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Scripts We Live by
The Constitutional Scenario for Harassing Presidents
To help us make sense out of the contradictions in our lives, we depend
on scripts that serve both as a guide to action and a way to explain what
happens to us. For Americans, the contemporary scene is often understood
as a kind of soap opera in which good guys battle bad guys -- often
the bad guys are on top but, in the long run, the good guys finally win
out, giving this script an ultimately optimistic color. Such scripts provide
role models for us, and help us understand both the small-scale events
in our personal lives and the larger-than-life public affairs reported
in the mass media. Culturally dominant scripts are continuously reinforced
by the day's news and public commentaries just as episode follows episode
every day in our favorite soaps. The current torrent of presidential harassment
is widely understood in terms of this script as we see the independent
counsel and his people grappling with the president and his people. Perhaps
the chief difference between this script and soap operas is that there
is no general consensus on who the bad guys and the good guys are. For
a psychological analysis of the role of scripts in our lives, see Claude
Steiner's Scripts People Live (New York: Grove Press, 1974).
Contrasting Scripts. The soap opera script trivializes tragic
events that have ominous consequences for America and the world. Its
strength blocks consideration of deeper issues that need to be understood
as a basis for grasping the true significance of these portentous
happenings. But it is not the only possible script. An alternative that
might help us is found in all the classical Greek tragedies. In
these dramas, natural or supernatural forces trap humans in no-win
situations in which, ultimately, everyone loses and there are,
fundamentally, no "good" or "bad" guys -- just
victims. That's why we call them tragedies. No matter how we struggle
against the odds, in the end we are lost. Such a script is deeply
repugnant to the cheerfully up-beat mood that prevails in the American
culture. However, in view of what is happening on many fronts in the
world today, do we not need to confront this alternative scenario?
To illustrate this point, consider the well-known story of Oedipus who
killed his father and married his mother, following ominous leads attributed
to the Delphic Oracle -- they foretold dire events the protagonists struggled
mightily to prevent (for those whose memories of this myth are vague, a
brief synopsis is appended as a footnote, plus a comment on its Freudian
reinterpretation under the heading, Oedipus Complex). In our secular
age, we need not give credence to the Fates or Olympian gods as the basis
for our tragic dilemmas but, instead, we do need to think about the fundamental
rules of conduct that shape our political system and provide the constraints
or options that determine what we can and cannot do. Some of these constraints
are found in our man-made laws, such as the legislation that created the
office of Independent Counsel; but others are more deeply rooted in the
American Constitution which sets the parameters for adopting and enforcing
our laws. Like a Greek tragedy, they provide the contexts within which
we must make decisions that so often frustrate our hopes and produce such
melancholy results. To understand our situation, we need to pay as much
attention to these underlying constraints or parameters as we do to the
resulting actions. Both are necessary and reinforce each other, but we
deceive ourselves when we focus only on the latter.
The Constitutional Constraints. No doubt the institutional
framework is sometimes mentioned. Consider the following statement by
Greta Van Susteren, co-host of the TV show, Burden of Proof. She
"If you understand the rules of sports, or the rules of driving,
you can understand the law. If it is explained in plain English, rather
than legalese, it is easily understood. On Burden of Proof, Roger and I
simplify the law - as it really is."
The full text can be found on her Home Page. Unfortunately, although Van Susteren points to the Law as it affects our conduct, she ignores the Constitution which, of course, provides the ground rules for all enacted legislation and prescribes the structural relations between the major branches of our system of governance. The harassment of presidents is a predictable outcome of key provisions of the Constitution and is as much responsible for the current tragedy as were the Furies in the Oedipus myth. The main difference is that we, the American people, are responsible for perpetuating the dysfunctional rules which now oppress us, whereas Oedipus was victimized by supernatural forces beyond his control.
The essence of our predicament can be found in two provisions of our
Constitution. The first and most fundamental involves the separation of
powers between three equally authoritative branches -- Executive, Legislative,
and Judicial. The key provision prescribes a fixed tenure of office for
the President who cannot be discharged by a no-confidence vote of the Legislature.
