Sunday, April 15, 2007

More on presidential dictatorship

Sandy Levinson

I have gotten into hot water before by suggesting that our vaunted (and highly defective) Constitution in effect creates a partial presidential dictatorship. Some people, wrongly I believe, assume that the notion of "a partial...dictatorship" is an oxymoron. I will address that point more below. Others, just as wrongly, say that we can't describe the President as a dictator because, after all, he (and I won't bother adding the usual "or she" in this particular posting) is "accountable" to We the People, unlike "real" dictators.

So let me explain: First, as to the "partial" nature of the dictatorship. No one would argue that the president has anything approaching dictatorial power with regard to making changes happen on the domestic side. Indeed, presidents traditionally learn early on in their terms that we have a constitutional system geared for gridlock and that they can achieve little, if any, of their more ambitious agendas, such a medical care reform for Clinton or privatizing social security for Bush. To be sure, as Elena Kagan explained in a brilliant article on the Clinton Administration's version of the administrative state, aggressive presidents can try to capture control of some of the executive agencies and use their power to get compatible regulatory changes that have not (and might well not) be approved by Congress, but, at the end of the day, it would indeed be hyperbolic to describe this as "dictatorial," not least because an aroused Congress has a variety of ways of exacting revenge against administrative agencies who become clear outliers relative to congressional preferences.

Where "dictatorship" becomes somewhat less hyperbolic is with regard to the policy-based presidential veto that I have previously railed against. Here, one man, with the stroke of a pen, can negate the judgment of majorities of both houses. Yes, it's true that vetoes can theoretically be overridden, but as I demonstrate in my book (which I won't bother to name, since you can find it in the right margin), the "success" rate for presidents is approximatly 95%. So even if presidents have limited power to make things happen, with regard to domestic policy, they have close to absolute power to prevent things from happening, at least at the national level, unless the particular policy in question can survive both a partisan-gerrymandered House and a Senate that gives unconsionable power to senators representing small-population states. (States, of course, may take the lead, as is happening to an extent both with medical and environmental policy, but for all sorts of well-known reasons, policy in these areas must ultimately be made at the national (or, re the environment, international) level rather than left to smaller units of government.

One defense of the veto, as well as other exercises of presidential power (especially by "unitary executive" buffs) is that the president is "accountable" to the electorate. This may be true in the first term of a presidency, when one assumes a) that a president will wish to run for re-election and b) that a president will behave as a "rational actor" and shape actions around the prospect of appealing to voters. But this model has not apparent application to a second-term president, who knows above all that he will be out of office in a measurable number of days (currently, I believe 655) and will never be facing the electorate again. If the president is a loyal party man, then one might build in a "transferred accountability" notion, by which the altruistic president will shape actions about what will help a future candidate from his own party, but that may be a stretch, particularly when we come to the area where the term "dictatorship" is most appropriate, which is foreign and military policy.

Ironically, in these areas, it's not even crystal clear that we would want a president to be "accountable" to the public in the way described above if that meant that a president would engage in actions that he believed would be harmful to American foreign policy or security interests merely to pander to voters. Sure, this occurs--see, e.g., the idiotic boycott of Cuba because of the fortuitous power of Cuban-Americans in Miami (and, to some degree, in Jersey City)--but there are few who will defend such phenomena on "political grounds" alone. (If you think the boycott is a good idea, fine. Then the president is doing the right thing and not pandering. Don't bother sending in comments about how bad Castro is and how efficacious the boycott is.) But does anyone believe, for example, that someone so smart as Bill Clinton believed that our Cuba policy made the slightest bit of sense? And does anyone believe that Hillary Clinton is any more committed to that policy on the merits than her husband most probably was(n't)?)

And, incidentally, one might place the presidential pardon in the basket of "dictatorial powers," if presidents choose to use them that way. Just as veto can negate the solemn judgment of majorities of both houses of Congress, so can a pardon negate the conclusions of a jury and of the judiciary. Can you spell I. Lewis Libby or, for that matter, Caspar Weinberger, the beneficiary of a pardon at the very end of George H. W. Bush's administration, a far, far more serious act than Bill Clinton's presumptively indefensible pardon of Marc Rich? Pardons, of course, are directly traceable to the prerogatives of kingship. I'm actually not opposed to a presidential pardon power, but we should note that it is in fact subject to abuse, whether or not there is a legal remedy for such abuse.

In any event, second-term presidents have none of the "electoral connection," with regard to their own retention in office, that David Mayhew so memorably describes when discussing members of Congress. And even if a lame-duck president has an interest in the mid-term election, given its relevance to the potential success of his agenda, there is no such "connection" in the last two-years of an eight-year term, which is, of course, our own present situation. Let me suggest, incidentally, that one relevant difference between Clinton's request for the resignation of all 93 US Attorneys and Bush's more recent efforts, is precisely that Clinton as acting at the beginning of his first term, and if there's anything we know about Bill Clinton, it is that he was thinking from day one of his next campaign. Thus he presumably expected to be held "accountable" in the 1996 campaign, though, interestingly enough, no one seemed to care. George W. Bush, on the other hand, is acting in an extremely different context, where there is no such electoral incentive to keep him (or Karl Rove) minimally honest (and, guess what, they aren't).

