The present deformation of rights was not fated from the beginning, as some prominent conservatives have claimed.
Most Americans subscribe to the idea of “American Exceptionalism.” When polled, 80 percent of respondents report that, because of its history and Constitution, America “has a unique character that makes it the greatest country in the world” (York 2010). For this, one’s thanks go to the Framers, who gave the country a presidential system, with its separation of powers, that secured the blessings of liberty for Americans.
This essay, which will subsequently be published by Encounter Books as part of a book entitled The Once and Future King, will show that while this is a comforting story, it lacks what in Texas is called the added advantage of truthfulness. 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. The American presidential system was a near-run thing, decided only on day 105 of a 116-day Convention. The delegates debated the selection of the President on 21 different days and took more than 30 votes on the subject. In 16 roll calls they voted on how to select the President. On six of these (once unanimously), they voted for a President appointed by Congress, which would have closely resembled a parliamentary regime. Once they voted 8 to 2 for a president appointed by state legislatures, which would also have greatly weakened the separation of powers. 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 (Buckley 2012).
What they agreed to was a Constitution in which the locus of political power would be in the states. Senators would be appointed by state legislators, who would also select presidential electors. The Framers also thought that the choice of president would almost always fall on the House of Representatives, with each state delegation getting one vote, since it seemed very unlikely that candidates who followed George Washington would get a majority of electoral votes. Such a system could and did give rise to sectional conflict, with the states disagreeing amongst themselves over slavery and the tariff. What one wouldn’t have expected to see was the kind of gridlock one sees today in the federal government. A political party that won the House would almost always sweep the table.
What transformed the Constitution was the rise of democracy and elected senators and presidents. The president became the principal symbol of the nation, and the most effective counterpoise to state governments. Not only was he democratically elected, but he was the only person so elected by the entire country. With a legitimacy derived from both the Constitution and the democratic process, the president became the spokesman for the welfare of the nation as a whole. He might thus oppose the will of Congress, and in doing so strengthen the separation of powers.
Whatever one might think of American government, then, one can’t blame it on the Framers. Nor is America the freest country in the world, at least on the Index of Economic Freedom put out by the Heritage Foundation. In its 2012 rankings, Heritage lists the United States as “partly free,” tenth in the world and well behind countries such as Australia and Canada (Heritage Foundation 2012). Even this might be generous. In the 2012 economic freedom rankings produced by the Cato and Fraser Institutes, the United States comes in at eighteenth, behind Chile, Ireland and Britain as well (Cato Institute 2012). The Economist also places the United States at nineteenth, behind a group of mostly parliamentary countries, and not very far ahead of the “flawed democracies” (Economist Intelligence Unit 2011).
These findings will come as no surprise to anyone who has examined the empirical literature on liberty and constitutional design. Parliamentary governments, which lack a separation of powers, rank significantly higher on measures of political freedom. That’s not to deny that America is one of the freest countries in the world. It’s simply to assert that it wasn’t the presidential system that made the difference. What makes America exceptional is that it has for more than 200 years remained free while yet presidential.
1. An Empirical Study
In an empirical study, which can be found on my web site I examine the determinants of political liberty for 135 countries, as measured by Freedom House data from 1972-2010. Not every country with a president counts as presidential, but only those whose president is the head of government as well as head of state. This excludes countries such as Germany that have a merely ceremonial president. Where a country has a president as head of state but a prime minister as head of government, I classify it as parliamentary. I exclude countries that disappeared (e.g., South Vietnam) as well as non-democratic monarchies (e.g., Saudi Arabia) and out-and-out dictatorships (e.g., North Korea). I include what Maurice Duverger called semi-presidential regimes as presidential (Duverger 1980), since the distinction between the various kinds of presidential regimes is hazy. I did not distinguish between countries on the basis of their voting procedures (first-past-the-post vs. proportional representation).
I found that presidential regimes were significantly less free than parliamentary ones, even when taking economic, political and cultural factors into account. The difference between presidential and parliamentary systems was associated with a one- or two-point gain on the Freedom House scale. In 2012 a one-point differential was the difference between the United States and Cristina Kirchner’s Argentina; a two-point differential was the difference between the United States and Evo Morales’ Bolivia.
