reliable partisan.

         Above all, Obama stated that he wants his nominee to be “someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily realities of people’s lives.”   He hopes that his pick will see that the “quality of empathy, of understanding and identifying with people’s hopes and struggles [is] an essential ingredient for arriving at just decisions and outcomes.”

            Already, though, that harmless word “empathy” is throwing some conservatives into a frenzy.  According to them, having empathy is code for being an activist judge, or for being pro-choice, or for siding with the consumer over big business.  Judges don’t have empathy; empathy clouds judgment.  A judge’s business is to read what is in the Constitution, apply it to the case, and decide who is right—not who deserves favorable treatment.

            The problem with this argument is that the Constitution is not so clear—and was never intended to be clear—on a range of issues that did not exist in 1789.  And to that end, being book smart regarding the thousands of relevant statutes and precedents may still not be enough to answer the challenging questions of tomorrow.  Throughout the country’s history, judges have been senators, representatives, soldiers, bureaucrats, and even a president.  William O. Douglas was an outdoorsman who famously helped save the C&O Trail for hikers/bikers while he sat on the bench.

              The point is that being a judge does not necessarily require a two-dimensional personality of encyclopedic case law knowledge.  A judge who is familiar with political fault lines and the roots of social disorder may bring a unique perspective.  Back in the early days, justices were appointed from different regions of the country in the name of “diversity”, since communication and differential economic growth had not yet homogenized the nation.  A judge must be able to realize that both parties in a case can be right in principle, but that good law must level the playing field for the greatest number of people.  And that is how schools become integrated, poor defendants gain access to lawyers, and children are protected from hearing profanity on the radio.

            Of course, all decisions involve trade-offs: between freer commerce and protective regulation; between liberty and safety; between social custom and ultimate equality.  And the fear that Obama’s judge will be an “activist” is a mistake conservatives often make in referring to a liberal judge—the right wing of the Supreme Court overturned Washington, D.C.’s gun control laws last summer in a moment of activism.  It is unfortunate the idea somehow bothers conservatives that rendering social justice makes a mockery of real justice.

            Hopefully, Obama’s nominee will be able to prove able to blend the Constitution, law, culture, and history into an understanding of what her/his ruling will mean for individuals, groups, and principles.

The meek have inherited the Congress

            Rare is the occasion when I find myself in agreement with conservative commentator George F. Will.  Given that he is to newspapers what Bill O’Reilly is to television—only with a better vocabulary and a more even temper—many of his columns have elicited eye rolls and head shakes of disgust.  But in a Sunday opinion piece, Will provided a political assessment that is as accurate as it is disturbing: that Congress has allowed the executive branch to gain disproportionate at its own expense.

            He cited the Economic Stabilization Act of 2008—the bailout bill—as the perfect storm of Congress signing over vast amounts of money to the executive branch, whereby non-elected officials accountable only to the president decided how much money got doled out and to whom.  Car companies, banks, and lending institutions all got theirs, but what have we to show for it?  There is no use asking the people who oversaw the operation—they have already left town.

            It is not just during the bailout that Congress has been under-aggressive in performing their duties of regulating commerce, providing for the common defense and general welfare, promoting the progress of science, and making rules for the government.  During the entire Bush administration, when foreigners were being tortured, the justice department was being politicized, and veterans were receiving abominable care at Walter Reed Medical Center—not to mention the prosecution of the war in Iraq—Congress meekly was strung along.  Its subpoenas were ignored; its questions were evaded; the vice president of these United States even dropped an f-bomb to an elected official on the floor of the Senate.

            There is a reason that Article I of the Constitution is the first and lengthiest section of our nation’s blueprint: protecting the interests of the people and of the individual states is the chief duty of our representatives.  Judges and the president are merely administrators, checking the will of the people when it threatens individual liberty and collective security; but otherwise, their job is to translate the needs of the electorate, interest groups, and institutions into law.  Part of that job is to channel populist outrage into reform—as we saw in the AIG bonus debacle. 

       But when the executive branch is the party committing the outrage, Congress has been more than tepid.  I do not feel that my welfare is more secure when secret wiretaps and waterboarding are authorized by the president.  Or when the EPA refuses to acknowledge that greenhouse gases are harmful to the public.  Or when the Treasury Secretary disappears large amounts of money into shaky financial institutions.  None of the executive branch’s lawyers, administrators, or Cabinet members is elected by the public-and most are faceless bureaucrats.

       Alexander Hamilton, writing in the Federalist Papers to advocate the adoption of our Constitution, maintained that the executive branch should consist only of the president and his vice president, not a “council” of administrators.  Through a unitary executive, one person alone would be accountable to the country and would have to answer to the voters.  “An artful cabal” in a presidential council, he wrote, “would be able to distract and enervate the whole system of administration….It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.”  We are now bordering on that type of system: a Congress which deputizes the conduct of national affairs to the president, who then parcels out administration among his loyalists who are merely trusted to obey the spirit of the law.

       I recognize that in difficult times we need a single person to provide direction and unify the country.  But Congress should not wring its hands when wrongdoing occurs under the president as they did during the Bush years.  Our representatives thoroughly embarrassed auto executives last fall for flying in private jets, yet none of the Bush Cabinet officials has answered questions about improprieties in the Justice Department, violations of the Geneva Conventions, or scientific censorship.  The 535 men and women in the Capitol are the only barrier to the imposition of an imperial presidency on our republic.  Congressmen should not aim to become as rabid as Joseph McCarthy, but in order to prevent another rabidly-powerful Bush White House, Congress should not delegate their legislative powers to the president and must expose wrongdoing through hearings, the media, and prosecutions.