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