Amongst presidential countries, the United States stands out as exceptional in its political freedom. In an effort to explain why America this is so, I estimated the coefficients again, this time dropping parliamentary regimes and employing a dummy variable for the United States in order to compare the United States with other presidential regimes. What I found is that American Exceptionalism can be attributed to the fact that it is a wealthy, older country with a British heritage. This has made America a free country, in spite of its constitution.
2. The Pitfalls of Presidentialism
There are three reasons why presidential government might be thought to threaten political freedom.
• As heads of state, presidents enjoy a prestige and status denied prime ministers in a parliamentary system, and might exploit this to assume greater powers.
• Prime ministers are more accountable for their misbehavior than presidents, who hold office for a fixed period of time and are freed from daily scrutiny before a House of Commons.
• There is a greater possibility of deadlock in a presidential system, with its checks and balances. These invite a president to step in and assume greater powers.
2.1 Jack Spratt’s Law
In The American Presidency, Clinton Rossiter offered a mythic account of American government, in which the presidents portrayed on Mount Rushmore serve the need for mystery and theatrics in national life. Who, he asked, “are the most satisfying of our folk heroes? With whom is associated a wonderful web of slogans and shrines and heroics? The answer, plainly, is the … Presidents I have pointed to most proudly. Each is an authentic folk hero, each a symbol of some virtue or dream especially dear to Americans” (Rossiter 1963, p. 100).
That’s not the kind of president—an elective monarch—the Framers wanted. What they had in mind was more the sober head of government on finds in a parliamentary system. A prime minister wields at least as much power in his country as a president would in his. In one respect, however, a prime minister lacks the authority that a president enjoys, for presidents and not prime ministers are heads of state.
As a matter of form, the Queen and not the prime minister summons, prorogues and dissolves parliament, greets foreign heads of state, presents honors and awards, signs commissions, receives ambassadors, signs bills into law and takes precedence before any of her subjects. In all of this, the Queen represents what Walter Bagehot called the dignified, as opposed to the efficient, element of the British constitution. The efficient part is that which give us laws and rules, while the dignified part may be seen in the ceremonies associated with the enactment of laws.
What Bagehot described was Jack Spratt’s Law applied to the constitution, in which real power and ceremony, lean and fat, are cleaved off from each other. That was how, he thought, a republic had “insinuated itself beneath the folds of a Monarchy” (Bagehot 2001, p. 48). By contrast, where a president, as head of state, can clothe himself in the symbols of nationhood, he might amass an excessive degree of political power and a monarchy might insinuate itself beneath the folds of a republic. That might help explain why one sees presidents-for-life, but not prime-ministers-for-life.
In the Transparency International Corruption Perception Index America comes in at number 24. Leaving Hong Kong and Qatar out of the mix, every country ahead of the United States save for Chile has a parliamentary government. Again, I tested this in a regression equation, which can by found on my web site, and found that presidential regimes are significantly more corrupt.
This might plausibly be attributed to differences in accountability between regimes. Prime ministers are more accountable for misbehavior than presidents, who hold office for a fixed period of time, during which it is extremely difficult to remove them. Presidents are also freed from daily accountability for their administration before an Opposition in a House of Commons. Congress is given an oversight role in cabinet appointments and the hearings it holds, but this cannot compare to the Opposition’s ability, for as long as it wants, to hold a government’s feet to the fire.
The checks and balances of the separation of powers in a presidential regime require both the executive and Congress to agree on legislation, and results in a deadlock when they fail to do so. George Tsebelis modeled the problem as one of veto players, defined as players whose assent is required before any change is made to the status quo. As the number of veto players increases, so does the probability of deadlock (Tsebelis 2002, p.19). In a parliamentary system with a majority government only one party has a veto power: the prime minister and his party. In a presidential system with a bicameral legislature, however, at least three parties have veto powers: the president and the majority party in each of the upper and lower house. The increased likelihood of deadlock in a presidential system might invite dictators to step in and cure the problem by ruling extra-legally, or at a minimum to expand the scope of executive power.
