Super Lawyers
William C. Altreuter

Monday, November 29, 2021

 I'm presently reading Birch Bayh's One Heartbeat Away, a meticulous account of how the 25th Amendment was drafted and enacted. Bayh had in mind fixing several Constitutional gaps: the problem of Presidential disability, Presidential succession, and Vice-Presidential vacancies. All three problems were fresh in his mind: of course the Kennedy assassination was still raw, but Eisenhower's heart attacks were as well. Unmentioned is Johnson's cardiac health. One of the chief items that was debated was how specific the language of the amendment should be, and there was also some concern that it tried to do too much all at once. Bayh is good on the strategic issues, and I am struck by how the process and procedure he used informed his later efforts at abolishing the Electoral College. I got to see some of the later process, and in hindsight the cultural war that we are living in now was already becoming entrenched. 

So what can we say about whether the 25th Amendment works as intended? Naturally Nixon figures prominently in Bayh's book: he and Ike had a letter agreement that outlined how Nixon would conduct business during Ike's illness - an obviously slapdash approach. The 25th got its first workout with Agnew's resignation and Ford's appointment, and then with Ford's ascension and Rockefeller's appointment. And then? And then a key assumption of Bayh's proved optimistic- and possibly fatally so. 

In my Structure and Function of US Government course I emphasize to my students that the drafters of the Constitution assumed that the (rich old white) men who would occupy the government they were creating would mostly be acting in good faith, but that mechanisms to keep the government operating needed to be in place because of their recognition of the fallibility of even the most well-intentioned actors. It seems to me that Nixon's final days, Reagan's second term, and Trump's entire tenure are arguments that the Presidential disability question has not been solved, although I suppose in the latter instance it was arguably the impeachment process that failed. On the other hand, the process has worked out adequately when Reagan was shot (Al Haig not withstanding), and routine medical processes. The whole thing deserves a deeper dive, which I want to get to when I've finished my Sonny Rollins project. 

A couple of assorted points that probably won't make it into anything I may write on this for publication. First, some of the  worst Americans of the second half of the 20th Century are featured prominently here, and Bayh, who was in his first term in the Senate and had larger aspirations (what Senator hasn't?) doesn't have a critical word to say about any of them. James O. Eastland is a kindly grandfather type, Nixon is skilled and intelligent  (actually true, but beside the point). Second, I'm pretty sure the only woman that appears is Bayh's wife, Marvella. Third, if there is a single person of color in this narrative I must have missed him. (It goes without saying that if there is it would be a man.) And, this may be a cheap shot, but my word Birch Bayh is a clumsy writer. This book is a really valuable piece of history, but the story deserves an artist. Robert Cairo has demonstrated that writing about the legislative process can be exciting and wonderful to read. I yield to no-one in my respect and admiration for Birch Bayh, but I now know that he wasn't any kind of prose stylist.

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