A Monthly Column for Word Lovers
The Duties and Powers of His Office
We carefully went over the final language which had been drafted and had been submitted to the office of the Senate's Legislative Counsel for checking. The language would do the job.
Senator Birch Bayh in One Heartbeat Away
Talk is in the air, and has been regularly since the election of Donald Trump, about how he might be removed from office, by impeachment or other means. Lately, the trend has been toward other means: namely, the means provided for in the Constitution in the event the a president is deemed unable or unfit to serve. Google searches on "25th Amendment," essentially flat since 2004 when Google started tracking internet searches, became a regular feature of the search world in mid-2016 and have continued since:
Twitter hashtags #25thAmendment and #25AmendmentNow also appear with increasing frequency—a trend you can see for yourself by searching on Twitter's home page. Politico ran a story about the amendment recently, calling it Washington's Growing Obsession. Here in the Lounge, we've been thinking (not surprisingly!) about the language of the 25th Amendment.
As amendments to the Constitution go, the 25th is a newbie, having been enacted in 1967. There are only two amendments more recent, the 26th (granting 18-year-olds the right to vote) and the 27th (having to do with pay for members of Congress). Also as amendments go, the 25th has a well-documented history, mainly because its chief proponent and author, former Senator Birch Bayh (1963-1981) of Indiana, wrote a book about it. Senator Bayh is a competent writer and his detailed history of the amendment is an interesting case for language lovers: you can hardly turn a page in the book without landing on some discussion of the tortuous process of arriving at the final wording of the amendment. It gives us an opportunity to explore the intersection of language and law, and the always imperfect process by which we are obliged to make language represent intention and enforceable meaning in a way that is enduring and unequivocal.
To start with the big picture: let's say, for the sake of brevity, that laws are "standards of behavior that can be communicated (and some of which are made) by using language." If you want the TL;DR version of that, have a look at the excellent and erudite article in the Stanford Encyclopedia of Philosophy, "Law and Language". The challenge, when codifying a law in language, is to make it concise (the more language, the greater the possibility of self-contradiction and over-specification); accurate (that is, truly representative and descriptive of the intention behind it), and durable (not subject to challenges and doubts about its wording that could lead to endless litigation, re-interpretation, and revision). Those are not small challenges, and indeed, it's easy to conceive a large segment of the legal profession as existing merely to pick apart the language of laws in the hope of finding loopholes, errors, and omissions.
The 25th Amendment was an attempt to address the deficiencies of Article II, Section 1 of the Constitution, which did not adequately foresee all contingencies that might arise in the event of an incapacitated or unfit president. At several times in US history, when a president or vice president has become temporarily or ambiguously unable to serve, questions arose as to who was in charge and what title they should carry. The 25th Amendment addressed these problems, imperfectly, as is the case with all complicated laws, but perhaps in a once-and-for-all way. Since it was ratified, it has been invoked six times, which is surely testament to the need for it, and perhaps also testament to its durability.
A telling anecdote from Bayh's book suggests the difficulty of arriving at language in the amendment that would represent the legislature's intentions:
[The drafters] spent that day and most of the evening working with the staff of the Senate Legislative Counsel's office perfecting the language of our amendment. . . .[In their] attempt to cover every possible contingency, the first version of the proposed language had stretched to five or six pages. [Legislative Assistant Larry] Conrad felt that Madison and Monroe were glaring over his shoulder, for his completed version of the succession provision alone was, in first draft, longer than all the other constitutional amendments put together! Eventually, however, the language was pared down and distilled to a workable length.
Elsewhere in the book, Bayh comments on a basic principle of constitutional law—that it should be a statement of broad principles that are then enacted by more explicit laws. He says "it is generally believed that one reason our Constitution has adapted itself so well to the changes of time has been its breadth of language and its open-endedness." So a considerable challenge here was to make succession clear, without overburdening the constitution with details and arcane contingencies.
The amendment has four sections. The first three bring order to the process by which a sitting president is succeeded, and these are the only sections of the amendment that have been used. The fourth section, which we might call the nuclear option, is the one that comes into play only when a sitting president is deemed to be unfit (by the Vice President and a majority of the cabinet) but does not step aside. It is longer than all the other sections combined. It has never been invoked.
Talk of the 25th Amendment in the media now, while ongoing and sometimes feverish, is also desultory insofar as there is really nothing to talk about until the Amendment is actually invoked: either in section 3 (the president declares himself unfit or unable) or in section 4 (others do that). The mechanisms by which this might happen, barring an event that clearly incapacitated the president, are rare and somewhat unlikely. That is what the writers of the Amendment intended, over the course of years in which it was discussed, debated, drafted and redrafted. Near the end of Bayh's book, he makes this trenchant observation about the work that went into writing the Amendment:
If my colleagues feel it should be debated more, I believe we should do so. I have tried, and will continue, to listen to every argument. However, I have studied this measure enough to know—and I say this from the bottom of my heart—that if we ever expect to have a constitutional amendment on this important question, the most complicated and intricate issue that we have ever tried to put into the Constitution, because of all the medical ramifications and power struggles that might exist—if we ever intend to get a measure with respect to which there will not be a scintilla of controversy, with very specific wording, we might as well terminate the debate and throw this year and a half's work in the ashcan, because we are not going to do it.
So: an imperfect amendment, and one that would involve not a scintilla, but a boatload of controversy if section 4 were invoked. So it is not known yet if the language of the amendment would "do the job," as Senator Bayh hoped it would, and not yet determined whether the amendment has a job to do in the current administration.