Читать книгу The Once and Future King - F. H. Buckley - Страница 9
ОглавлениеThe prejudice of Englishmen, in favor of their own government . . . arises as much or more from national pride than reason.
—THOMAS PAINE, COMMON SENSE
Over the last 250 years there have been four American constitutions. Each has resulted in a different form of government. We have seen three thus far, and now are on the cusp of a fourth.
The first constitution, in the prerevolutionary thirteen colonies, was one of Crown government, in which royal governors exercised enormous powers. This was swept aside by the American Revolution, and (after the interregnum of the Articles of Confederation) the Framers, at their Convention in Philadelphia in the summer of 1787, produced the second constitution, one designed to correct the flaws of Crown government and the Articles of Confederation. What they proposed was a form of congressional government, with power centered in a Senate and House of Representatives.
The third constitution was one of separation of powers, of power divided between the legislative and executive branches. Its seeds were found in the second constitution, and matured over the next fifty years, as the president came to be popularly elected, and his office emerged as the modern executive—commanding, decisive, and possessing all the authority of the only person elected by the nation at large. Contrary to popular belief, this was not what the Framers had intended. It was not even what James Madison had wanted at the Philadelphia Convention, although it is often referred to as the Madisonian Constitution because of his defense of separationism in the Federalist Papers.1 Instead, the separation of powers between the executive and legislative branches is much more a creature of the unexpected rise of democracy.
We have now entered into a fourth constitution, one of strong presidential government. The executive has slipped off many of the constraints of the separation of powers. The president makes and unmakes laws without the consent of Congress and spends trillions of government dollars; and the greatest of decisions—whether to commit his country to war—is made by him alone. His ability to reward friends and punish enemies exceeds anything seen in the past. He is rex quondam, rex futurus—the once and future king. And all of this is irreversible.
The long arc of American constitutional government has bent from the monarchical principle of the colonial period to congressional government, then to the separation of powers, and finally back again to Crown government and rule by a single person. The same pattern can be observed in Britain’s Westminster system of parliamentary government, which was exported first to Canada, and then throughout the Commonwealth. As in America, there have been four British constitutions since the Revolutionary War.
First came the “personal government” of George III, who chose his ministers and was supported by a large block of “King’s Friends” in Parliament. While sharing power with Parliament, the King dominated the government, and the American Revolution was itself a consequence of his unpopular resistance to the colonists’ demands. George III was not a tyrant, however. His rule did not represent a sharp break from the constitutional practice that prevailed after the 1689 English Bill of Rights, and his ministers could not long survive when opposed by a determined majority in the House of Commons. Nevertheless, this was still a form of Crown government.
This changed in 1782 after the fall of George III’s prime minister, Lord North, when the monarch’s power lessened and that of the House of Commons increased; and this I call the second British constitution. It was one in which power was shared between King and Parliament, and looked at from the distant prospect of Philadelphia, it seemed to the Framers to feature a separation of powers between the executive branch, in the form of the monarch, and the legislative branch in Parliament.
Over the next fifty years, as the American Constitution evolved from congressional government to the separation of powers, the British constitution also changed, though in the opposite direction. By the time of the Great Reform Act of 1832, the monarch and House of Lords were well on their way to political insignificance. What there was of a separation of powers was abandoned, and of Britain’s third constitution all that remained was an all-powerful House of Commons. There was a similar evolution in Canada, with a movement from rule by governors general and fractious assemblies to government by the House of Commons alone. The three countries had crossed paths, with America moving from legislative government to the separation of powers, and Britain and Canada moving from the separation of powers to legislative government.
A fourth constitution is now emerging in Britain and Canada, one that parallels the move to the strong presidentialism of America’s fourth revolution. Under Britain’s third constitution its government was led by the ruling party’s principal politicians, and was labeled “cabinet government” by the nineteenth-century essayist Walter Bagehot.2 Today, however, this has given way to rule by a prime minister who dominates his cabinet and Parliament.
What more than anything explains the move toward Crown government in all three countries is the growth of the regulatory state, where the role of legislation has diminished and that of regulatory rule making has expanded, with the regulators responsible to the executive branch and not to the legislature. Modernity, in the form of the regulatory state, is the enemy of the separation of powers and diffuse power, and insists on one-man rule. As in America, moreover, this is unlikely to change in Britain and Canada.
Crown government might seem to be coded in the constitutional DNA of monarchies such as Britain and Canada. For Americans, however, the return to one-man rule may appear a betrayal of the Revolution and its promise of republican government. So it seemed to George Mason, who complained at the Philadelphia Convention that a popularly elected president would “degenerate” into an “elective monarchy,”3 which was worse, he thought, than the real thing. A hereditary king like George III lacked the legitimacy conferred by voters, and therefore had to share power with the legislature. An elective president would not be so constrained, and would thus be more dangerous to liberty.
