The Constitution Today

PART I

MODERN BRANCHES

1

THE PRESIDENCY

A Return to Dynasty?

AT THE AGE OF NINE, I became a collector. I started amassing coins, miniature cars, marbles, baseball cards, and presidential knickknacks. As I memorized the order of the presidents and fun facts about these first men, I couldn’t help noticing that there were two presidents named Adams, two named Harrison, and two named Roosevelt. (There were no presidential Bushes yet, of course.)

And then there were the Kennedys. My impressions of John F. Kennedy were almost entirely posthumous. But my emotional relationship to his two younger brothers was very different. In 1968, some of my precocious fourth-grade pals were supporters of Eugene McCarthy, but I was for Kennedy all the way—Robert, that is. In college, I fell for Kennedy yet again—another brother, Ted. Only years later, when I came to study the American Revolution and the Founding of the Constitution did I begin to see the sinister side of Camelot—a metaphor I now find downright un-American and anti-constitutional, for reasons that I unfold in one of the essays in this chapter.

As an adult, I began to see dynasties everywhere. One eye-opening experience occurred in the summer of 1992, when I read historian Gordon Wood’s magisterial book, The Radicalism of the American Revolution. This epic tome, with its sustained focus on the monarchical, aristocratic, and clerical elements of the ancien régime that American revolutionaries hoped to sweep away, helped me see several constitutional clauses in a new light. The multiple bans on titles of nobility, the explicit guarantee of a republican form of government, the absence of property qualifications for federal public service, the promise that all federal public servants would be paid from a public treasury, the secular presidential oath clause, the repudiation of religious tests for federal officeholding, even the minimum age rules in the document—all were part of a comprehensive anti-aristocratic, anti-feudal, anti-establishmentarian vision. American government officials, especially American presidents, would be decisively different from Old World sacerdotal monarchs who inherited hallowed crowns from their fathers and passed them down, with priestly blessing, to their sons and namesakes.

Two events at the turn of the millennium—one personal and one political—heightened my sensitivity to dynastic issues. First, in 1999 I became a father and began to see the world through a father’s eyes, and to experience the natural instinct to favor one’s own child in ways large and small. My wife and I named our son Vikram Paul Amar after my two brothers, Vikram David Amar and Arun Paul Amar, and this surely sensitized me to various intricacies of the intergenerational name game. (“Which ‘Vik’ do you mean—‘big Vik’ or ‘little Vik?’”)

And then came the second momentous event—the emergence of George W. Bush onto the presidential stage. As I mention in this chapter’s opening journalistic essay, “U.S. Successions Began with George (III and W),” first-name-confusion in the Bush dynasty helped W in the earliest days of the 1999–2000 presidential sweepstakes. This essay ran in the Los Angeles Times in January 2000 and was a harbinger of things to come: Throughout the election year, George fils continued to benefit from his nominal resemblance to, and descent from, George père.

More generally, the prism of dynasty furnished a powerful tool for refracting both sides of the 2000 election. The race between Al Gore and George W. Bush was not just a Democrat against a Republican, a wonkish progressive against a compassionate conservative, a Harvard man against a Yalie. In a nation dedicated to the proposition that all persons are born equal, the presidential election of 2000 gave voters a choice between a senator’s son and a president’s son—or to be more genealogically precise, between a senator’s son and a president’s son/senator’s grandson/big-swing-state-governor’s brother. (Like W, Al Gore Jr. shared both a first and last name with a legendary political officeholder—his sire was none other than Senator Albert Gore Sr.—and in W’s case, we must recall that his father’s father was Senator Prescott Bush of Connecticut and his kid brother Jeb was in 2000 the sitting governor of Florida.)

The Founders would not have wanted to, and emphatically did not, deny modern Americans the right to make these pro-dynasty choices. But in this chapter’s essays, I suggest that the Founders would have been disappointed to see how little attention modern Americans have at times paid to the political dynasties rising up in our midst. Precisely because stories of charming princes and charmed princesses shape us all at an early age, we must as adults become aware of the immense power of these not-so-benign fairy tales, especially when backed, as they often are, by vast institutional clout and enormous intergenerational wealth.