3. The Rise of Crown Government
Nearly everyone agrees that in recent years the role of the president has expanded and that of Congress receded. This happened for four reasons. The first, suggested by Jean-Jacques Rousseau, is that over time power tends to localize in a single person. The unitary president acts, Congress divides into factions. Second, the growth of the regulatory state in the twentieth century shifted power from the legislature to a bureaucracy responsible to the executive. Third, the changed role of the media had made stars of the executive, at the expense of the legislature. Fourth, the inconveniences of the separation of powers encourages a president to take charge to break a legislative deadlock.
What we have seen, then, is the rise of what I call Crown government, the personal rule by a president that resembles that of George III before the fall of the North ministry.
The President’s Legislative Powers. Congress has quietly acquiesced to the expansion of presidential power by drafting major legislation in the most general terms, with the details to be penciled in by the federal agencies of the executive branch; and this can be seen as a grant of legislative powers to the president. Presidents can shape regulatory policies by appointing their allies to manage agencies or oversee the through OMB and OIRA, and increasingly rule by diktat though a stoke of a pen.
The President’s Non-enforceability Powers. In addition to making laws by decree, a president may decide not to enforce an existing law. This amounts to a non-reviewable veto power, since it does not risk a Congressional override. For example, Obama has effectively vetoed a portion of the immigration law (after Congress refused to pass his “Dream Act”) and the non-waivable portions of the 1996 welfare reform law. This would appear to contravene Article I, § 1’s vesting power, the presidential veto power of Article I, § 7 (why veto a bill, and risk an
override by Congress, if a president can simply decide not to enforce it?) and the Article II, § 3 mandate to “take Care that the Laws be faithfully executed,” to say nothing of the separation of powers itself. But so what?
The President’s Spending Power. Congressional earmarks amount to one or two percent of the federal budget. For the rest the president enjoys a broad discretion on how moneys shall be spent, as seen in the TARP bailout. The 2008-09 GM-Chrylser auto bailout was an especially remarkable example of this, since Congress had authorized that TARP moneys to be spent only on “financial institutions.” This shows how aggressive presidents may stare down Congress and ignore the Constitution. The president also enjoys a broad power not to spend money, notwithstanding the Congressional Budget and Impoundment Control Act of 1974. While a president is required to seek Congressional approval when he decides not to spend funds, he can circumvent the Act by merely postponing his decision, as Obama did for NASA funding on the Constellation space program. In a signing statement, Obama has also asserted the power to ignore spending mandates in the 2013 National Defense Authorization Act, which amounts to what one had thought an impermissible line-item veto.
The President’s War Power. On a naïve view of the presidential war power, America goes to war solely to defend its national interests. More realistically, the war power can be seen to be employed to advance the president’s political interests. A “diversionary hypothesis” posits that presidents embark on war to distract attention from unpopular domestic affairs, such as the Clinton sex scandal, and empirical studies report that presidential decisions to use military force are more closely correlated with domestic political issues than with the international environment.1 Findings that, since the 1950s, presidents are more likely to go to war during periods of high unemployment are also consistent with diversionary explanations of the war power.2 Von Clausewitz’s dictum that war is the continuation of politics by other means was never more true than in recent American history. In all of this, Congress is a minor player. Congressional approval is not necessary to authorize a war nor sufficient to stop the mouths of sunshine hawks when a once-popular war becomes troublesome.
A new constitution has thus emerged, one dominated by the executive branch. George Mason called this an elective monarchy and I have called it Crown government, for the president’s power while in office may be compared to that of George III from 1770-82, during the period of his personal rule.
So how might an unscrupulous president take it to the next level? First, the president’s control over the machinery of criminal justice and the regulatory enforcement is an invitation for a power-seeking president to criminalize political differences. The expansion of federal criminal law and the decline of mens rea is an invitation for an administration to pursue potential felons, such as Mitt Romney.
On taking office, then, an incoming president might replace all incumbent District Attorneys, as Clinton did in 1993. The appointments require Senate confirmation, and individual senators have by tradition had a strong say in the choice of who will serve, but it cannot be beyond the wit of a president to place several partisan allies in office, and then let nature take its course.
