- For all of its genius, the U.S. Constitution is not a flawless document.

Some of its shortcomings are well understood.

But it was just in the last 60 years that today's guest helped clarify the constitutional order for presidential succession.

He's John Feerick this week on "Story in the Public Square."

(bright music) (bright music continues) (bright music continues) Hello and welcome to "Story in the Public Square," where storytelling meets public affairs.

I'm Jim Ludes from the Pell Center at Salve Regina University.

- And I'm G. Wayne Miller, also with Salve's Pell Center.

- And our guest this week is an accomplished constitutional scholar who, as a young man, helped develop the 25th Amendment to the United States Constitution.

John D. Feerick is Dean Emeritus and Professor at the Fordham School of Law.

He's also the author of the seminal book on the topic: "The Twenty-Fifth Amendment: "Its Complete History and Applications," now in its third edition.

Dean Feerick, thank you so much for being with us.

- Thank you.

- Well, you know, we mentioned that you are an accomplished and a respected constitutional scholar.

What led you to study law in the first place?

- When I was at Fordham College, I participated in student government activities.

I was class representative, I was vice president of the junior class, and then also vice president of the student body.

And as I looked at the opportunity that was provided to me to serve the students of Fordham College at the time, I thought to myself that being a lawyer would facilitate that interest of mine in terms of a career in government and opportunities to respond to the needs of people one might represent.

- Well, you don't need a rudimentary, more than a rudimentary knowledge of American history to understand some of the compromises inherent in the Constitution.

But as someone who has spent their life studying it in depth, what's the genius of the U.S. Constitution?

- I would point to a few things.

First, it's a written constitution.

Number two, it takes power and it distributes power among three branches of government, acknowledging, of course, the state governments that then existed.

And, number three, it's anchored on the principle of sovereignty of the people.

It's a people's constitution.

- So do you think that the American public today appreciates the Constitution of the United States?

- I would say the public knows that we have a system of law and that there is a document called the Constitution of the United States that's foundational to our structure in terms of our democracy.

- So do you have any sense of how many Americans might have actually read our Constitution?

- I don't really have a sense of that.

I think a large percentage of the population probably hasn't read every word in the Constitution.

There are almost 8,000 words in the Constitution, including the amendments to the Constitution.

So I think that people would be familiar with some aspects of the Constitution.

I would hope it would be a majority of citizens of our country.

- [G. Wayne] So give us a summary of the 25th Amendment and why it was needed and your role in creating it.

- It became necessary to particularize what was in Article II of the Constitution, a presidential succession provision, which left unclear issues having to do with inability of a president, what is inability and who determines inability.

And it wasn't clear as well on the status of a succeeding vice president to the presidency.

And, in history, that played out in the country before the 25th Amendment went into the Constitution in February of 1967.

Left us with confusion having to do with inability of a president.

And also during that period of history, up to when the amendment went into the Constitution, we had a number of situations where vice presidents died in office, where vice presidents who succeeded to the presidency left a vacancy in the office of vice president, and there was no method in the Constitution to deal with that.

So the 25th Amendment was worked through, over a period, as I see it, 10, 11 years, during the Eisenhower administration and then into the next administration.

And it has four sections.

Two sections have to do with inability of a president.

One section has to do with filling the vacancy in the vice presidency.

And another section codifies the practice that took place over the history of the country with respect to what is the status of a vice president who succeeds a president who has died in office.

And the first vice president to do that was John Tyler.

And he established a precedent that, in the case of death, resignation, or removal, of course, we were dealing with death, the vice president would become president for the rest of the term.

And that's made clear and codified in Section 1 of the 25th Amendment.

- Well, so we're gonna go through some of the individual sections in particular.

I wanna talk a little bit though about how you came to be involved in the drafting of the 25th Amendment and the framing of it.

In 1963, you published an article in the Fordham Law Review titled: "The Problem of Presidential Inability: "Will Congress Ever Solve It?"

What were you responding to and what was your argument?

- When I graduated from law school in 1961, I had the opportunity, when I was in law school, to publish an article or two in the Fordham Law Review, a student publication.

And in that time period, I also became aware of President Eisenhower dealing with issues having to do with his possible inability when he had health issues while serving as president.

And I wanted to continue my writing in areas of the Constitution, which I had done when I was a member of the Fordham Law Review.

And I found that subject fascinating, the question of inability of a president.

And I had happened to deal with that issue actually as vice president of the student body at Fordham University when a president who had just been elected by the students of the student body resigned within two weeks of winning the election.

And that precipitated, you might say, a crisis of sorts.

And as the vice president, I had the power to decide: how do you deal with that?

One point of view was there should be a new election, that somebody who had an inability, had just become the president of student body and then resigned, that that's a circumstance that calls for a new election.

I said not so.

Under the student constitution, the vice president succeeds to the presidency.

And that decision by me as vice president was affirmed by the student judiciary at Fordham College at the time.

So I had a particular interest in the subject from that college experience.

So I undertook the writing of an article, and it got published, as you pointed out, in October of '63.