Presidential dynasties are hardly the only ones to notice—especially if one is always on the lookout for dynastic influence. For example, Edmund G. Brown Sr. was my boyhood governor in California in the 1960s and his only son, Edmund G. Brown Jr., became California’s governor in the late 1970s and early 1980s, and is once again governor, having been reelected in 2010 and 2014. At least there was minimal name-confusion here: The elder Brown was generally known as “Pat” and the younger Brown has always gone by “Jerry.” Also, in his most recent two successful bids for the governorship, Jerry was surely judged more by his own track record than his father’s. Note, too, that Brown’s 2010 predecessor, Arnold Schwarzenegger, had never held political office prior to the governorship and was a celebrity not merely in his own right as a movie star, but also as a nephew-in-law of President John Kennedy and Senators Robert Kennedy and Ted Kennedy. And if all that isn’t dynastic enough, Arnold’s father-in-law, R. Sargent Shriver, was the Democratic nominee for the vice presidency in 1972.

Or to switch from one big blue coastal state to another: Recall that the current New York governor, Andrew Cuomo, is not just the son of a former governor, Mario, but was for fifteen years married to RFK’s daughter Kerry.

ONE THEME OF THIS BOOK is how various constitutional ideas either play out in, or are absent from, the mass media. I see political dynasties everywhere and am eager to talk about them anytime. But when are my fellow Americans—especially the editors who stand as the gatekeepers of America’s leading popular periodicals—eager to listen? Only during certain windows, alas. It is no coincidence that four of the five essays in this chapter were initially published in presidential election years—the first two in 2000, the third in 2008, and the fourth in 2012.

The fifth and final essay in this chapter, “Second Chances,” is also the product of a presidential election that captured the media’s attention. In the immediate aftermath of Barack Obama’s reelection in 2012, the editors of the Atlantic contacted me to solicit an essay to be published in early January 2013 to mark his second inauguration. Although this essay does not dwell in detail on family dynasties, it does end by imagining a second President Clinton—Hillary. Its main point is also closely related to dynasty: Because even presidents are mortal, America’s chiefs must look for ways to project their influence beyond their natural and political life spans. Familial dynasties have historically been one (Old World) way to project power into the future; handpicked succession is another (more democratic, New World) way.

Think of handpicked succession as adopting an adult heir rather than procreating an infant namesake. Whether power descends by birth (John and John Quincy Adams; George H. W. Bush and George W. Bush) or marriage (Bill and Hillary Clinton) or de facto adult adoption (George Washington and Alexander Hamilton; Thomas Jefferson and James Madison), the important thing, I argue, is that strong presidents must find someone who will carry their flag forward when they can no longer do so themselves. The key to presidential success is . . . succession.

The concluding passages of this 2013 essay, when read alongside my 2008 musings about Hillary Clinton’s dynastic dimensions, place the impending presidential election of 2016 in an interesting and unconventional light. From a conventional (and shallow) journalistic angle, Hillary Clinton looks obviously and entirely dynastic: She is simply a female version of Jack Kennedy, Bobby Kennedy, Ted Kennedy, George H. W. Bush, George W. Bush, Jeb Bush, Jerry Brown, Al Gore, Mitt Romney, and Andrew Cuomo.

But from a constitutional angle—the angle of my 2008 and 2013 pieces—we must recall that earned adult achievements are decisively different from aristocratic privileges inherited at birth or in early childhood. Unlike all the other heirs just mentioned, the baby named Hillary Rodham did not at birth inherit any position of political or economic privilege (or exalted social status, for that matter). Instead, much later in life—and after gaining admission to top schools based on her own hard-won grades and test scores and then re-proving her merit in a series of demanding professional positions—the common-born Hillary Rodham Clinton was handpicked twice (!) as a key presidential helpmate. First, from 1992 to 2001, she was Bill Clinton’s two-for-the-price-of-one de facto running mate and policy adviser. Second, after a successful and high-visibility stint as a U.S. senator, she was Barack Obama’s leading cabinet minister in his first term. Unlike, for example, JFK or Bush 41 or Bush 43, neither of the presidents who handpicked her was himself born into wealth or power or fame. Nor were the presidents who picked her related to her by blood or at birth. Of course as adults, Bill Clinton and she chose to partner up in many ways, with interconnections surely more complex than—but in certain respects not entirely unlike—the strong bonds that linked Washington with Hamilton and Jefferson with Madison. Both President Bill Clinton and President Barack Obama freely and democratically chose to politically team up with Hillary Clinton because both presidents perceived her as an electoral asset and a policy expert.

