Balkinization  

Tuesday, October 03, 2006

The Fault is in Our Constitution

Sandy Levinson

As I've been pondering over this weekend about the (in)appropriateness (as distinguished simply from the impolitic aspects) of using the fuhrerhprinzip analogy to understand our own present political situation, it occurred to me that I'm in the embarrassing position of not understanding my own book well enough. That is, as everyone knows by now, I've recently published Our Undemocratic Constitution, which includes a vigorous critique of various aspects of Article II (as well as the Article I assignment of a presidential veto power, the subject of an article in this week's New Republic). But it seems to me that the Constitution, so bad in so many respects, also helps to explain why we end up with a distinctively American version of presidentialism that requires no recourse to the baleful influence of Leo Strauss and his connection with Weimar.

The argument focuses on two aspects of the Constitution, both of which made perfectly good sense at the time, both of which are dysfunctional inn 2006. The first is that the president, of course, is head of state, the recipient of all sorts of emotions attached to the flag and other symbols of the nation. Hail to the Chief is not something we would play for what Ross Perot would usefully call our most important employee. It is something more suitable for a monarch, and that is what the Constitution in effect creates. On top of this is the consequence of the rigidly fixed term of office. As the saying goes, whoever is president is, subject to death or impeachment, neither of them likely or desirable, "the only president we have" until the next inauguration day. Basic cognitive dissonance theory would predict that anyone stuck in such a relationship would overlook deficiencies and try desperately to reassure oneself that things will turn out all right. But, of course, it isn't quite so simple, because one has to factor in something that is NOT part of the original Constitution and, indeed, was by-and-large feared by its designers, the reality of a party system. Democrats have no incentive to glorify George Bush, nor did Republicans have any similar incentives with regard to Bill Clinton. But, of course, the political party of whom the president is the (unreplaceable) leader has every incentive, psychological as well as political, to be loyal once the alternative is viewed as the prospect of losing power to the dreaded opposition. (My favorite version of Lord Acton's dictum is the variation coined by John P. Roche: "Power corrupts, and the prospect of losing power corrupts absolutely.")

The fuhrerprinzip, at least with regard to Hitler, was presumably based on charismatic authority. Moreover, it was designed in effect to overthrow the existing political order, given that the Chancellor was not head of state. That honor remained, as I understand Weimar, with the President, who was supposed to be in some sense "above politics." (Obviously, I stand ready to be corrected on my understanding of German politics.) I presume that no one would ascribe Republican loyalty to George W. Bush as resting on his charisma. Nor is it part of an attempt to overthrow the basics of the American political order inasmuch as presidentialism of one kind of another has been a constant of American politics from quite near the beginning. Before, though, there might have been certain pressures against presidentialism going "too far," not least becasue political parties were more "loose-tent" coalitions (especially among the Democrats) and less united. For better and worse, we now have much more ideologically united parties, at least as measured by the willingness of any particular member of Congress to stray too far from the party leadership. So what explains the dismaying abdication of independent judgment by House and Senate Republicans is all too easily predicted by the hard-wired features of our own constitutional structure. And, of course, one can explain the Democrats who voted for the bill largely on David Mayhew's argument that the desire to be re-elected takes precedence over almost any other value. From this perspective, probably the most disgusting vote was that of Frank Lauchtenberg, who is not up for re-election and who is sufficiently old that he should be thinking of "legacy." But perhaps he saw giving away his vote (and his conscience?) as a way of helping his highly vulnerable colleage, Sen. Menendez, who had more Mayhewian reasons for crossing the aisle.

If, as I have been arguing repeatedly, our system allowed Republicans to dump their party leader/president, I am confident that George W. Bush would join Margaret Thatcher (and, shortly, Tony Blair) on the dustbin of history even as another Republican (John McCain?) would take the helm. But that is not our system, with all sorts of psychological and political consequences. (I have, incidentally, no good answer for the "head of state" problem. I don't support reverting to a monarchy, nor can I easily imagine electing two "presidents," one as head of government, the other as ceremonial head of state. But surely we could stop playing "Hail to the Chief" and otherwise treating the president as quasi-royalty.)

Comments:

Every government has to have a head of state. As you observe, one is better than two as in some parliamentary systems.

You appear to be implying we should adopt a vote of confidence system like they have in Britain to short circuit a president's term. I would disagree.

