unoriginalname38 – the blog of Dave Cole

Is Cheney in the legislative or the executive branch?

Well, there's a post title that won't attract many people. It is, though, a serious question. Instapundit, via Matt Sinclair, raises the interesting point that, according to the US Constitution, the Vice President would preside over their own impeachment in the Senate. I made this comment:

...This is a good example of something I've been thinking about quite a lot of late - the imperfections in the US constitution. There was, from what I can see, a lot of debate about what form the executive should take. Originally, the Pres and Veep were not elected on a ticket, and so the conflict of interest is not as obvious; indeed, any conflict might have been because of outright animosity between VP and President.

It is, though, an oversight - the number of occasions where this might happen would have been thought very small (indeed, correct - zero), but it shows that not every detail was considered and that parts were made both on the hoof and in a rush, as well as trying to avoid unnecessary controversies. It gives the lie to the 'genius of the constitution' and attempts to make it more than it is - a human, flawed document.

This is added to by something I heard on The Daily Show this evening - is the Vice President a member of the legislative branch, of the executive branch or of both? Certainly, the Vice President is mentioned in the sections on both legislature and executive (A1 S3 and A4 S1 inter alia) and has functions in both - to chair the Senate and break ties in the former instance and to replace the President if necessary in the latter. Beyond that, the Vice President's responsibilities are not set out.

The Daily Show's criticism was that Mr Cheney had refused to comply with an executive order on the basis that his functions were not entirely within the executive branch. At this point, various people came on to say that this was constitutionally ridiculous. I'm no expert, but I disagree with them on the basis that the constitution is not clear and so there is room for legitimate debate¹. The more damaging objection (which Jon Stewart made little of) was that he'd used a similar argument in a similar position in 2001, but saying that he was part of the executive to avoid legislative questions.

The constitutional niceties are somewhat unimportant. All this arguing goes to prove three points.

A. The constitution is wide-open to interpretation. Arrogating it, on the basis of longevity or emotional attachment², powers it does not warrant or deserve is profoundly dangerous. Given that great pains are taken to separate powers and guard against monarchical rule, or any semblance thereof, by corrupt or malign officials, it is a pretty pair of oversights that Mr Cheney has 'stumbled across'.
B. Even if the original document was perfect for its time, both times and it has changed. Amendments, such as those concerning election of the Vice President no longer being the person who came second for President, damage any coherence it may have had.
C. All the constitutional argument in the world does little good if some people are prepared to hide behind its details to avoid its spirit. The constitution is no more than a piece of paper if people go out of their way to avoid it and are abetted in so doing by legislators and the fourth estate.

1 - Mr Cheney's case was somewhat hurt by the release today of news that arms of the American state went out of their way to deceive, inveigle and obfuscate - as Mandy Rice-Davies would have said - well he would say that, wouldn't he? As I've said before, that's an ad hominem and a logical fallacy, but it doesn't change the amount of damage it does.
2 - This is an older ancestor worship than I used to think, although it has changed, I think, into focusing on individuals rather than principles. "We can win no laurels in a war for independence. Earlier and worthier hands have gathered them all. Nor are there places for us ... [as] the founders of states. Our fathers have filled them. But there remains to us a great duty of defence and preservation." Joseph J. Ellis; Passionate Sage: The Character and Legacy of John Adams. (2001) p. 214

Labels: Americana

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