Seen from this angle, former New York senator Hillary Clinton’s closest counterpart in American politics is not New York’s highborn governor Andrew Cuomo, or New York’s past highborn governors Nelson Rockefeller or Franklin Roosevelt, or New York’s highborn tycoon Donald Trump, but rather New York’s greatest Founding Father, the common-born Alexander Hamilton, Washington’s handpicked helper. (Another not far-fetched analogy is New York’s common-born Martin Van Buren, the handpicked helpmate and successor of common-born president Andrew Jackson.)

IN GENERAL, THIS CHAPTER’S ESSAYS differ in shape and feel from many of the other essays elsewhere in this book that propose specific and immediate legal results or reforms: judicial validation of Obamacare, establishment of direct presidential election, modification of the electoral calendar, abolition of the exclusionary rule, increased transparency of Supreme Court oral arguments, and so on. This chapter’s essays did not presume to tell my fellow Americans exactly how to vote, or for whom to vote. With the exception of “Second Chances”—which did offer specific suggestions to the Obama administration—these pieces had no immediate policy payoff or prescription. Rather, they aimed to broadly refocus the electoral conversation—to urge Americans to consider which results on Election Night would exacerbate dynastic rule in America, and which results might tend to counteract it. This question should not always be decisive in the voting booth. But it should always, I argued, factor into the calculus of thoughtful voters.

So, too, should America’s anti-establishmentarian commitment to religious pluralism and openness, as I argued in passing in an essay on the 2008 presidential candidates, and in a more sustained way in its 2012 sequel when Mitt Romney, a Mormon, made it to the finals.

America’s Constitution is not merely a set of legal commands—dos and don’ts—separating what is legal/constitutional from what is illegal/unconstitutional. The Constitution is also a national narrative, a template for pondering a range of choices, all of which are legally permissible, but some of which may be constitutionally preferable—more in keeping with some of the Constitution’s grand themes as distinct from its clear rules.

THREE OF THE PRESIDENTIAL-ELECTION-YEAR ESSAYS that now form the backbone of this chapter were clearly styled as musings on the unfolding campaigns of 2000, 2008, and 2012, respectively. Another one, “The Dark Side of Camelot,” also offered anti-dynastic election-year commentary but had a slightly different backstory.

With interest in all things presidential running high in the autumn of 2000, the Wall Street Journal asked me to participate in a scholarly survey rating America’s past presidents.¹ When my answers indicated that, in my view, JFK was closer to the middle of the pack than to Washington and Lincoln, the Journal invited me to say why, as part of a series the Journal was running in connection with the publication of its survey results. I suspect that the Journal, with its generally Republican point of view, was gleeful that a card-carrying Democratic scholar would volunteer to take the Kennedys down a notch.

But in expressing anxieties about Jack’s placement of his kid brother Bobby atop the Justice Department in the 1960s, this late-November 2000 essay was also slyly hinting that Journal readers might sensibly wonder whether George W’s team was improperly benefitting from kid brother Jeb’s role atop the Florida government. Thanks to the disgraceful Katherine Harris, a close ally of the Bush dynasty, Florida’s election authorities had illegally purged the voting rolls before the election and were engaging in a wide range of other legally dubious post-election actions. Whether or not the Journal editors saw this Floridian implication, and whether or not most Journal readers in November 2000 saw it, I surely saw it in late 2000—because I see dynasty everywhere.

HERE IS ONE FINAL EXAMPLE of the kinds of questions and insights that a relentless focus on dynasty makes possible: Is it purely a coincidence that Al Gore ran for president in 2000 but Dick Cheney did not in 2008? In the last sixty years, most sitting vice presidents or former veeps have not only sought the presidency when their presidents were no longer in the running but have also won their party’s nomination: Richard Nixon in 1960, Lyndon Johnson in 1964, Hubert Humphrey in 1968, Richard Nixon in 1968 and 1972, Gerald Ford in 1976, Walter Mondale in 1984, George H. W. Bush in 1988 and 1992, and Al Gore in 2000. What requires explanation, then, is not that Gore ran in 2000, but that Cheney didn’t in 2008. I suspect that one key factor was dynastic: Cheney in 2000 was chosen in part because he was loyal to the Bush family and would likely be too old and infirm to run in his own right in 2008—the year slotted for Jeb Bush, had this Bush grandson/son/brother chosen to run. In part because of Iraq and Hurricane Katrina, the Bush dynasty ended up not seeking a fourth term in 2008, but isn’t it noteworthy that George W’s choice of Cheney in 2000 nicely preserved this option?

