Balkinization  

Wednesday, February 23, 2011

The Constitution in 2020: the Caesars or the Tudors?

Guest Blogger


Adrian Vermeule

A trope of tyrannophobic political discourse compares the American presidency with the government of the Caesars. T.B. Macaulay addressed a comparison between the Caesars and the Tudor monarchs (Henry VII, his son, and his grandchildren) in terms both withering and illuminating:
It has been said … that the Tudors were as absolute as the Caesars. Never was a parallel so unfortunate. The Caesars ruled despotically, by means of a great standing army, under the decent forms of a republican constitution. Our Tudors, on the other hand, under the titles and forms of monarchical supremacy, were essentially popular magistrates. Though the legal checks on their activities were feeble, the natural checks were strong. It was impossible for them to carry oppression beyond a certain point. They knew that, if the patience of the nation were severely tried, the nation would put forth its strength, and that its strength would be found irresistible.(Macaulay, Burleigh and His Times, in the Essays).

In The Executive Unbound: After the Madisonian Republic (Oxford University Press 2011), Eric Posner and I offer a picture of the American presidency, and the executive branch generally, that partakes of both the Caesars and the Tudors (as Macaulay portrays them). On one hand, the President commands a great standing army or indeed several of them, if we count his army of bureaucrats and advisers. Although the President rules “under the decent forms of a republican constitution” – the one from 1789 – his powers vastly exceed anything that could be inferred from the text of that document, principally because of the ever-increasing rate of change in the policy environment in the 20th century and the ever-diminishing institutional capacities of the Congress, both of which conspire to ensure that an ever-increasing amount of policy is made by the executive under broad and vague statutory delegations. Moreover, the presidency is the sole institution capable of acting in the real world, beyond the law books, and often proceeds through unilateral action, wielding “power without persuasion.”

On the other hand, the President, like the Tudor monarchs, is substantially constrained by the ambient force of mass public opinion and the implicit threat of political backlash. “Though the legal checks on [his] activities [are] feeble, the natural checks [are] strong.” Any modern President is a curious pushme-pullyu: possessing sweeping statutory and constitutional powers, he is enslaved to the opinion polls. Indeed, the administrative state over which the President reigns, and which is both a wellspring and a symptom of his power, itself tends to generate and sustain those political checks, in part because it helps to create a large class of secure, educated and wealthy elites who have both time and inclination to scrutinize executive action, donate to the American Civil Liberties Union and the Center for Constitutional Rights, and agitate against executive abuses.

So the answer to “the Caesars or the Tudors?,” as to the American presidency, might be “some of both.” But the even better answer – and this is actually the answer we give – is “neither,” because neither the Caesars nor the Tudors were elected (putting aside the need to maintain the loyalty of the legions or nobility). We envision the Constitution in 2020 as a plebiscitary, president-centered electoral democracy in which Congress and the courts have been reduced to marginal actors , who carp from the sidelines but for the most part end up deferring to executive power, if only because the executive is the least dysfunctional branch. Tyrannophobes who fear the “decline and fall of the American republic” mix up Gibbon and Plutarch, but they seemingly believe that a presidentialist democracy runs great risks of degenerating into some sort of Caesarism. The effective end of the Madisonian republic of separated powers, however, need not entail a collapse into tyranny. The evidence from comparative politics does not support any such prediction; although the literature does not reach many firm conclusions, one of the most solid and striking findings, by Adam Przeworski and his collaborators, is that no democracy has slid into authoritarianism if average per capita income exceeds about $6,000 in 1995 dollars. Weimar was below this threshold; the U.S. very far above it. The instability of presidentialist democracies in Latin America probably has little to do with presidentialism per se. The Constitution in 2020 will not be Madisonian, yet neither will it be Caesarist. In this respect, at least, we are not Rome.

Adrian Vermeule is John H. Watson, Jr. Professor of Law at Harvard Law School. You can reach him by e-mail at avermeule at law.harvard.edu

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