While this may make some sense in other countries with longer terms between elections and no term limits, our constitutional system significantly limits the presidency with a relatively short 4 year term between elections and a maximum of two terms.

As for being treated like quasi royalty, the head of state represents the country and thus receives the respects we expect for our country. However, unless the President is detached from reality, he or she can expect far more brick brats than respect from fellow politicians, the press and the voters in our rough and tumble democracy.

In our system of government, Congress by far wields the most power. The only power the President has over Congress is the power of party loyalty and persuasion.

There are so many checks and balances in our system, the President simply does not have the power to become a dictator unless he can somehow convince a military dedicated to defend the Constitution to overthrow our constitutional government. Then you have to deal with the ultimate check of about 100 million armed citizens like myself who might take violent exception to a military coup.

Thus, I simply cannot take comparisons to Nazi Germany all that seriously.
 

Your Hitler analogy is somewhat weakened by the fact that Hitler started as just the Chancellor, while von Hindenberg was the Head of State. You can have

The Hitler analogy, however, can still be strong in another respect. As Arendt has mentioned, one common aspect of totalitarian regimes is the duplication of authority. For Nazi Germany you had the SS, which had its own army, civil adminstration, economic base, etc. In many places in government you had SS officials in positions of government who were subordinate to others in the civil chain of command while still being able to run the show.

Now? Look at the changes in DOJ hiring, where the political appointees have authority over career attorneys. Look at the mandated changes in K street lobbyists, where lobbyists are only listened to if Republicans are given jobs there. It's not much, yet, but the intermingling of public and party positions is a very dangerous road to tread.
 

I don't know about this.

Take Blair--it has seemed for a long time that the majority (or at least a plurality) of England wants to be represented by someone who is not Tony Blair, but who is preferably a member of the Labour party or perhaps a Lib Dem. But they had no way of making this happen. The "no confidence" vote is hard to actually accomplish when an MP's power and prestige depends so heavily on the prime minister.

The problem isn't so much ideological unity, as that the Republicans are united behind the President, and the Democrats aren't united in opposing him. The Democratic members of Congress could have filibustered this bill. They chose not to.

There are certainly aspects of the Constitution that are making this worse--the head of state/head of gov't thing; the failure to foresee the importance of parties; the consistent underrepresentation of large-population states. But there was nothing inevitable about it, and every system has vulnerabilities. We just seem to live in a time and in a place where the best lack all conviction* and the worst are full of passionate intensity.

*with certain notable exceptions, who I am very glad to know!
 

Just for the record, I thought that I was rather explicitly disaffirming the "Hitler analogy" and arguing instead that the US Constitution contains within it structural incentives that, combined with a party system, work to encourage the creation of an overly-powerful president.
 

Bart: However, unless the President is detached from reality...

And when he is? (I'm thinking "Mission Accomplished", just for starters.)
 

Robert Link said...

Bart: However, unless the President is detached from reality...

And when he is? (I'm thinking "Mission Accomplished", just for starters.)


The Mission Accomplished banner was put up by the Carrier group because they had finished their deployment in Iraq.

When I returned from the Persian Gulf War, the battalion had a similar banner over our awards ceremony.
 

From the CNN interview with Bob Woodward:

"KING: We're back with Bob Woodward. The book "State of Denial." Tell us about Rumsfeld talking about Mission Accomplished banner on the ship.

WOODWARD: This is May 1st, 2003, the very famous speech the president gave on the aircraft carrier, the Kennedy. You know there was that sign, Mission Accomplished. And I asked Rumsfeld about it and said he was -- Rumsfeld was in Baghdad and they sent him an advanced copy of the speech. And he said, I almost died because mission accomplished was in the speech. And he said, I got it out of the speech but I didn't get the sign down. Now they've always put out the story that it was the Navy that put up the sign. And there's the secretary of defense saying it was in the speech."

http://transcripts.cnn.com/TRANSCRIPTS/0610/02/lkl.01.html
 

Mark:

Bob Woodward has a number of disputed "quotes" in his latest book.

I lost my faith in Woodward when he made up a death bed conversation with ex CIA chief Bill Casey. Casey was an old school spook who strictly enforced operation security inside the CIA. The leakers in the present CIA would have been dealt with very harshly under his regime. Casey never would have told Woodward of all people anything classified.
 