This archaic rule prevails in no other industrialized democracy. In all
of them a parliamentary majority confronting a minority-based chief executive
(prime minister and cabinet) is able to replace the Government with one
of its own leaders by a simple vote of no confidence. Actually, this kind
of constitutional system is very well known in America because it prevails
in virtually all public corporations where the CEO can be discharged by
an elected Board, and in many American cities where a Manager is held accountable
to an elected Commission. Only at the higher levels of government do we
insist on maintaining a system in which the Chief Executive cannot be discharged
by the elected legislature.
To understand the dysfunctional consequences of such a system, consider
that all the 30 or so countries that have replicated the American model
have experienced breakdowns leading to military rule or presidential authoritarianism.
Moreover, they have not successfully industrialized, a fact that may be
the result, not the cause, of their flawed constitutional system which,
after all, antedated the Industrial Revolution. In fact, the constitutional
rule prescribing a separation of powers invites logjams, anarchy, and autocracy
and, except in the American case, blocks economic growth. The fact that
the U.S. constitutional regime is exceptional and has lasted so long is
truly remarkable, yet it has attracted almost no attention. However, I
believe it can be explained by significant practices that I have attempted
to identify elsewhere: see "Presidentialism in Comparative Perspective,"
in Comparing Nations: Concepts, Strategies, Substance. Edited by
Mattei Dogan and Ali Kazancigil. (Oxford, UK: Blackwell, 1994) pp.72-152.
Among the many practices, one that has contributed to the survival of
American democracy has been a tradition of respect for the presidency that
long led to Congressional restraint, even when the party in opposition to
the President's party held a majority in Congress. This restraint has
eroded in recent years, however, leading to growing attacks on each of our
recent presidents, culminating in the fearsome harassment of President
Clinton that we are now witnessing. This fact was recognized and deplored
recently by the leaders of the Senate Judiciary Committee, Orrin Hatch and
Pat Leahy, speaking in a television broadcast. Although the Independent
Counsel has now become the spearhead for this attack, we cannot blame
Kenneth Starr personally for a structural cancer on the body politic that
he did not design. That cancer is itself a result of the growing
frustrations experienced by any majority opposition party, whether
Republican or Democrat, that has sought means to enhance its power and
implement its policies when confronted by a president likely to veto its
most treasured measures. The Congressional statute creating the
Independent Counsel not only empowers but motivates this office to search
relentlessly for any personal flaws of character or conduct that could
provide plausible grounds for impeachment.
This brings us to the second Constitutional rule that explains our present predicament. The provision that impeachment should be based on high crimes and misdemeanors by a president is an invitation to this abuse. No doubt any opposition majority would prefer to oust the president because of policy differences -- conflicts involving taxes, education, health, public works, economic policy, etc. -- rather than his personal behavior. Anyone who has been elected by the people and, presumably, retains their confidence by virtue of political performance, must be a formidable foe and those who demand impeachment may suffer as much as the target does. However, since impeachment is not authorized by the Constitution on any substantive grounds, important policy differences between the Congressional majority and the Chief Executive are ruled out of bounds. Consequently, although the primary responsibility of all elected officials is to represent their constituents and do their best to govern well, the fate of our chief executive can hinge on his human errors or personal failings rather than his political policies and leadership. This option is not the result of anyone's political preferences -- rather, it is predetermined by our Constitution whenever the Congressional majority is in opposition to the President's Party. Like the actors in a Greek tragedy, their choices are limited by external forces over which they have no control.
Impeachment as a Pretext. No doubt there are times when a president's misconduct can really threaten the national welfare and, in such cases, bi-partisan support for impeachment makes this a feasible option -- although in the familiar Nixon case, the president's decision to resign forestalled actual impeachment. In the normal case, however, when the threat of impeachment reflects only the exasperation of an opposition party against a president, it seems most unlikely that any bill of impeachment can win a large enough majority to succeed. Moreover, if the goal of impeachment is to bring an opposition party to power in the executive office, it has to fail because a vice president belonging to the president's party will succeed him, another constitutional stipulation. Clearly, on its face, our Constitution invites personal attacks on the President by an opposition majority, but this choice provides no remedy for the inability of a majority in Congress to hold the chief executive accountable.
