an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Bruce Ackerman’s The Decline and Fall of the American Republic is a profoundly important constitutional wake-up call. It presents a powerful, multi-layered, yet highly accessible argument that the body politic faces the serious and unprecedented structural risk of presidential extremism and lawlessness -- and a series of new checks and balances that offer the rare combination of pragmatism and originality. One hopes that the book will receive its just deserts by provoking a vigorous new constitutional debate not only among fellow academics but also, more importantly, among We the People.
My reactions to the book mostly supplement rather than question Bruce’s argument, suggesting a few additional explanations, concerns, or proposals. To the extent that some of the pathologies he identifies seem to me to be equal opportunity ones that have already spread beyond the presidency to other parts of the polity, this perhaps adds another twist to the narrative. At the very beginning of the first chapter, Bruce argues that “where the Framers went wrong was in guessing the identity of our most dangerous branch,” which has “turned out to be the presidency” and not the legislature. But since the forces that proved them wrong were supervening ones they could not have predicted – the dominance of political parties, direct popular election, primaries, the role of consultants and opinion polls, superpower status, the decline of serious journalism, the internet – he doesn’t want to be too tough on them.
I want to be a little tougher. I think the Framers’ error went beyond this wrong guess to the governmental structure that they established. This structure was inherently and latently flawed at the outset in the way that has come to pass, not precisely of course but generally – and the knowledge to have avoided this was available to them at the time. For the republican revolution that they wrought was not entirely without precedent. The first took place in 510 B.C. when Rome expelled its last king and established the republic. The new republican constitution split both the executive and legislative branches of government into two or more. It replaced the king with two magistrates, the consuls, who were jointly endowed with full executive power, and separated/divided legislative power among several citizen assemblies. The Roman Republic, which became a superpower along the way, lasted for just under five hundred years before it fell when a concentration of power in just one person – Augustus – effectively returned the state to a monarchy under the Empire. In deliberately rejecting the plural executive of the Roman Republic, a far larger version of which was tried and failed during the Articles of Confederation, the Framers hewed too closely to the monarchical structure of government they were nominally rejecting. They effectively replaced the king with a president, and the distinctive British conception of separation of powers between King and Parliament with the analogous one between President and Congress. Hamilton’s Federalist 69 on the differences between the powers of King George and (likely) President George – including an absolute versus a qualified veto of legislation – is arresting in its strained, almost scholastic reasoning and “methinks he protests too much” quality.
What is more, the Framers’ conception of the British structure of government was out of date at the time in exaggerating the personal powers of the hated monarch, who is repeatedly referred to in the Federalist as “the sole executive magistrate.” Accordingly, in adopting this model of the single executive they overlooked the changes that were already beginning to transform the British system into what would soon become the collective executive of Cabinet government with the prime minister as “first among equals.” The Framers did not so much reject parliamentarism as fail to recognize it. There is not a single mention of the office of prime minister in the Federalist. While they adopted a rigid version of Britain’s separation of powers between King and Parliament, in constitutionally flexible England the king’s powers were starting to be transferred to the parliamentary leadership in his name. As a result, the Framers bequeathed the new country the functional equivalent of an entrenched, albeit indirectly elected and fixed-term, ruling monarchy at a time when the British system was evolving in the direction of a ceremonial one. Within two generations, for example, the king’s veto of legislation – the Royal Assent – was understood to have disappeared entirely except as a pure formality, while the president’s “qualified” one remains. Even if Hamilton was right in 1787, he was wrong within fifty years – whether the object of comparison is monarch or prime minister.
It was only first the general “enlightened” spirit of the founding generation, and then federalism and American anti-governmentalism that delayed the full-flowering of the latent concentration of power in the quasi-monarchical structure that they locked us into. Once the shackles of federalism were mostly thrown off with the demands of activist government during the New Deal, the conditions were finally ripe for the imperial presidency. The claim of the inherent powers of the president has become the new divine right of kings. No doubt the factors that Bruce cites are important contingent and unpredictable ones in a total account of the heights that presidential power has now reached, but the seeds were sown at the outset. And since the U.S. established the model not only of judicial review but also of presidential government, many of the pathologies of that system have since been exported elsewhere – although the kingly veto power is sometimes withheld.
On its face, Bruce’s warning about the dangers of presidential charismatic extremism and bureaucratic lawlessness is both timely (given the continuing claims to power asserted and acted upon since 9/11) and untimely. For the very same forces of primaries, political consultants, opinion polls, sound bites, death of serious journalism, and the internet that Bruce compellingly argues have created the politics of unreason and the risk of extremism at the presidential level also operate at the congressional level, and on November 2 may result in an extremist Republican majority in both House and Senate. Indeed, with the ouster of moderates, the growing influence of demagogic media commentators, and the rise of the Tea Party, the potential for extremism appears to have been realized within Congress. And this more equal opportunity picture of structural pathologies both problematizes and helps to confirm Bruce’s concerns. For although the depth of such a stalemate would, on the one hand, epitomize the classic inter-institutional checking function of separation of power/party within presidential systems and the key difference from parliamentary ones, on the other its very depth would make the usual pathologies more risky by substantially increasing presidential incentives for extra-congressional, executive modes of governance and new acts of lawlessness that these forces have made possible. This is the recipe for the U.S. version of what Bruce has previously called the “Linzian nightmare.”
