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.
We are not indeed constituting a British Government, but a more dangerous monarchy, an elective one.
—GEORGE MASON
The delegates who met in Philadelphia in the summer of 1787 drafted Article II of the Constitution, which as amended governs modern presidential elections. What they had in mind was a different form of government than our present one, with a weaker separation of powers between the executive and legislative branches and with very different ideas about presidential elections. If one examines what the delegates said, as Lincoln did in his 1860 Cooper Union speech, one quickly discovers that separationism was not the principal theme of the Philadelphia Convention, and that the delegates very nearly adopted a system not unlike the parliamentary regimes of Great Britain and Canada.
The delegates were divided between coalitions of nationalists and states’-rights supporters, and what they finally agreed on was a compromise, with something for everyone. As the nationalists had wanted, the new Constitution would be much more centralized than the Articles of Confederation that had governed the country from 1781 to 1789. The states’-rights delegates won most of the other points, however, and the Constitution would be much more decentralized than the nationalists had proposed. States would appoint senators, who would serve at the heart of the federal government,