To paraphrase John Stuart Mill, he who knows only his own country knows little enough of that.4 One who seeks to understand American government should therefore also know something of other political systems, especially those of similar societies such as Britain and Canada. Where there are similarities, one looks for an explanation beyond the realm of constitutional law from something outside the system, such as a common British heritage in the eighteenth century, the rise of democracy in the nineteenth century, and the growth of the regulatory state in the twentieth century. Where there are differences, one looks for evidence that one constitutional regime, more than the other, is better adapted to the demands placed upon it. That is how constitutions are evaluated. One is apt to think one lives under the best of all possible governments, but unless one is willing to put it to the test, this is little more than the prejudice of Thomas Paine’s hypothetical Englishman.
AMERICA AND BRITAIN CHANGE PLACES
Everyone knows how America came to adopt the separation of powers in government. The delegates to the Philadelphia Convention who drafted the Constitution were sophisticated legal theorists. They had studied “the celebrated Montesquieu” and wisely applied the French Enlightenment philosopher’s defense of the separation of powers. “When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty,” said Montesquieu,5 and the American Framers would follow him and protect liberty through a Constitution in which a separately elected president, Senate, and House of Representatives would each have to consent before a bill was enacted.
I tell a different story in chapter 2. The modern presidential system, with its separation of powers, was an unexpected consequence of the democratization of American politics, and not a prominent feature of the Framers’ Constitution. It was a near run thing, decided only on day 105 of a 116-day convention. The delegates debated the presidential appointment process on twenty-one different days, and took more than thirty votes on the subject, with sixteen roll calls alone on how to select the president. In six of these (one unanimously), they voted for a president appointed by Congress, a system that would have resembled a parliamentary regime. Once they voted 8 to 2 for a president appointed by state legislatures. On one thing they were wholly clear: they did not want a president elected by the people. That question was put to them four times, and lost each time.
The Framers wanted a government with a much weaker separation of powers. James Madison came to Philadelphia with a proposal that came to be called the Virginia Plan, in which an elected House of Representatives would appoint senators, and the House and Senate together would appoint the president. Such a system would have more closely resembled the British Westminster system of parliamentary government, and the gridlock that characterizes Washington today would largely be absent. The party that won the White House would typically win the legislative branch, giving us the winner-take-all government of parliamentary systems.
The delegates rejected the Virginia Plan, but not to vindicate the principle of the separation of powers. What instead was at issue was the division of power between the states and the federal government, with supporters of states’ rights from the smaller states and nationalists from the larger ones on opposite sides. Delegates favoring states’ rights took the first trick, on the membership of the Senate. The states would appoint senators and each state, irrespective of size, would have two. States’-rights delegates feared the centralization of power in the federal government, and believed that a senate so constituted would prevent this from happening. They might have had a point.
As for the presidency, the nationalists wanted a president chosen by the people, as he would be the only person elected by voters across the country and would thus have greater legitimacy to resist encroachments by the states. Once again, however, states’-rights supporters voted this down. What they chose instead was an elaborate system in which state legislatures would determine how presidential electors would be chosen, but in which the electors would not choose the president unless they gave him a majority of their votes. This, the Framers thought, would seldom happen, since they did not expect that, after George Washington, candidates with national appeal would emerge. In the case where no candidate received a majority of electoral votes, the election would be thrown to the House of Representatives, voting by state. What the Framers expected, then, was that the House would almost always choose the president, just as Madison had wanted in the Virginia Plan. Congressmen could not serve as president or sit in the cabinet, but responsibilities would be mingled and Congress would dominate the government. What the Framers envisaged was a separation of persons more than of powers.
In time all of this changed, as a consequence of the growth of political parties and political pressure to let voters elect politicians directly. Presidents came to be chosen by popular ballot, as the nationalists had wanted, rather than by electors selected by states. National candidates emerged and received a majority of electoral votes, so that after 1824 the choice of president never fell to the House. After the Seventeenth Amendment was adopted in 1913, senators were elected by popular vote; and even before this, people had voted for their state legislators with an eye on how they would pick senators. The American system of separation of powers was more an unintended by-product of the growth of democracy than the deliberate choice of the Framers.