Nor can one maintain that "accountability" is provided by some previous "authorization" by an electorate. Even if one believes that mass electorates can be said to "authorize" particular policies, to rely on past elections for some general decisional authority by a president is to adopt something far closer to a notion of "limited-term dictatorship" than a truly "accountable" presidency. (As I shall note below, there is no necessary contradiction in describing someone as a "limited-term" dictator.)

So, as Mr. Bush so unforgettably described himself, in certain realms he is, indeed, "the decider," with little or no accountability in any formal sense. The threat of impeachment doesn't work, for at least two reasons. One is that it is spectacularly unlikely in fact to work as a means of getting rid of a president. The second is that the Constitution forces us into an almost entirely beside-the-point debate about whether the president has committed a "high crime and misdemeanor" rather than the proper debate about whether his policies are in fact a menace to the nation and the world (not to mention the brave young (and not so young) men and women whose lives are indeed being "wasted," as was said in incautious moments by Sen. John McCain
and Sen. Barack Obama). What I believe we need, as most of you know, is some system for a vote of no-confidence, which would make a president accountable, but there's no point in rehearsing that oft-presented argument.

Most Americans have an unanalyzed picture of "dictatorship," revolving around, say, "ideal- type" dictators like Stalin, Hitler, Castro, or Saddam Hussein. But, as Clinton Rossiter pointed out almost sixty years ago in a marvelous (and scary) book, Constitutional Dictatorship, such dictatorships are only at one end of a spectrum. The notion of institutionalized (and limited) dictatorship goes back to ancient Rome. One might not be able to be partially pregnant, but one can be a "partial dictator" if there is a policy domain over which one has basically near-absolute authority, even if it's only for a specified period of time, without fearing political consequences beyond loss of popularity. (And certain "leaders," including, one suspects, Mr. Bush, to some extent luxuriates in his present unpopularity as a sign that he is indeed standing up for principles, just as did his hero Winston Churchill during theh 1930s.) Some defend the DOJ purge on ground that the US Attorneys are mere "employees at will," subject to presidential whim; would they support the right of Bush, like Caligula, to appoint his horse (named, in this case, Alberto "Fredo" Gonzales)? In any event, I believe they are adopting a theory of government akin to dictatorship. I might be unfair to them if they recognize Congress's genuine participation in the appointment process and the right to refuse to confirm some of these nominees, though I would then expect them to support the repeal of the the Administration's cleverly salted recent legislation that operated precisely to cut Congress out of the loop.

It's probably true that I wouldn't be moved to be reflecting so much on "constitutional dictatorship" if it weren't for my opposition to George W. Bush, which I know that some of you believe is over the top. Even if it is, I am offering an institutional analysis that applies to all of our contemporary presidents, particularly in their second terms after mid-term elections. And, for what it is worth, for all of my loathing of Mr. Bush, I have publicly opposed, in an essay in The Nation, impeaching him. Even I concede that there is nothing that can be done (other, for those who believe it is efficacious, than to pray that the great "decider" gains some wisdom to go along with his arrogance) about the Bush presidency. But we have another president who will take over on Jan. 20, 2009, and, regardless of our political preferences, we might have a useful conversation about whether we're entirely happy with the kinds of powers--including smothering with "executive privilege" communications from party hacks whose sole job is to aggrandize presidential power--that that man or woman will have, particularly in the second term.

Carl Sandburg once wrote that "the fog comes in on little cats feet." So can authoritarian/dictatorial governance. This is the discussion we ought to be having as we decide who shall next inhabit the White House. But, of course, one thing that prevents its taking place, besides the "horse-race" media coverage of the races, is that such a discussion requires admitting that our sacred Constitution might not be the barrier against tyranny (even if the tyrant has only a limited term) that we'd like to think it is.


Impeachment may be, as you say in your essay, politically pointless, but it would be incredibly significant from an institutional standpoint. A Bruce Fein has pointed out, the precedents of the Bush administration will sit around like loaded weapons, just waiting for the executive who can cite an urgent need. Perhaps amending the constitution would be a better long term solution, but the consequences of an unrestrained executive could present themselves much sooner. At the very minimum, Congress might at some point reconsider a censure resolution to assert their understanding of the separation of powers as it pertains to any number of controversies. Wouldn't such a vote be similar in effect to a vote of no confidence? Or are there constitutional problems with such action?

And its 645 days.

This post re-states some past arguments, so various replies can be equally cited. I still don't know why it would be so darn complicated to find "high crimes and misdemeanors" in this case.

It is not counting angels on a pin given the lists of violations raised by many people. I have this idea this is ignored for some sort of strategic point, akin to thinking that the modern administrative state was impossible since hey it wasn't really done ... before it was.