America isn’t Russia, of course, not by a very, very long shot. Relative to other first-world countries, however, it tolerates public corruption and has a taste for populism. That’s not to say that presidents will throw opposition leaders into jail, as they do in the Ukraine. However, it is not beyond the realm of possibility that investigative magazines, right-wing press lords and major opposition donors will find themselves under criminal investigation. Or that IRS tax audits and Labor Department investigations will be shaped by political considerations—if only because all that seems to happen now. A senior IRS official is reported to have said “What do you expect when you sue the president?” Denmark?
Second, the president’s power to nominate judges to the Supreme Court, and the deference given to his nominees by the Senate, empowers him to reshape the structure of government and constitutional liberties, particularly the liberties enjoyed by intermediate organizations such as religious groups that serve as focal points for opposition to dictatorial government. When every other barrier to oppression is removed, in a Soviet-era Poland or China, what remains are churches faithful to their mission.
Same-sex marriage is on the front lines of the culture wars today, a war that seems unlikely to end if such unions are legalized. Under modern requirements of authenticity and respect for different lifestyle choices, something more than tolerance is required of the losers in the culture wars. They might in the future be required to offer endorsement and accommodation in order to keep their jobs or carry on business, as an instance of what cultural historian Robert Nisbet labeled “the ingenious camouflaging of power with the rhetoric of freedom.”3
5. Can Crown Government Be Reversed?
Any curbs on presidential power must ultimately be supplied by the voters, through an election that disciplines an overreaching executive. Is that likely to happen? I think not. We haven’t seen much of George Mason’s republicanism from the monarchists in the American media, who fawn over Obama. Moreover, the make-up of the electorate has changed, as a consequence of immigration, and the new arrivals didn’t come here because they had read The Federalist Papers.
No one is suggesting a return to the pre-1965 immigration law, with its national origins categories. However, the 1965 Act has had profound political consequences. For the 1950s, an emigration country’s weighted Freedom House ranking was 1.58. For arrivals over 2000-09, however, that number had dropped to 3.26.4 The 1950s score was halfway between the U.S. and Brazil, while the score 50 years later had dropped to somewhere between 3 (Mexico and Columbia) and 4 (Pakistan and Nigeria).
And what of the natives? America is rich, and rich countries have not been seen to fall into dictatorship. However, the United States fares poorly on measures of intergenerational income mobility, and it is less than clear how Americans will react to the economic decline that many forecasters predict. True, the country has had a good run for 225 years, but it’s always problematic to predict the future from the past, especially after the sociological changes of recent years that Frank Fukuyama called The Great Disruption. And then, finally, there was the last election, in which Americans were given the opportunity to express their views about strong presidentialism, and what they didn’t want was George Mason.
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1 Charles W. Ostrom and Brian Job, The President and the Political Use of Force, 80 Am. Pol. Sc. Rev. 541 (1986); Patrick James and John R. Oneal, The Influence of Domestic and International Politics on the President’s Use of Force, 35 J. Conflict Resolution 307 (1991); Gregory D. Hess and Athanasios Orphanides,
War Politics: An Economic Rational-Voter Framework, 85 Am. Econ. Rev. 842
2 See Howell and Pevehouse at 65-66, Tables 3.2 and 3.3; Jong Hee Park, Structural Change in U.S. Presidents’ Use of Force, 54 Am. J. Pol. Sc. 766 (2010).
3 Robert Nisbet, The Quest for Community: A Study in the Ethics of Order & Freedom 141 (San Francisco: ICS Press, 1990). One might think that duties to respect religious beliefs and duties to respect practices condemned by a religion such as homosexuality would cancel out, at least for the respect demanded for same-sex unions. But that, seemingly, is just what the secularist would deny, in rejecting an abstract right to respect religious beliefs. See Brian Leiter, Why Tolerate Religion? ch. 4 (Princeton U.P., 2012).
4 The formula is Sum[(country intake/total intake)*FHcountry]. The data is taken from table 2 of the DHS 2011 Yearbook of Immigration Statistics, looking at the 1950-59 and 2000-09 periods. For the earlier period I excluded countries under Soviet control. For the Freedom House ranking I used the 2010 figure, since their rankings go back only to 1972.