If the American Constitution offers no way for an opposition majority to replace the president with one of their own supporters, and impeachment offers no solution because it cannot change the partisan affiliation of the Chief Executive, we face a puzzle: how can we explain the energy with which efforts to impeach the president have been pursued? I believe we need to think of a hidden agenda or sub-text that can explain these efforts. The best term to describe this strategy is harassment: when sustained personal attacks on a president by an opposition party are seen as a way to enhance their prospects for an eventual electoral victory, we can understand that this is the sub-text for the pre-text which hangs a Damocles Sword over the White House.
We use harassment in many contexts to refer to hostile or abusive conduct against a person but we do not use it to refer to attacks on a president. Ironically, although we can adopt laws designed to protect ordinary citizens against sexual and other forms of harassment, we cannot use such a law to protect our President. Again, look to the Constitution: the right to criticize those in authority is constitutionally protected under the First Amendment. As the experience of other regimes demonstrates, however, such a textual injunction depends for its success upon enforcement by parties able and interested in its implementation.
The separation of powers, again, provides such a mechanism since the
Supreme Court has a vested interest in preventing the President from
limiting the exercise of Congressional power in order to safeguard its own
judicial supremacy as manifest in its right to interpret the Constitution.
Parliamentary regimes lack such a mechanism because, ultimately,
Parliament can re-make the Constitution as it can remove the chief
executive. Since Parliamentary majorities have an interest in the success
of their own Government, they will not harass their own leaders on
personal grounds, and Parliamentary minorities scarcely have the power to
do so. In the American case, however, although Congress may make laws
designed to protect private citizens against harassment, it is unlikely to
bind itself not to harass the President. As in the Greek scenario, one of
our most treasured rights, freedom of speech, can boomerang against our
system by undermining the president's capacity to lead the nation.
Adverse Consequences. We need to be clear about the adverse consequences
of presidential harassment. Perhaps most importantly and immediately, they
hamper his ability to govern not only by distracting his attention but
also by intimidating him and compelling caution where strong leadership
may be needed. A president vulnerable to paranoid suspiciousness could
be completely disabled by such attacks -- as Nixon may well have been.
By contrast, President Clinton seems able to maintain his composure and
focus on his presidential responsibilities while suffering relentless personal
attacks under the continuous threat of impeachment.
A second result has longer-term implications since the growing likelihood of severe harassment could lead good candidates for the presidency to refuse a nomination. Although there are no doubt a few saintly persons against whom no personal charges could ever be made, most of them would not be eligible candidates for the presidency. The ambition, intelligence, and energy required of any American president can typically, I believe, only be found in those who are vulnerably human -- all of them, I think, have made mistakes they would like to keep secret. Every president could, in fact, be hounded by a special prosecutor intent on "getting" him. Unless a way can be found to mute the furor of presidential harassment, it seems likely that future presidents will be timid souls incapable of leadership because they will be more concerned about protecting their reputation than exercising effective political power.
A third consideration involves the whole apparatus of governance which,
in the American system, is highly dispersed in many agencies that have
good reasons to work at cross-purposes with each other. The separation
of powers is a primary reason since, in practice, public officials need
to be responsive to a large number of legislative committees and judges
in addition to their own constituencies and professional norms. There is
only one organ of government that has a good reason to seek integration
among competing public agencies in order to serve the general interest
more effectively and that is the office of the President. However, when
the president's authority is undermined by harassment, his ability to use
both personal leadership and his White House staff to promote more coordinated
public administration must suffer, thereby victimizing everyone.
Finally, consider the effect of presidential harassment in foreign policy. As a result of the recent transformations in world politics that have left the U.S. as the sole remaining "super power," and have opened the door for a large number of localized conflicts throughout the world, it is increasingly important for the United States to play a global leadership role. Such a role, however, is seriously damaged by presidential harassment. Even friends of the U.S. are revolted by what strikes them as prudish irresponsibility or political recklessness. Enemies of American power and policies are emboldened to mount attacks, including acts of terrorism against U.S. Embassies and other public buildings. Because, in many minds, countries are epitomized by their leaders, whatever damages the American president also harms America's ability to act effectively to support peace and democracy in the world.