- So October of '63 is still a month before the assassination of then-President Kennedy.

And here we had the country had just elected its youngest president to date.

What was the kind of reception that you received initially upon publishing that article about the need for a clearer path for succession?

- Well, I would say the article appeared a month before the assassination.

It was just another publication.

And I made reprints of it thanks to the Fordham Law Review.

And I sent the publication to people that I thought would have an interest in the subject, which included President Kennedy and his two brothers, Robert and Ted Kennedy.

Also to Richard Nixon.

And also to a few journalists, one being Arthur Krock of The New York Times.

I just thought that before my article got retired to the shelves of a law library that I should make known my point of view to people interested in the subject.

And that really made a difference.

Because, when Kennedy was assassinated, two days later on Sunday in The New York Times, Arthur Krock had an article on the subject of what would've happened if the president did not die but was disabled.

And said there's a very good study that was done of that subject by a lawyer by the name of John Feerick at the Fordham Law Review.

And that was in his column of November 24th, 1963.

- [Jim] Wow.

- Dean, Cold War historians talk, right, about presidential succession during the Cold War and the nuclear standoff between the United States and the Soviet Union at that time.

Was that a factor in your consideration of the 25th Amendment?

- Well, it was certainly a reality.

As a very young citizen, young lawyer at the time, it was in my mind.

But it really wasn't the reason that I thought there should be a constitutional amendment.

And if one goes back to 1881, when Chester Arthur succeeded to the presidency on the death of Garfield, Garfield had been disabled.

He sent messages to Congress saying that this part of the Constitution needed to be clarified.

And that point of view one would find during the Wilson administration and during the Eisenhower administration.

So I was looking at the subject, excuse me, in terms of constitutional reform that was necessary.

And at the Constitutional Convention of 1787, one of the delegates said, and he got no answer, he said the the draft constitution was ambiguous.

It didn't define inability, and it didn't say who determines inability.

- [Jim] Huh.

- So we had a lurking issue there from the start of our constitution that needed to be addressed.

- So you published this piece in October of '63, November of '63 the president is murdered.

By February of 1967, the 25th Amendment has been ratified and is part of the U.S. Constitution.

What did it take to make that happen?

- It took a young senator by the name of Senator Birch Bayh from Indiana who had persuaded the chair of the Judiciary Committee that he was entitled to an opportunity to chair the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee.

He made a commitment to doing this area as a principal undertaking of that subcommittee.

He then reached out to the American Bar Association, and the American Bar Association, independently of that reaching out, also had come to the conclusion that it should address the issue in a special way and make recommendations.

And that special way was a conference on presidential inability at the end of January of '64.

And I was invited because of the article to be a member of that 12-member committee.

And I sat next to Senator Birch Bayh, who came to make a presentation to the committee of his ideas on the subject.

- So when we chatted previously too, you made a particular mention of Senator Bayh.

What was it about his leadership that so stood out to you?

- One, he really wanted to take this subject on as part of being a young senator at the time.

And the committee that he chaired already had had hearings, and Senator Kefauver and Senator Keating of New York were both involved with ideas how to deal with that.

And he sought the chairmanship of the Subcommittee on Constitutional Amendments.

He, as a student, was invested in the Constitution of the United States, I've had him say to me and students that he spoke before at Fordham Law School.

And the American Bar Association, through its public office and its leadership at the time, said, "This is a subject, "even though we had a recommendation on at the time, "we should get a group together "and then work also with the Congress "and see if we could establish reforms in this area."

- So can you expand a little bit on your personal role in ratification?

I'm assuming that it was significant.

- Well, thank you.

When the ABA finished its work at the end of January and made recommendations, and Senator Bayh reflected those recommendations in his proposed constitutional amendment, the American Bar Association set out to promote, excuse me, set out to promote the amendment throughout the country by two major committees.

One was a Young Lawyers Committee, which I was asked to chair.

And I was given a list of lawyers in every state in the country who were young lawyers under 35 years of age.

And a Senior Lawyers Committee, chaired by Eisenhower's Attorney General, Herb Brownell.

And our committee of young lawyers, working with the Senior Lawyers Committee, communicated to the members of Congress the recommendations that had come out of this committee meeting that I mentioned at the end of January of the American Bar Association that Senator Birch Bayh participated in.

And so all over the country, lawyers were educating their members of Congress about the subject.

And that continued when the amendment came out of Congress in July of '65.

And the lawyers also communicated with members of the state legislatures.

And it was probably more lawyer activity than I've ever understood was possible.

And I think that made a difference.

At the time, right after the... We're back in '64, '65, and it's in Congress, the idea of a constitutional amendment.

And Senator Bayh reached out to the members of the Senate and got a lot of sponsors on the proposal, pointed out that the American Bar Association was very much involved, and those members of Congress probably all already had heard from the young lawyers and the senior lawyers in their states.

And so a lot of sponsors joined Senator Bayh's proposal.

