A Crisis, but Not Just an American One

Over many years I’ve gradually abandoned my instinctive American attachment to the presidentialist model of the separation of powers. I have done so for a variety of reasons, including my reading of the political science literature on the instability of presidentialist regimes and an increasing appreciation for the ways that presdientialism encourages an unhealthy anti-partisan sense that the current head of government does (or is supposed to) embody and speak for a unified national will. Parliamentary systems that separate the offices of head of government and head of state seem much less susceptible to that pathology. I’ve also been swayed by the combination of the Bush administration’s extraordinary executive overreach and my own (unrelated) migration to Canada, where I’ve necessarily stopped thinking of parliamentarism as strange and exotic.

But my thinking about presidentialism and the separation of powers has also been significantly moved by Sandy Levinson’s writings on the topic over the past decade or so. I find Professor Levinson’s distinctive approach to fusing political theory, political science, and constitutional law important and valuable, and I think it gives him a particular ability to think about the American constitutional order in creative ways – an orientation toward constitutional studies as a unified field, not narrowly tied to constitutional law within existing constitutional structures, but always engaged with it. When the author of a book appropriately titled Constitutional Faith turned instead toward such sharply critical works as Our Undemocratic Constitution, I paid attention, took the new arguments seriously, and was more persuaded than I would have expected.

The critique of the presidentialist model of the separation of powers plays an important part in his present indictment of the crisis and dysfunction of the American political and constitutional system. But I do not share his certainty that the system is in crisis, or that the constitutional structure lies at the root of it. Levinson’s account is an expression of American exceptionalism – critical rather than celebratory, but exceptionalism nonetheless – that seems to me unfounded.

An apparent loss of faith in democratic institutions and processes has been widely documented across the constitutional democracies of the world for many years. Indeed, in what seem like the era of liberal democratic triumphalism between 1989 and 2001 this was a major preoccupation of political scientists. The influential collections Disaffected Democracies (Pharr and Putnam eds., Princeton, 2000) and Critical Citizens (Norris ed., Oxford, 1999) were published when the phenomenon had been well-known enough for long enough to attract a range of scholars’ attention and a variety of hypothesized explanations. In the (very long) wake of the wars of the 2000s and the financial crisis of 2008, things are unsurprisingly no better, and in many countries worse. Even the avowedly relatively optimistic accounting provided by Norris’ Democratic Deficit: Critical Citizens Revisited (Cambridge, 2010) that shows fluctuations around particular events and news cycles shows unimpressive-at-best levels of confidence in parliamentary institutions and political parties in most established democracies other than the Scandinavian countries and the Netherlands.

At this writing the National Front has scored a dismayingly strong result, one of its best ever, in French regional elections – partly a result of the continuing shock of terrorist attacks in Paris in January and November, but only partly. The parties of the constitutional democratic center – be they conservative, liberal, or social democratic – are under rising challenge from populist and extremist parties of the right and left in most European democracies. I am reluctant to venture guesses as to the cause of all this – how much is simply due to economic bad times, how much to the EU’s democratic deficit, how much to the refugee crisis, fears of foreigners, and fear of terrorism. I am enough of a pessimist not to take it for granted that support for the constitutional democratic center is always the norm, with exceptions to be explained away as anomalous. But one thing I do feel confident in saying is that this is not a crisis of constitutional structures and mechanisms, which vary considerably from one country to the next. And it is assuredly not a crisis of America’s constitutional structures in particular.

Indeed, one virtue of the American political system is that it encourages an almost uniquely powerful two-party system (a result of presidentialism, not, as is sometimes thought, of first-past-the-post elections in general) that captures political extremes within broad coalitions and thereby in part neutralizes them. I say this advisedly and cautiously, in the Age of Trump. But it remains most political scientists’ view that the Republican Party apparatus will successfully block his path to the nomination.

If the democratic malaise that Levinson refers to as a symptom is not as distinctively American as his argument would seem to require, neither are all of the structural difficulties to which he points as causes. The complicated tension between the rule of general law and rapid, flexible executive action, and the question of whether and how executives can be effectively constrained by law at all – these are old problems, and getting worse everywhere. The limits on how much knowledge a few hundred people can distill into how many acts of legislation don’t change much over time, whereas executive-branch administrative agencies and military and police apparatuses can grow indefinitely. As Levinson knows, some leading scholars of executive-legislative relations such as Adrian Vermeule and Eric Posner (The Executive Unbound, Oxford 2010) hold that it is pretty much necessarily the case that executives rule under modern conditions, facing ex post accountability but not ex ante restraint. Little of their argument is unique to American structures; much has to do with general circumstances of administrative and military policy.