Bart: When I returned from the Persian Gulf War, the battalion had a similar banner over our awards ceremony.

Bart, thank you for your service, truly. "Dessert Storm" was blood for oil; but it was our duty to protect that oil, and our allies, and also the stability of the world economy, which is an oil economy. My criticism of that war was for the lie that it wasn't about oil. That criticism and that lie notwithstanding, I have nothing but gratitude and respect for the service people who do the job they are sworn to do.

It is our duty outside the service, however, to ensure that our service people never die, or kill, in vain or in service of evil. We fail that duty with our unprovoked invasions and occupations of Afghanistan and Iraq, objectives known to be beloved of PNAC long before the attacks of September 11, 2001. As a warrior you know that the nation was never at risk in the wake of those attacks. Comparisons to Pearl Harbor are ill founded as there was no nation or invading force poised to follow through. Spectacular, deadly, unprecedented in scope and execution to be sure, but a legitimate threat to the nation? Never close. It is understandable that many service people, like many in law enforcement, become primarily focused on who they are fighting rather than on what they fight for, but I can't help expecting more of someone as articulate as you.

The greatest threat to the nation continues to be this administration's policy of playing into the martyr's hands, acting out plans authored by Haliburton and Bechtel which happen to further both bin Laden and Cheney's desires for blood and money. Ironically, while "the base" was never and still isn't anything like a legitimate body with which a nation can war, acts of your partisans are creating an environment where enough otherwise peaceful or disinterested people may be frightened into joining such a force; as long as terms such as "islamofascist" are bandied about we approach a tacit identification of Islam as the enemy with all that entails.

That disastrous tragedy must be side-stepped; most easily this is done by repudiating the war metaphor as applied to the people responsible for nine-one-one. The "war" on "terror" is not a war in any legally legitimate sense, and the rampant erosion of civil liberties are not warranted thereby. There's nothing wrong with the Constitution, to voice disagreement with Professor Levinson's theme; we simply need to enforce it.
 

I would simply note that whereas Mayhew emphasizes the electoral imperative, he also downplays the importance of parties (see Divided We Govern). I think Mayhew is clearly wrong as to the latter, or at least that his study of the lack of partisan bias in congressional investigations of the President is time bound: a similar study would come to a different conclusion today.
 

In the second edition, Mayhew admits that the major difference between "divided" and "unified" governments is that the former are far less likely to lead to significant congressional oversight.

I confess that I just don't believe that divided government doesn't matter re legislative outcomes, though maybe that was more likely to be the case when he was doing his initial studies.
 

I don't think I understand this argument. The ceremonial head-of-state component of the presidency seems to me to have just about nothing to do with the passage of this legislation. Members of Congress aren't much affected by that stuff are they -- except insofar as they sense their constituents are enamored of the President? In this case, Bush is very unpopular, and he's a lame duck. The fact that we have a fixed term and a two-term limit for the presidency should undermine the power of a second-term president to push legislation through.

I think the disturbing thing here is the "banana republic" character of this legislation. Fundamentally, this legislation attempts to cynically exploit certain constitutional loopholes to undermine some of the most important principles on which our constitutional democratic republic is based. What is most maddening is that members of Congress voting for and against it seem incapable of grasping the principles at stake. They vote out of some combination of party loyalty and a desire to please the constituents, and the constituents are presumed to want their government to be tough on terror. And, after all, a lot of Democrats voted for this legislation. The members of Congress are just not sufficiently smart or serious to keep the government from behaving like the government of a banana republic.
 

In the Weimar system, the President (an elected office and Head of State and Commander-in-Chief of the Armed Forces) appointed the Chancellor (an unelected office and Head of Government).

Hitler actually ran against Hindenburg for President in 1932, and lost to Hindenburg 53% to 37%. But it was Hindenburg who appointed Hitler Chancellor in January, 1933.

In August, 1934, President Hindenburg died. Pursuant to the Enabling Act (adopted in 1933), the cabinet had enacted a law the preceding day, combining the offices of President and Chancellor, uniting those offices in the person of Hitler, and abolishing the title of President. Thereafter, Hitler's official title would be Fuehrer and Reich Chancellor.

According to Shirer, the fuehrer-prinzip was first enunciated in Mein Kampf, a book I haven't read.
 

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