Of course, many of these same forces operate not only in American presidential and congressional elections, but everywhere and in all systems. Executives are now almost universally the most powerful/dangerous branch of government (perhaps Iran and China aside), and concentration of power in the chief executive is the norm. Nineteenth century collective cabinet government in Britain has given way to an increasingly concentrated, presidential style of prime ministerial government, with far more open methods of selecting party leaders by rank and file party members that approximates the primary system, great emphasis on personality and broader media skills rather than traditional parliamentary debating chops, and most recently televised debates for the first time. Israel’s parliamentary system has managed to incorporate direct election of the prime minister. Extremist parties, mostly of the right, are bursting through the “constrained parliamentarianism” barriers of minimum threshold popular support for the first time in one European country after another, most recently in Sweden. The French presidential system has defied the standard separation of legislative and executive powers by allocating residual, non-enumerated lawmaking powers to the executive via decree – and has been the model, at least in terms of broad decree powers, for several more recent systems in central and Eastern Europe. Nonetheless, despite these developments, both parliamentary and semi-presidential systems inherently have more plural executives than presidential ones and in this important (I’m tempted to say republican) way provide less concentration of power. Not that Bruce would necessarily deny any of this, as an avowed constrained parliamentarian in ideal or comparative terms. Decline and Fall focuses on the American Republic, or what is left of it.
Turning to Bruce’s invitation to augment his set of new checks and balances on the presidency, it is probably too late in the day to correct the Framers’ error and revive the ancient republican technique of splitting executive power into two. As an attempt to counter extremism and the politics of unreason, Deliberation Day is a splendid idea but perhaps needs to be supplemented. As Bruce suggests, by the time the general election arrives these forces have already had their impact. To the extent that low primary turnouts work in favor of more extreme, highly motivated activists and their favored candidates, creating new incentives to vote – perhaps tax credits or reduced jury service—might help to counter this trend. Of course, the very system of voter-initiated registration favors relatively motivated citizens in the first place, and the shockingly high rate of administrative disfranchisement (by comparative standards) that this system creates ought to be sufficient reason to replace it.
One critical reason that ordinary voters have abandoned much of the terrain of democratic politics to more highly motivated activists is the apathy bred by the perception that politics has become the private property of the wealthy – either directly as instantly viable candidates or indirectly through the perceived corrupting effect of privately funded reelection campaigns: one dollar, one vote. To help counter this, Bruce and Ian Ayres have previously proposed a novel system of federal democracy vouchers to try and return the apparent priority to voters from contributors. And it is possible that the Supreme Court will change its mind and view the concern with independent expenditures as a compelling one. More radically, though probably less pragmatically, prohibiting reelection altogether by congressional imposition of single-term limits for its members (Roman consuls could serve for only one term) would cut to the heart of the problem.
Finally, as Bruce argues, along with the modern development of a hugely powerful White House staff of superloyalists, one of the key factors that has enhanced the concentration of presidential power and the politics of unreason is the politicization of administration brought about by replacing high-level permanent civil servants with political appointees. This has occurred in all parts of the bureaucracy including those providing legal advice to the president. There are two general ways to try and remedy this problem: establishing input or output controls. Bruce’s highly original suggestion of a new Supreme Executive Tribunal to review the legality/constitutionality of executive action on an earlier and more regular basis than is structurally possible within the ordinary federal court system strikes me as an excellent output control. But politically, and perhaps constitutionally, it may be prudent to have an input control on the table as well.
The fact that presidents will want to replace professional administrators – whose interests might lead them to try and play off congressional and White House leadership against each other -- with political loyalists at every opportunity does not mean that this desire must or should be accommodated. Other presidential systems have professional civil servants in charge of administration and permanent government lawyers rendering legal advice before action, with far fewer political appointees. The modern spoils system is hardly as entrenched or longstanding as other “untouchable” factors, and is almost certainly of extra-constitutional status: permissible but not required. Accordingly, Congress should be able – and should – limit the scope of political appointments throughout the bureaucracy, thereby enhancing the role of expertise over partisanship, and ensure the presence of permanent government lawyers in elite corps such as OLC in particular. Conceivably, like the Conseil d’Etat in France in its multiple capacities, a version of the executive tribunal could act as both ex ante expert legal advisor to the executive and ex-post reviewer of its actions.
Once again, Bruce has rendered sterling service to the Republic as well as to Yale.
Stephen Gardbaum is the MacArthur Foundation Professor of International Justice & Human Rights at UCLA School of Law. You can reach him by e-mail at gardbaum at law.ucla.edu. Posted
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