When Senator Birch Bayh passed away in March, my memories brought me back to Washington, D.C., on a Wednesday morning in January 1964. President Kennedy’s assassination two months earlier had injected a new uncertainty into the national psyche. One of the responses was to explore clarifying the presidential succession laws—the subject of an article of mine that the Fordham Law Review had happened to publish a month before the assassination.
As part of efforts to solve the Constitution’s succession gaps, the American Bar Association and Senator Bayh collaborated to convene a small conference of twelve lawyers. When the group met that January morning I was fortunate enough to sit next to Senator Bayh. It was the first time I met the 34-year-old senator from Indiana and the beginning of a relationship that profoundly impacted my life.
Following the ABA conference, Senator Bayh gave me the opportunity to work with him on the crafting and drafting of the 25th Amendment. Our relationship continued as he joined with the ABA to attempt amending the Constitution to provide for direct election of the president and vice president. Watching him build support for reform became a seminal experience for me.
We continued to collaborate on other programs involving the Constitution. Several years ago, I received an unexpected call from him. I was organizing a presidential succession program in New York, and he needed information about our work on the 25th Amendment. It was a topic he expected would come up in an interview with the New York Times for his obituary. He remarked that we both had come into the field of presidential succession as young men and would be leaving the field that brought us together as much older men.
He was passionate about adding to the Constitution when necessary. His zeal made him the only person other than James Madison to draft more than one constitutional amendment. At the same time, he used his role as chairman of the Senate Subcommittee on Constitutional Amendments to protect our founding document from rash and ill-advised revision.
It was humbling to watch this modern day father of the Constitution in action. He was the older brother I never had; the ultimate mentor in caring for the Constitution, and for decency and goodness in serving others.
A love of young people was at the core of Senator Bayh’s being. How fortunate I was to have had the opportunity to introduce him to law students seeking to know more about America from his perspective! One of those opportunities came in 2009 when I accompanied two editors of the Fordham Law Review to speak with him. The resulting interview appeared in a special issue on the adequacy of the presidential succession system. Senator Bayh shared lessons for success in public service and in life.
Three lessons stood out: the importance of seizing the moment, elevating patriotism over politics, and treating others with respect.
Seizing the Moment
One of Senator Bayh’s many talents was his ability to recognize opportunities and respond creatively in ways that immensely benefited the nation. In the interview, he told us how he came to be in a position to draft constitutional amendments. He recalled hearing in October 1963 that Senator James Eastland, the chairman of the Judiciary Committee, was planning to eliminate the Subcommittee on Constitutional Amendments.
“So I got an appointment and saw Senator Eastland,” Senator Bayh said. “And I made my pitch: ‘Mr. chairman, when I went to law school, constitutional law was my most exciting subject. Boy, it would be my dream come true if I could be chairman of that subcommittee.’”
He told Eastland that he would staff the committee so it wouldn’t cost the chairman “a nickel.” Eastland called him the next morning, and told him, “I want you to be chairman of that subcommittee. I think you’d be a good one.”
Senator Eastland’s faith in him was quickly validated. Only a month later, Senator Bayh remembered, the nation was “confronted with the stark reality that the president is human and life can be taken out rather quickly.” Out of the tragedy of President Kennedy assassination, Senator Bayh found a way to strengthen the nation’s founding document with the 25th Amendment.
He seized the moment again a few years later, winning approval for the 26th Amendment to lower the voting age to eighteen amid the Vietnam War. “The chief selling point was that you had young men over there that were dying in the jungles, who weren’t old enough to vote for the people that sent them there,” Senator Bayh said. “That was a compelling feature.”
Elevating Patriotism Over Politics
Placing the nation’s interests above those of any legislator or party was essential to Senator Bayh’s legislative successes. Recalling the 25th Amendment’s drafting, he observed, “There was a major difference of opinion as to how to approach this. But we did it by compromise.”
“[I]t’s not a perfect document, but we struggled with it. As they say, ‘Laws and sausage are the same: You don’t want to see either one of them made.’ The process is sometimes a questionable process that ultimately reaches a good end. But I don’t think it’s too questionable a process, because it’s our process, our democratic process.”
Senator Bayh pointed out that the 25th Amendment’s provisions were intended to keep politics out of presidential succession.
“What we wanted to have was a system that would—right and wrong, without politics, without a crisis of the moment—say, ‘Here it is.’ This would take away the ability to say, ‘Okay, how is it going to help me or hurt them?’ because it’s right there in the Constitution, and this is what you have to do.”
“I like to think that in times of crisis—let’s say, at a time of great crisis—great men step forward and do the right thing. Maybe that’s being naïve, but I think that’s the case. All of us love our country, regardless of how we might vote. Amen.”
The 25th Amendment’s non-partisan procedures may have been pivotal in allowing the country to move beyond the Watergate scandal. The amendment’s vice presidential replacement procedure allowed President Richard Nixon to nominate Gerald Ford as the vice president after Spiro Agnew’s resignation. Senator Bayh speculated that without that provision history would have taken a more perilous path.
“We don’t know for sure, but when Agnew left and there was that vacancy, and [Speaker of the House] Carl Albert was next in command, I can’t imagine Richard Nixon resigning and turning all the machinery of government, which was controlled by Republicans, over to a new President, Democrat Carl Albert.”
“So the fact that the amendment operated to put a Republican there who could step up when he resigned and continuity would exist in the government—I think, without that, Nixon would not have resigned. He would have been impeached. I don’t think that would have been in the best interest of the country.”
Treating Others with Respect
Treating others with respect was a central feature of Senator Bayh’s approach to life, and it was the object of some of his signature legislative initiatives. He said his upbringing inspired his work on the Equal Rights Amendment, which would have barred any discrimination on the basis of sex. “I became involved in the Equal Rights Amendment, having grown up on a farm where my grandmother worked as hard as my grandfather,” he remembered.
He successfully shepherded the ERA through the Senate, but the required three-fourths of state legislatures have not ratified it, though a renewed campaign is pushing for its approval.
Adhering to the golden rule also made Birch a better legislator and person. He said, “I learned to treat other people the way you’d like to be treated yourself, whether in the law firm, the classroom or in the United States Senate.
“I was blessed to have people, at least during those days, who treated other people the way they’d like to be treated: listen to what somebody has to say and then make a judgment call and hope that, once the call is made and the majority speaks, the others will go along.”
As I sat with Senator Bayh around a table again, more than 55 years after we first met, he reflected on our work together. “We were doing the right thing,” he said. I never knew him to do anything else.
John D. Feerick is a professor at Fordham University School of Law.