Where one did find contemporary support for separationism was in Britain, as I note in chapter 3. The eighteenth-century Westminster system required the assent of King, House of Lords, and House of Commons to enact a bill. Over the ensuing half-century, the monarch and House of Lords lost power to the House of Commons, and by the passage of the 1832 Reform Bill the House of Commons had emerged as the dominant branch of government. A determined House of Commons could now insist on getting its way, and might require the King to appoint new peers to the House of Lords to overcome any objections from that body. Looking backward in 1867, it seemed clear to Walter Bagehot, writing in The English Constitution, that the “efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers.”6 Time’s arrow moved always in the direction of democracy, but while it dispatched separationism from Britain, it delivered it to America.
Naturalized citizens sometimes assert their superiority to native citizens, who did not choose their nationality. In the same way, the Canadian adoption of a Westminster system, which I discuss in chapter 4, might be thought more deliberate and voluntary than Great Britain’s, for the Canadians had choices. Britons could not become Americans, but that was always an option for Canadians. They could have adopted an American separation of powers, or they could simply have moved next door when the wage differential exceeded their attachment to the monarchical principle. That possibility always weighed on one’s mind, as Canadian humorist Stephen Leacock noted. He wrote of an elderly Ontario politician who announced that he would soon go to that place to which all men must go, and none returns. The politician expected some sign of emotion from his audience, but there was none—they thought he was planning to move to the States.7
The attraction of America was so great that it took an act of will for Canadians to resist their dangerous neighbor. In negotiating the 1871 Treaty of Washington, America sought Canada as compensation for the damage to American shipping inflicted by the Confederate raider Alabama, and the British (who had let the ship be built in England) would have been happy to give the country away. Only one delegate to the conference, the Canadian prime minister, stood in the way and insisted on his country’s independence.
Some Canadian radicals wanted to adopt an American-style constitution, with a president and a separation of powers. Most Canadians disagreed, however. They valued the British connection and the British traditions of liberty with which they were familiar. They also feared that, were they to adopt the American presidential system, this would lead the country down the slippery slope to outright annexation by the United States. Why have a separate country, if the political principles are the same?
More than anything, Canadians were familiar with the American system of government, and didn’t like what they saw. The United States had split apart in a Civil War, and Canadians thought that delegates at the Philadelphia Convention had created a nation that had become far too decentralized and unstable. They also observed the costs of the American system of separation of powers in the inefficiency of its government, and wanted none of it. In their debates, the Fathers of Canadian Confederation anticipated Bagehot, and articulated reasoned arguments for the superiority of parliamentary government. In the end, they showed how an organic constitution, created over centuries in one country, could be grafted onto another country quite different in its religious, linguistic, and social institutions. The Canadian example of a peaceful accession to independence with a Westminster system of government came to be followed by fifty countries with a combined population of more than two billion people, and that is no small thing.
THE CONVERGENCE TOWARD CROWN GOVERNMENT
Within the last twenty years political power has been centralized in the executive branch of government in America, Britain, and Canada, like a virus that attacks different people, with different constitutions, in different countries at the same time. Something other than the different systems of government must have produced the change; and there are three plausible explanations. First, power naturally gravitates from disorganized groups (such as Congress) to a single person (such as the president). The group must struggle to get its act together; not so the single person. Second, the imperatives of the regulatory state require a large bureaucracy that is primarily responsible to the executive; the legislative branch must delegate rule-making authority to regulators whose rules are so varied and extensive that they resist legislative oversight. That leaves the executive branch, which hires the regulators, promotes and demotes them, and generally tells them what to do. Third, political campaigns have been transformed by the media, which makes rock stars of presidents and prime ministers. What all this has produced is something very close to George Mason’s elective monarchy, a form of Crown government more centralized still than the personal government of George III against which the Framers had rebelled.
In chapter 5 I describe the growth of Crown government in the United States and Canada. In Canada, cabinet members now take a back seat to the political advisers in the Prime Minister’s Office, who are responsible solely to the prime minister; and the civil service is centralized around a Privy Council Office, with whose head prime ministers plan their agendas. In the United States power has been centralized in the presidency, even more than in Canada. The separation of powers, which was meant to restrict the president’s authority, has instead served to shield him from congressional oversight. With the moral authority of the only person elected by the country as a whole and a fixed term of office, a president can make laws by regulation and unmake them by refusing to enforce the law, with an independence from Congress that prime ministers could never have from Parliament. The president also has what prime ministers lack, the power to begin or continue a war without regard to the wishes of the legislature.
In the first five chapters, which form Part I of this book, I describe the historical evolution of the constitutions of America, Britain, and Canada, and their recent convergence around a strong executive power. In the five chapters of Part II, I discuss the dangers this might pose, and the manner in which parliamentary regimes are better equipped to preserve peaceful, ordered, and good democratic government.
