Not an endorsement, really...

Students of constitutional history need to monitor the actions of the next president--whomever he may be--over his first six months in office. Both the candidates have signaled their desire to end the executive excesses of the Bush Administration and restore something like dignity to the notion of constitutional government. Given that warrantless wiretapping is still an open issue, Guantanamo Bay remains open, and unaccountable military actions seem the norm these days, it is an enormously important that our next president demonstrate self-restraint. At the same time, the Congress is going to have to grow a pair if it is ever to restore constituional balance to the system. Back when revelations of George W. Bush's mendacity concerning the war in Iraq were coming to light, only Arlen Specter (a republican from Pennsylvania) talked seriously and openly about the possibility of impeachment. It would be nice if Congress prepared to defend its constitutional prerogatives, especially the power to declare war.

Meanwhile, I still harbor tremendous doubts about the Republican choice for President. Sadly, much of this comes from McCain's selection of Sarah Palin, who has now been identified by some as the "hope" of the Republican Party. If this is true, then the Republican Party deserves the drubbing it will receive on November 4. It deserves to become a permanent minority party. As George Will--in something a little more than a statement of good will and a little less than an endorsement of Obama--put it:

Some polls show that Palin has become an even heavier weight in John McCain's saddle than his association with George W. Bush. Did McCain, who seems to think that Palin's never having attended a "Georgetown cocktail party" is sufficient qualification for the vice presidency, lift an eyebrow when she said that vice presidents "are in charge of the United States Senate"?

She may have been tailoring her narrative to her audience of third-graders, who do not know that vice presidents have no constitutional function in the Senate other than to cast tie-breaking votes. But does she know that when Lyndon Johnson, transformed by the 1960 election from Senate majority leader into vice president, ventured to the Capitol to attend the Democratic senators' weekly policy luncheon, the new majority leader, Montana's Mike Mansfield, supported by his caucus, barred him because his presence would be a derogation of the Senate's autonomy?

Perhaps Palin's confusion about the office for which she is auditioning comes from listening to its current occupant. Dick Cheney, the foremost practitioner of this administration's constitutional carelessness in aggrandizing executive power, regularly attends the Senate Republicans' Tuesday luncheons. He has said jocularly that he is "a product" of the Senate, which pays his salary, and that he has no "official duties" in the executive branch. His situational constitutionalism has, however, led him to assert, when claiming exemption from a particular executive order, that he is a member of the legislative branch and, when seeking to shield certain of his deliberations from legislative inquiry, to say that he is a member of the executive branch.

McCain has been careless in this campaign, and it does not bode well for America should he be elected. He seems to fly by the seat of his pants, makes decisions from the gut, and has abandoned his former virtues of moderation, independent thought, and coolness. The Economist opined the same sentiment when it endorsed Obama earlier this week--the editors clearly pined for the old McCain, but cannot see him leading in any real way as President.

As a constitutional scholar concerned about the preservation of rule of law in this republic and the advancement of human rights worldwide, it matters less to me who is president than what the next president does. Personally, I can't wait until this election is over. It has been exciting, but it is quickly approaching tedious. I'm looking forward to casting my ballot on Tuesday. I'm then looking forward to holding whoever is elected to account for his actions for the next four years. And I would like to see some constituitonal history in the making, reversing the trends begun by Bush, Cheney, and that lawless crew that has run the White House like it was a biker bar for the past eight years.