Isn’t it also noteworthy that Dan Quayle sought but did not get his party’s nomination in 2000? Apparently, the president under whom he served, H. W., had another successor in mind—namely, his namesake, W. Here, too, dynastic issues would seem to be part of the story. Since the mid-1950s, the only other veeps who failed to win presidential nomination were Spiro Agnew (a disgraced felon by the time his chance rolled around in 1976), Nelson Rockefeller (dead when his first chance would have materialized in 1980), and Joe Biden (who had to contend with another Obama handpicked helper, Hillary Clinton, as I discussed in the closing passage of the 2013 “Second Chances” essay).

Summing up all the data, the big outliers are Quayle and Cheney, and the simplest explanation is the Bush dynasty.

U.S. SUCCESSIONS BEGAN WITH GEORGE (III AND W)

LOS ANGELES TIMES, SUNDAY, JANUARY 23, 2000

Our story of father-son succession and the U.S. presidency begins with George the patriarch and the rising George W—that is, with King George III and George Washington.²

As the federal Constitution was being debated in the late 1780s, everyone understood that Washington would most likely become the United States’ first president. But America’s George would be very different from Britain’s George. As The Federalist No. 69 emphasized: “The president of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince.” The U.S. Constitution thus decisively broke with the idea that political office should be handed down from father to son as inheritable property. In Thomas Jefferson’s words, “The mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.”³

Sadly, the Constitution in practice failed to live up to this lofty idea of a republic open to talent and indifferent to blood. Plantation owners’ namesakes were given spurs at birth, and slave children were saddled up. But the Constitution’s language proclaimed a different, anti-dynastic ideal. Here, “We the people” would live out “a republican form of government” based on principles of equal citizenship. In two separate places, the Constitution promised that no “titles of nobility” would be allowed in America. A third clause condemning titles of nobility passed Congress as a constitutional amendment in the early nineteenth century but was never ratified.

George W’s unanimous election in 1789—every member of the first electoral college supported him—reflected the Founders’ strong suspicion of father-son dynasty. Put simply, Washington became father of his country in part because he was not father of his own children. He sired no heirs, and his only stepson died in 1781. Americans could breathe easier knowing that their first general and first president would not try to create a throne and crown to pass on to his namesake. In fact, the man contemporaries most feared was Alexander Hamilton, who often played the role of the son Washington never had.⁴

The history of the early presidency is striking. Thomas Jefferson had no surviving sons, at least no legitimate ones. Ditto for James Madison and James Monroe. John Adams, however, did have a son and namesake: John Quincy. Q’s eventual accession to the presidency can be seen as a transition from a pre-modern world of dynastic succession to the modern world of a democracy open to talent. As historian Gordon Wood has explained, pre-revolutionary America was a world of political patriarchy: “During the half century before the Revolution, more than 70 percent of the representatives elected to the New Jersey assembly were related to previously elected legislators.”

Q’s accession in 1824–1825 might seem a throwback, but it can also be viewed differently. A Phi Beta Kappa graduate of Harvard and, later, a Harvard professor; an accomplished diplomat, fluent in several languages, with decades of experience in foreign affairs, including a successful eight-year stint as secretary of state—here was a man with impressive credentials and prodigious talents in his own right. And Q’s entrance onto the presidential stage occurred a quarter-century after his father’s exit. In 1801, when John the elder left office, Q was not old enough to run—one happy effect, and perhaps purpose, of the Constitution’s rule requiring the president to be at least thirty-five was to limit regency successions of young and irresponsible namesakes.

Having considered presidential Georges and Johns from the Founding era, let’s now turn to our modern presidential Georges and Johns. John F. Kennedy’s electoral victory in 1960 did pose genuine concerns about dynastic succession—mainly issues of sibling rather than father-son succession. Had Robert F. Kennedy or Ted Kennedy become president soon after their elder brother, the world might well have wondered if American democracy was really so different from old-fashioned monarchy. And perhaps John F. Kennedy Jr.’s greatest service to the nation was that he did not try to claim the Camelot crown himself.