Remedies. What, then, can be done to overcome the structural forces that lead to presidential harassment? The most obvious but inconceivable change would require a transformation of our constitutional system in the direction of parliamentarism. However, since such a far-reaching change seems completely impractical, for a variety of reasons, we may ask whether or not some other steps might be both practical and beneficial. One would surely be abandonment of the Independent Prosecutor act. Since both Republican and Democratic presidents can suffer from this novel and uncontrollable institution, and only a transitory opposition majority seems to benefit from it, all members of Congress may realize that in the long run it reflects a political miscalculation that should be corrected.
However, a general change in both public and Congressional attitudes
is also needed. In order to bring about such a change, do we not need to
abandon our soap opera script and embrace a neo-Greek perception that recognizes
structural forces which impel human conduct and generate undesirable behaviors?
They produce the basic rules which undergird the laws and practices that
Greta Van Susteren and Roger Cossack seek to explain. Perhaps if we began
to examine the constitutional foundations of our political system, we might
welcome a script shift from Soap to Greek that we so desperately need.
No doubt the Burden of Proof show is only a symptom -- many other
media people, commentators, talk show hosts, columnists, and analysts in
all the mass media could, if they wished, generate a broad understanding
of how our current constitutional system provokes behaviors that are deeply
dysfunctional for the maintenance of democracy in America. Short of changing
the system, they could mobilize resistance in Congress as well as in the
general public to the practices that not only harass presidents but demean
and impair the interests of all people everywhere, especially within the
United States. They simply need to start asking out loud why we find ourselves
in the mess we are now in rather than just reporting the day-to-day developments
in this soap-like drama.
To launch such a transformation, we need some opinion leaders or public
figures who can effectively raise these issues and launch the dialogue
needed to initiate the process. As noted above, a promising opening was
recently provided by Senators Orrin Hatch and Pat Leahy, speaking as leaders
of the Senate Judiciary Committee, when they said they thought harassing
the president had gone too far. They mentioned the "constitutional
implications" of this process which, they said, had preceded the Clinton
administration but had now reached heights (or depths) that require serious
consideration. However, they failed to mention any provisions of the Constitution
that relate to presidential harassment. I hope they will seriously examine
these constraints. Perhaps if they held public hearings on the subject,
some Constitutional lawyers or scholars could draw attention to them. We
should, I think, encourage them to act along these lines. As a small gesture,
I wrote these Senators a letter which readers may find at Harassing
the President. Hopefully, others who accept the validity of this line
of reasoning will add their voices. We urgently need a script change that
pays serious attention to the institutional forces that generate the growing
threat of presidential harassment. As the Lawinsky matter comes to a head,
now may well be the right time.
In our contemporary usage, the Oedipus story has been
rewritten as a soap opera script. Sigmund Freud gave the name, Oedipus
Complex, to a son's fixation on his mother and jealousy of his father.
This version parodies the myth because Oedipus himself had no hatred for
his father nor love for his mother since he was unaware of their identities.
No doubt Freud was well aware of this difference but, according to Erich
Fromm, he thought the secret code of the myth could be deciphered by
a psychologist (Patrick Mullahy, Oedipus: Myth and Complex.
New York: Hermitage Press, 1948, p.ii). One could argue that Freud merely
substituted the Libido for the Furies as the external force that provokes
However, in popular usage, we have come to think of any son experiencing the Oedipus Complex as willfully choosing to act immorally, as a "bad guy" rather than a "victim." After all, most sons are not drawn sexually to their mothers nor are they jealously hateful of their fathers. Thus the Freudian account has been recast as a soap opera in which humans are fully responsible for their own actions and their consequences. No effort is made to discern such external forces as an archaic Constitution that motivates and limits our choices. Instead, a voluntarist script in true Soap Opera form is now being enacted every day in a drama of willful decisions made by both the President and his accusers as protagonists while the audience waits with bated breath to find out who will win out when the curtain falls.
See linked pages:  Some thoughts on the constitutional basis for presidential impeachments
An analysis of the relative capacity of different constitutional systems
A bibliography of works by Riggs 
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