The Art of Amending

Article 2 of the U.S. Constitution clearly states that "in the case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President." But what constitutes presidential disability? Who judges it? What would have happened had John Kennedy not been killed by an assassin's bullet but had lived on, seriously injured?

Vice Presidents have long hesitated to stand in for disabled Presidents. In 1881 the country was leaderless for the 80 days that Garfield lay dying. During Wilson's breakdown, 28 bills became law by default of any presidential action. Though a "committee" of Cabinet and White House staff members car ried on after Eisenhower's heart attack, Vice President Nixon warned that it might have failed "had there been a serious international crisis requiring presidential decisions."

Power & Principles. Last week the Senate finally faced up to the problem and passed (72 to 0) a proposed constitutional amendment giving Vice Presidents full power until disabled Presidents recover.* Sponsored by Indiana Democrat Birch Bayh, the amendment provides that if a President fails to make known his inability, the Vice President could take over "with the written concurrence of a majority of the Cabinet or any other body specified by Congress." If a still unrecovered President tried to return, the Acting President and the Cabinet would have seven days in which to ask Congress to "proceed to decide" the issue. To retain power, the Acting President would need a two-thirds vote by both houses of Congress.

When the Administration-backed proposal reaches the House it will face more of the same sort of opposition it survived in the Senate: the argument that the problem should be solved by statute rather than constitutional amendment. Critics note that statutes, unlike amendments that contain rules as specific as those in the Bayh proposal, are easily revised to meet changing needs. "The strength of the Constitution rests upon its broad statement of power and principles," says Minnesota's Democratic Senator Eugene J. McCarthy. "It is not weighed down with detailed procedural provisions."

Unfortunately, though, the Constitution does not clearly empower Congress to handle presidential disability by statute alone. Indeed, Bayh backers argue that such a statute might worsen the next disability crisis because it would be open to constitutional challenge. By contrast, an amendment becomes part of the Constitution, and Congress would have the right to pass later disability legislation if necessary.

In at the Gate. Even so, McCarthy & Co. have called welcome attention to the fact that amending the world's oldest written Constitution is no light matter. The framers limited the Constitution mainly to enduring principles and made amendments difficult. Under Article 5, proposed amendments can be launched in only two ways: by a two-thirds vote in both houses of Congress (the only method successfully used to date), or by application of the legislatures of two-thirds of the states for a convention called by Congress to pro pose amendments. In either case, ratification comes only after approval by legislatures or conventions in three-fourths of the states. Ever since 1791, when the first ten amendments (called the Bill of Rights) came in at the starting gate, this process has yielded only 14 more amendments.

During that time, an estimated 6,119 amendments have been proposed, some of them ludicrous. In 1893 one Congressman suggested renaming the U.S. "the United States of Earth"; in 1937 another proposed that war be declared by popular referendum. Current proposals range from abolishing income taxes to giving Congress authority to override any Supreme Court decision.

National Debate. The hardy perennial among proposed amendments calls for equal rights for men and women, a 450-time loser since 1926. The late Senator Estes Kefauver was author of 35 proposals, but the heavyweight champion is New York Democrat Emanuel Celler, at last count author of 49 amendments. By contrast, Senator Lyndon Johnson originated none at all.

Four amendments that passed Congress and went out to the states for ratification never did get ratified, including an 1809 proposal to bar Americans from accepting foreign titles of nobility. A fifth--giving Congress authority to regulate child labor--went to the states in 1924, is still ten states short of ratification. Starting with the 18th (Prohibition), most proposed amendments have carried a seven-year time limit for approval. This was no problem for the 21st Amendment; it swept through in less than ten months for the happy reason that it repealed the 18th. Fastest of all: the twelfth (separate electoral vote for President and Vice President), which in 1804 set the record of 187 days. Slowest: the 22nd (limiting Presidents to two terms) which took almost four years to get the nod in 1951. Newest of all: the 24th (barring poll taxes in federal elections), ratified 13 months ago. The U.S. Constitution is so hedged against change, yet so open to new interpretation, that lawyers and scholars favor amending it only in extreme circumstances. Presidential disability may well be such a circumstance, but as Chief Justice Earl Warren cautions:

"Any serious effort to amend the Constitution should provide the occasion for a great national debate."

* It also provides that when a Vice President succeeds a deceased or removed President, he shall nominate a new Vice President who will require confirmation by a majority of both houses of Congress.

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