If these last points seem overwrought, consider how the rest of the world is still struggling to break free from dynastic succession. Recent years have witnessed father-son transitions in North Korea, Jordan, and Morocco; both Iraq and Syria may soon follow suit. The new vice president and heir apparent in Indonesia is the daughter of a former president; and the leader of the Congress Party in India, Sonia Gandhi, is the widow of one prime minister (Rajiv Gandhi), the daughter-in-law of another prime minister (Indira Gandhi), and the granddaughter-in-law of yet a third prime minister (Jawaharlal Nehru). In turn, Sonia’s daughter, Priyanka, is beginning to build a political following. These familial successions are unfortunate throwbacks to feudalism, even in societies that have elected their leaders “democratically.”

Through their names and their looks, the offspring of great leaders doubtless conjure up images of past glory in the minds of fellow citizens. But a mature democracy should insist that look-alikes and sound-alikes are truly persons of distinction in their own right before being crowned with high office. The history of great families is, alas, often a history of decline.

All this raises questions about our George W. One real cost of electing this namesake to the presidency would be the mixed message about democracy and dynasty it might send to the rest of the world. Granted, dynasty has some virtues: In India, Indonesia, and Pakistan, for example, it has crowned women as leaders of societies otherwise stained by rather repressive policies toward those born with two X chromosomes. Granted, also, Americans must be free to vote for the best person and should not bar someone who happens to be a president’s heir. Rather than a “title of nobility,” an absolute bar would resemble an unconstitutional “corruption of the blood” imposed on children of disfavored politicians.

But we should proceed carefully, lest we open a Pandora’s box that the Founders tried to nail shut by electing their George W. Here are a few suggested guidelines:

First, American voters should distinguish between political dynasties and presidential ones. Gubernatorial, senatorial, and other dynasties abound, but the stakes and visibility of the presidency make it different in kind.

Second, let’s focus on the time lapse between the elder’s exit and the younger’s entrance; dynastic dangers are greatest when these two are close together. (In addition to the Adamses, Benjamin Harrison was elected forty-eight years after his grandfather William Henry, who died after a month in office, and Franklin D. Roosevelt entered office twenty-four years after his distant cousin, Theodore Roosevelt, had left.)

Third, pay extra attention to the credentials and talents of the younger in his own right and don’t assume his upbringing has properly trained him for office by osmosis. Be especially wary when the younger shares the elder’s first name as well as his last name: It’s disheartening when some pundits speculate that George W’s early success in polls reflected confusion between père and fils.

None of this means George W should not be our next president. It does mean he deserves special scrutiny because his accession would raise special concerns about presidential primogeniture. And let’s not forget about W’s politically active brother, Florida governor Jeb Bush. On the other hand, at least George W does not have any sons named George III.⁵

THE DARK SIDE OF CAMELOT⁶

WALL STREET JOURNAL, MONDAY, NOVEMBER 27, 2000, 12:01 A.M. (ET)

I grew up idolizing JFK. My first television memories come from November, 1963. In early 1964, my parents—immigrants from India—bought me a documentary record excerpting Kennedy’s best speeches. I wore its grooves out. I can still recite much of his inaugural address.

But as a student of constitutional law over the last twenty years, I have come to see another, less inspiring, side of Camelot.

Begin with Kennedy and the courts. To appease southern Democrats, he stocked the lower federal bench with some notorious segregationists who proceeded to trample the Constitution. His first southern appointee, Harold Cox, was recently described by civil rights crusader Jack Greenberg as “possibly the most racist judge ever to sit on the federal bench.” Similarly, Pulitzer Prize winner Taylor Branch has noted that “the best civil rights judges in the South were Eisenhower appointees; the most egregious segregationists were Kennedy’s.” Publicly, Kennedy pooh-poohed the problems created by his judicial appointees, and even commended these judges at a March 1963 press conference.

JFK’s two picks for the Supreme Court were better, but ultimately disappointing. Arthur Goldberg stepped down after only three years. Byron White sat for more than thirty, but somehow managed to write no truly towering opinions and leave almost no legacy. No great idea bears White’s name. His most famous decision, deriding gay rights in Bowers v. Hardwick, was simultaneously hard-hearted and softheaded.

Now turn to JFK and civil rights more generally. His account of Andrew Johnson’s impeachment in Profiles in Courage