When unintended consequences undermine ‘enduring impacts’

OPINION:

Two well-known Indiana senators died recently — 87-year-old Richard Lugar, a Republican, last month, and 91-year-old Birch Bayh, a Democrat, in March — and the obituary tributes were revealing in their way.

Sen. Lugar, who straddled the millennium as chairman of the Foreign Relations Committee, was respectfully remembered by The New York Times for his work in dismantling leftover nuclear arsenals in the old Soviet empire. His efforts, The Times noted approvingly, “ran counter to the inclinations of many of his fellow Republicans” — which, roughly translated, means that Sen. Lugar, who had been a popular and effective mayor of Indianapolis in the 1960s/’70s, had successfully overcome his reputation as “President Nixon’s favorite mayor.”

There was no such equivocation about Sen. Bayh who, incidentally, had defeated Mr. Lugar in the latter’s first campaign for the Senate. Mr. Bayh had been elected a dozen years earlier (1962), ousting a longtime Republican incumbent, and his comparative youth at the time (36), liberal credentials, and close identification with President John F. Kennedy made him a perennial presidential prospect. But it never quite worked out. Mr. Bayh was a better statewide than national candidate, and when he was swept out of office in the 1980 Reagan landslide by future Vice President Dan Quayle, Mr. Bayh’s future, and his New Frontier/Great Society politics, were assumed to be past.

Of course, that is not the way The Times saw it, preferring to perceive a legislator who had an “enduring” — and presumably salutary — “impact on American life.” Strictly speaking, in his relatively truncated Senate career, Mr. Bayh did have an effect on American life. Whether that effect was salutary, however, is a question The Times doesn’t ask.

For Mr. Bayh’s “impacts,” especially those with contemporary resonance, are worth debating. He was an early and passionate critic of the Electoral College, for example, which he saw as an obstacle to his party’s preeminence. And in 1969 he led the personal and largely unprecedented charge against Nixon’s distinguished Supreme Court nominee, Judge Clement Haynsworth of South Carolina, setting the stage for future confirmation warfare.

Sen. Bayh was also chief sponsor of the unsuccessful Equal Rights Amendment, in its 1970s heyday, as well as Title IX of the Education Amendments Act. To be sure, the virtue of these gestures on behalf of equality may largely reside in the eye of the beholder: The ERA has served as a template for the identity politics that have so poisoned and subverted contemporary civic life; and Title IX has been just as injurious to certain amateur athletes as helpful to certain others, as well as one means by which the federal government now distorts and politicizes higher education.

In that sense, and especially in terms of his successful crusades, Mr. Bayh’s “enduring impact” may well be perceived as a lesson in the law of unintended consequences.

Consider, for instance, the 26th Amendment to the Constitution, which lowered the voting age from 21 to 18, and which Mr. Bayh championed and led to adoption (1971) in near-record time. In the Age of Aquarius it was widely, and mistakenly, assumed that the youth vote was a giant, untapped Democratic constituency. Yet in the year after ratification, 18-to-21-year-old presidential voters swung decisively to Nixon, and not his Democratic rival George McGovern, just as newly-enfranchised women voters embraced Warren G. Harding, Republican, not James M. Cox, Democrat, in 1920.

Proving that the historical memory of statesmen is comparatively limited, Mr. Bayh’s congressional successors are now contemplating reducing the voting age to 16.

Most instructive, however, is the 25th Amendment (1967) on presidential disability, which Mr. Bayh largely drafted and skillfully maneuvered into the national charter. Its rationale was the constitutional succession in the wake of Kennedy’s assassination (1963). President Lyndon Johnson had suffered a near-fatal coronary just eight years earlier, and next in line on the White House threshold stood the 72-year-old Speaker of the House (John McCormack of Massachusetts) and the 86-year-old President Pro Tempore of the Senate (Carl Hayden of Arizona).

So horrifying was the prospect of this geriatric leadership that Sen. Bayh crafted his amendment to allow incumbent presidents to nominate vice presidents in the event of vacancy, as well as facilitate the removal of “disabled” presidents. As if on cue — and less than a decade from its panicked ratification — the 25th Amendment permitted President Nixon, in the midst of the Watergate scandal, to designate his successor (Gerald Ford) upon the resignation of his disgraced vice president (Spiro Agnew). When Mr. Nixon quit office, President Ford in turn appointed his own vice president (Nelson Rockefeller), leaving the country with a president and vice president, neither of whom had been elected by popular or electoral vote.

It’s worth mentioning, too, that the aged Speaker McCormack outlived LBJ — Sen. Hayden nearly did as well — and that Donald Trump’s congressional adversaries now cite the presidential-disability amendment in their efforts to unseat him by irregular means. Some “enduring impacts” are better than others.

• Philip Terzian, former writer and editor at The Weekly Standard, is the author of “Architects of Power: Roosevelt, Eisenhower, and the American Century.”