From noted Philadelphia lawyer Arline Jolles Lotman comes a cogent and thought-provoking commentary on the true meaning and purpose of the State of the Union and how we may be able to avoid some of the controversies that have recently surrounded this annual event:
A local Philadelphia political writer once came to the astonishing conclusion that something is wrong with the response of the opposing political party to the President’s State of the Union address.
However, the commentator failed to identify what was wrong probably because no journalist had bothered to research the origin of the State of the Union that is constitutionally mandated in Article II, Section 3, which reads in part:
He [the president] shall from time to time give to the Congress information of the State of the Union, and recommend for their consideration such measures as he shall judge necessary and expedient.
Nothing in the Constitution or custom authorizes or requires a partisan response.
Commentary comes later-as well it should.
This notion of responding is one more media attempt at “being fair”, when fairness in this special case is actually an excuse to pander to the public at precisely the moment in history when the Constitution requires a report from only the Executive branch to Congress (and by extension, the public following the adoption of the First Amendment).
We citizens must and should support the First Amendment guarantee of a free press.
But the undermining (knowingly or unknowingly?) of the office (not of the occupant) of the presidency needs to stop.
Now it is the free press, or at least the electronic, inter alia, media’s turn, to support Article II, Section 3. In 1993, when a Democrat, Bill Clinton was president, then Governor of New Jersey, Christine Todd Whitman, a Republican, held the first open “audition” as a possible presidential candidate, following President Clinton’s State of the Union address. Governor Whitman even quipped that she "didn’t want equal time,” thereby suggesting she was entitled to any time and that the President had taken too long to address the Congress and the American people, thus helping to diminish the President’s message. [Note: the Democrats have likewise “auditioned’ when Republicans hold the Office]
Yet, nothing in the Constitution authorizes or requires the press to give equal time to a constitutionally mandated report by the Chief Executive. The Fairness Doctrine does not apply to this duty by the president. On the contrary, the Founders thought this report to be so fundamental to an open and free society, that they enumerated it among the specific presidential duties in the Constitution.
When the misplaced concept of “equal time” is invoked –as if this were just a continuation of the election process requiring an opposing point of view- we, as a nation damage the institution of democracy. Far more importantly, and more dangerous, we have made one part of the governance meaningless by stripping the Executive branch of its due respect-and by extension, its power.
By linking the State of the Union to sound bites and partisan response (the Framers could have easily written such a requirement into Section 3-but they did not), is to devalue the President; devalue the presidency; offend the separation of powers doctrine and bring unhealthy skepticism to the public.
This is entirely contrary to the constitutional mandate to hear from the incumbent and to hear from him or her as the single voice of the nation in that moment in time. There is more than ample time and opportunity to critique the Address; and more than equal time to hear from the critics. But we need to hear from them in a legitimate public forum, not at this precious moment of proffering our history, our destiny and our future.
What I fear is becoming irretrievably lost is the majesty and grandeur of the Constitution unfolding before our eyes, and the notion that our president, whoever he or she may be, is truly the leader of our nation, whether we like it or not. This encourages respect and faith in our government. It sets the tone for the coming year’s administration. It brings hope and renewal to our people, and it invites respect for and from the other two co-equal branches of government by their powerful but silent presence.
But when we ridicule the President’s message, or even offer alternatives made by the opposition contemporaneously, with the Address, we lose that accountability; that splendid moment when, we the people, have the absolute right to hear our president report to our Representatives and our Judiciary; not to the governor of a populous state; nor to a presidential wannabe; or telegenic politician: this isn’t “Hardball.”
Perhaps this assault on the last demonstrable frontier of representative democracy reflects the true state of our Union after all: government by Gallup poll. We can hope that this electronic media meddling will end and the office of the presidency can begin again to be shown proper respect by us all-including the present occupant- and regardless of who that may be in the future.
It is clearly past the time that we as attorneys, public policy framers, educators, need to convene a meeting with the media representatives to help them understand the constitutional mandate that they are inadvertently undermining in their mistaken belief that partisanship( under the pretext of “fairness”) is more important than preserving the institution of a constitutional form of government. They have framed the question wrongly: it is up to us to put it right. We as lawyers, are, after all, custodians of the law and, sworn to uphold the Constitution.