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