And indeed parliamentary systems are likewise struggling to find a stable balance. Westminster systems tend to produce very strong executives because they lead pluralities or majorities in party-discipline legislatures – so much so that Americans often doubt whether Westminster systems can properly be said to have a separation of powers at all. But across the Westminster systems there has been pushback against the model of the unconstrained executive – seen, for example, in the development of a post-Iraq “convention” that the British Prime Minister, despite retaining legal powers over war and peace, had a duty to “consult” with the House of Commons before committing troops to major military action. The centralization of power in a secretive Prime Minister’s Office under the Conservative government over the past decade in Canada contributed to a widespread sense that parliamentary rule had been undermined, and the new Liberal government campaigned on a platform that included a rebalancing of executive-legislative relations. We don’t know whether the British convention will have teeth or the Canadian rebalancing will happen. Indeed, the executive may grow more powerful: the Conservative government in Britain is moving to break the power of the House of Lords to block legislation, a power that has been one of the few structural (rather than cultural or conventional) checks on prime ministerial authority there. What we do know is that the problem of maintaining legislative authority in the face of executive policymaking power isn’t unique to the United States.

That is not to say that all is well in American governance, or that there aren’t some distinctive kinds of dysfunction. To take one important example, the recurring flirtation with disaster about the federal government’s debt limit is unknown in other countries. This is because it is absurd: a legislature with responsibility for budgeting that passes bills raising revenue at one level and spending at a higher level has, by doing so, legislated that borrowing must occur; the need for additional legislation to authorize the borrowing that the legislature has already mandated makes no sense. But this is not a feature of the American constitutional system in the way Levinson means; it is statutory.

More generally, the American constitution was framed for a nonpartisan democratic republic. This was a mistake of 18th-century republican ideology; we have since learned that large-scale democracy depends on partisan contestation. Once a stable two-party system took shape after the Civil War, the structures were able to accommodate this in part because the American parties were unusually inchoate. The overlay of economic questions with those concerning the maintenance of apartheid in the American south meant that each party was a coalition of especially disparate groups. The increasing ideological coherence of the two parties since conservative southern whites migrated to the Republican Party puts genuine strain on the system, a strain worsened by the move to supermajoritarian rules for action in the Senate.

But these problems of structure are neither necessary nor sufficient to explain democratic malaise, and changing the structures wouldn’t do much to affect general problems about how to govern by law in a world of wide executive discretion. There’s plenty that is bad in American politics; that’s a truth about politics generally. But if this is a “crisis,” or even a setting for crisis, then I’ll close by misquoting Adam Smith: There is a great deal of “crisis” in a nation, or in a constitution.

 

Also from This Issue

Lead Essay

  • On “Constitutional Crises” by Sanford Levinson

    Sanford Levinson proposes a typology of the constitutional crisis. Some crises, he argues, stem from political actors disregarding the written constitution. Others, he says, are the product of too much adhesion to the written constitution, even in circumstances in which the written text proves self-destructive. He reviews several incidents of each from American history, and he closes by suggesting, provocatively, that the U.S. Constitution may be undergoing a crisis even today.

Response Essays

  • America’s Unamendable Constitution by Richard Albert

    Richard Albert notes that the U.S. Constitution has become practically unamendable: Congress is simply too divided to agree with the supermajority needed to report out an amendment, and the public appears permanently disinclined to make use of Article V’s provision for an amending convention. As a result, changes to the U.S. constitution have been taking place de facto, but almost never de jure; interpretations today do the work that amendments should probably do, and the potential for constitutional crisis grows. Albert closes with a bold proposal: Perhaps Article V does not provide an exhaustive list of methods by which the Constitution might be amended.

  • Saving Baby Madison by Tom Ginsburg

    The slowness of the U.S. Constitution is a feature, not a bug, says Tom Ginsburg. It shields us from politically motivated, short-term thinking in our constitutional design. The alternative, a constitution that is too easy to change, is if anything more likely to provoke crises, as have recently happened in Hungary and Poland. Madisonian constitutional design lowers the stakes of politics, meaning that a president Trump or a president Sanders will be less able to do anything truly damaging. Even in a world of rapidly changing technology, Ginsburg says, we still would have to calibrate the degree of difficulty in constitutional change to match the degree of change needed to suit the situation, and this is likely a hopeless task. Perhaps some constant low-level degree of constitutional tension is the only alternative, and that may not be so bad after all.

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