THE PITFALLS OF PRESIDENTIALISM
Echoing Montesquieu, James Madison thought the separation of powers a necessary bulwark of liberty: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”8 That has not been our historical experience, however, as I show in chapter 6. There are a good many more presidents-for-life than prime-ministers-for-life. For example, nearly every country of the former Soviet Union that adopted a presidential system is now an autocracy. Lithuania apart, only their parliamentary systems remain full democracies. The U.S. Constitution seemingly was not made for export. If it has not led to autocracy, is that because it is American, and not because of the separation of powers?
A democracy may more easily descend into a dictatorship when the head of government is also head of state, as he is in a presidential regime. As heads of government, presidents are the most powerful officials in their countries. As heads of state, they are also their countries’ ceremonial leaders, and command the loyalty and respect of all patriots. Not so in a parliamentary system, which keeps the two functions separate. Prime ministers are not heads of state and do not symbolize the nation. The difference, as I explain in chapter 7, is protective of liberty in parliamentary regimes.
Parliamentary systems also have safety valves that presidential systems lack. Presidents have a fixed term; prime ministers may be turfed out at any time by a majority in the House of Commons. Presidents are largely immunized from parliamentary accountability; prime ministers must face Parliament and respond to questions from the Opposition on a daily basis when Parliament is in session and the prime minister is in the country. In chapter 8 I discuss how these differences help presidents who would become dictators, and also how they bring a different kind of leader to power. A president may be a demagogue, unskilled in debate, impatient and vexed when questioned, cocooned from the public. A successful prime minister is a very different sort of person. He must be thick-skinned, and able to tolerate catcalls in Parliament and on the hustings. He, more than presidents, is assisted by a sense of humor and wit. Delusions of Gaullist grandeur are fatal for prime ministers, but can be an advantage for presidents.
The separation of powers in presidential regimes is thought to serve two purposes. By placing a check on the power of a president, it is said to protect liberty; and by subjecting legislation to the scrutiny of three different branches of government, it screens out bad laws. As I show in chapter 9, however, the deadlocks produced by divided government in a presidential regime may encourage a power-seeking president to disregard the legislature and rule by decree. The claim about better government is similarly suspect. While separationism might prevent bad laws from being enacted, it also impedes the repeal of bad laws. The choice is between ex ante screening, before a law is enacted in a presidential regime, and ex post reversibility thereafter in a parliamentary one, and I argue that the advantage lies with Britain and Canada.
Presidential regimes lend themselves to would-be dictators, and alarmists might perceive a fatal tendency to dictatorial, one-man rule in the United States. There is little reason to expect that to happen in the near future, since the democratic traditions of the United States remain among the strongest in the world. Nevertheless, any predictions about the shape of American politics twenty to forty years hence are speculative, and in the last chapter I examine three ways that strong presidentialism might turn into an even stronger form of executive governance: through the criminalization of political differences, through changes in the Supreme Court, and through demographic changes. I conclude with a brief look at how the balance might be tilted back in the direction of congressional government.
The Framers’ Constitution was an improvement over the contemporary British constitution. However, neither it nor the modern American Constitution is an improvement over the British or Canadian constitutions of today. When compared with presidential government, modern parliamentary systems more strongly hold misbehaving leaders to account before a House of Commons. Since it lacks a separation of powers, parliamentary government also avoids what Woodrow Wilson identified as the inconveniences of divided government. American government “lacks promptness because its authorities are multiplied,” he wrote. It “lacks wieldiness because its processes are roundabout, lacks efficiency because its responsibility is indistinct and its action without competent direction.”9 Parliamentary systems have few of these difficulties, and at the same time better protect political freedom. An American is apt to think that his Constitution uniquely protects liberty. The truth is almost exactly the reverse, and this calls for a reconsideration of the limits of executive power in America, not for the purpose of vindicating the principle of separation of powers, but rather to expand congressional power.
Among historians, a developing historical literature examines the family resemblances in ideology, culture, customs, and architecture among countries on either side of the Atlantic.10 This book is in that tradition, since it discusses constitution making in three similar North Atlantic countries, each of which looked over its shoulder to see what the others were doing. In recent years, however, American constitutional scholars have shown little attention to or understanding of the parliamentary governments of Britain and Canada. This is not surprising. Like them, we are all patriots first and philosophers second. That is just as it should be, and Americans will rightfully resist an argument that their country should adopt the parliamentary regimes of other countries (a constitutional impossibility, in any event). However, one need not look to other countries for models on how to resist Crown government, since the Framers wanted a form of congressional government, and would have been shocked by the rise of George Mason’s elective monarchy. Fidelity to their intentions and to the form of government they wished for America would further the cause of freedom.