And Harry Byrd, one of the members of the Senate, is reported to have said to Birch Bayh, he said, "What is this proposal that you have?

"I've never had so many communications from lawyers "as I have had on this proposal."

And he said, "Put me down as one of the co-sponsors."

So there was an enthusiasm for it.

And it passed the Senate in September of '64.

First time in history an amendment on this subject that passed the Senate.

And then it was reintroduced in '65 and also in the House of Representatives by Emanuel Celler of New York.

And everybody charged forward in dealing with the language in the amendment and why it was necessary to have an amendment on that subject.

- So, Dean Feerick, you mentioned some of the sections, all four sections of the amendment earlier.

I wonder if we could just walk through each sort of briefly, but just to try to understand a little bit about why was that particular language necessary.

So Section 1 says quite simply, quote: "In case of the removal of the President from office "or of his death or resignation, "the Vice President shall become President."

What was the constitutional ambiguity before the 25th Amendment that that was addressing?

- Well, keep in mind that, as I mentioned, when Vice President Tyler asserted that on Harrison's death in office after being in office just a month, he said that, "The president having died, "I become the president."

And some members of Congress said, "No, you don't.

"You're only an acting president."

And John Quincy Adams, the former president, said, "You're only an acting president."

And what did he mean by that?

Well, you had a possibility of a new election, in terms of a new presidential election.

And some members of Congress at the time said, "What happens in the case of inability?"

On succession, we have four contingencies in the Constitution.

One is inability of a president, and the other two, of course, you have resignation and removal after an impeachment.

So this is the distinction.

You have a permanent vacancy when the president dies.

When your president is unable, you don't.

And therefore you got to acknowledge and deal with that.

I mean, that was the stream of history really after the Tyler succession.

- So with Section 3, and I'll quote this one too: "Whenever the President transmits "to the President pro tempore of the Senate "and the Speaker of the House of Representatives "his written declaration that he is unable "to discharge the powers and duties of his office, "and until he transmits to them "a written declaration to the contrary, "such powers and duties shall be discharged "by the Vice President as Acting President."

Now, if I'm not mistaken, that's the most frequent use of the amendment since its adoption, I think six times in total.

When do we typically see Section 3 invoked?

- One example would be: if a president was going in for surgery and would be administered sort of a pain medicine where he would be unconscious during the surgery.

It was important that there be no doubt about where the executive power was at that point.

President is unconscious, in surgery, and therefore one should make it clear to the world who has that presidential power, the vice president under the Constitution.

And then Eisenhower mentions the possibility of what happens if a plane that a president was in crashed and you couldn't find the President.

How would we deal with executive power?

And that would be considered an inability under Section 3.

- So, you know, we're racing through these things in the interest of time, but Section 4 gets to what happens if the cabinet and the vice president essentially agree that the president is incapable of performing.

The question that I want to ask, though, goes back to the assassination attempt on Ronald Reagan.

So he underwent extensive surgery.

Did he have an opportunity to sign a memo saying the vice president is gonna be the acting president?

I remember Secretary of State Al Hague saying, "I'm in charge."

And there was a little bit of a controversy around who actually had executive authority while the president was under anesthesia.

- Yeah, he was not able to, obviously in the circumstances, I think that was in 1981, he was not able to function in writing out a declaration.

He needed a surgery right away.

But the vice president and the majority of the heads of the executive departments that had the power under Section 4, they didn't act.

They should have acted, in my opinion, but they didn't act.

And it was a subject that was discussed in a cabinet meeting, and it also was discussed at the hospital by three of the close aides of President Reagan, that they weren't going to recommend that it be used.

So it just didn't get used.

I think history looks back and indicates, with the 25th Amendment now more clearly understood, that it should have been used at that time because of his health.

- So, Dean Feerick, we've got literally about a minute left here.

I'm curious, you know, with the benefit of the 60 plus years that the amendment has been around, are there any lingering space?

Is there any lingering issues that could still be addressed and improved upon from the text of the amendment as it was drafted in the early 1960s?

- There have been efforts to put forth proposals to deal with such subjects about a dual disability of a president and vice president.

If they're both disabled at the same time, the 25th Amendment inability provisions don't work, and how to deal with that.

And then if a vice president is chosen as an acting president, the president being disabled, and he or her had a disability as an acting president, how do you deal with that?

Since Sections 3 and 4 require a role by others who include the vice president.

So without the vice president, you had these contingencies.

A number of recommendations have been made to deal with that, if possible, by legislation.

And students at Fordham Law School have twice had clinics, law school clinics where recommendations to deal with that kind of subject were made.

And Senator Birch Bayh participated, in a sense, with respect to those studies because he was still alive, and I asked him to have some words for the students and he did.

- Dean John Feerick, thank you so much for your service and for sharing some of that history with us today.

That is all the time we have this week, but if you wanna know more about the show, you can find us on social media or visit salve.edu/pellcenter where you can always catch up on previous episodes.

For G. Wayne Miller, I'm Jim Ludes asking you to join us again next time for more "Story in the Public Square."

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