The breadth of "dictator-like" powers is also interesting. Is prosecutorial discretion a problem then, esp. as decided from up high, perhaps if we can have a grand jury (representing the populance) decided whether or not to bring the case? If it decides yes, is it "dicatatorial" for a single prosecutor to decide to not bring the case to fruitation, perhaps for a reason not compelled by civil liberties concerns?

IOW, any number of decisions boil down to acts of one. Not just in the executive dept. I'm sure some are troubling, like the power of individual senators (is senatorial courtesy overall, including for local officials, to be damned totally? etc.) in practice.

Finally, to get anything done, the President (usually) has to compromise if Congress cares to challenge singular acts in various cases. Bush himself pulled back repeatedly, as various lists of his "flip flops" suggest. And, overall, over history, Presidents acted more carefully, even if their had the power not to do so.

But, the concern is there, surely, and the professor supplies food for thought.

Sandy: I think the reason why people are offended by the claim that President Bush is exercising the powers of a constitutional dictator (i.e., unlimited powers in certain areas) is that they mistakenly think that a dictatorship means a totalitarian dictatorship. This administration, for all its faults, is clearly not that sort of dictatorship. A much better comparison, I would argue, is with the nations that borrowed presidentialism from us, namely the republics of Latin America. There the line between presidential democracy and constitutional dictatorship has long been blurred as presidents (and generals) used the fear of insurrection to augment their power. Similarly, President Bush has used the so-called war on terror to augment his power. If we want to get a good idea of what the consequences of what the war on terror will be, we only need to look south of our border. The consequences will be a blurring of the lines between presidential democracy and constitutional dictatorship. Miguel

I regard all of these comments as friendly. I would not object to an attempt to "censure" President Bush for "abuses of office." I agree with Nicholas (and, apparently, Bruce Fein) that the Bush presidency indeed has generated precedents that are available to successors who may wish to be equally "strong" presidents (such as, I suspect, Hillary Clinton).

As for Miguel's important point about the virtues of looking south for evidence, he is absolutely correct, just as he is with regard to distinguishing between "totalitarian" dictatorships (which Bush gives no evidence of aspiring to) and the more limited domain dictatorship to which Miguel draws our attention. I'd also note that Kim Lane Scheppele, a sometime contributor to Balkinization, is doing absolutely seminal work on the world-wide growth of executive power that is occurring partly in response to UN Security Council resolutions encouraging an "emergency-power" view of what is necessary to fight the "global war on terrorism." Part of her argument is elaborated in an article that recently appeared in the Georgia Law Review, responding to my own essay on "Constitutional Norms and Permanent Emergencies." I strongly recommend her response and, indeed, anything that she has published on the subject.

I completely agree with you about the Bush presidency, but I disagree to some extent about the remedies.

The basic problem is that we need to give the Executive some discretion in order to accomplish good. At the same time, of course, we'd like to prevent that discretion from being misused, but taking away the power also means taking away the ability when we need it.

From my perspective, the real failures of the last 7 years have been the Courts (the decision in Bush v. Gore was indefensible); Congress (where the Republican majority sacrificed the national interest to partisan interests); and the press (which woefully failed to expose the lies and inadequacies of the Administration).

For these reasons, I think the problem is broader than you suggest, but, perhaps, easier to fix. Good effects might come from relatively minor changes in the Executive such as reducing a veto override to 60 votes or eliminating executive privilege in order to assure transparency or writing the War Powers Act into the Constitution. At the same time, though, we need to focus on the failure of Congress and the courts to fulfill their responsibilities and of the press to change its "he said/she said" style of "reporting". Whatever we do with or to the presidency can't alone suffice; only countervailing power can do that.

May I point out that decreasing the votes necessary to override a veto would itself require a constitutional amendment, since the magic 2/3 requirement is in the text.

Changing executive privilege--I'm not sure that even I would favor eliminating it entirely--would presumably require a statute that could itself be vetoed by the President. And, of course, any prosecution for contempt of Congress appears to have to go through the DOJ controlled by the President.

As for the failures of Congress, one of the reasons I have been so vigorously commending Darryl (no relation) Levinson's work is that he demonstrates that the "villain," if such it is, is the party system that leads members of Congress to play dead with regard to presidents of their own party. That we see a Democratic Congress now vigorously investigating the Executive is evidence of how the party system operates, in conjunction with separated institutions, rather than a sign that a reified entity called "congress" has suddenly determined to wake up from its four-year slumbers. I don't how much I would trust the present Congress to engage in significant oversight over a Clinton presidency for just that reason.

As for the failures of Congress, one of the reasons I have been so vigorously commending Darryl (no relation) Levinson's work is that he demonstrates that the "villain," if such it is, is the party system that leads members of Congress to play dead with regard to presidents of their own party.

I would agree. So long as the parties remain as polarized as they are today, our choices are divided government, with little getting done, or one-party government, with abuses running unchecked. Divided government is the lesser evil.

Sandy, it seems like you are describing a system that looks a lot like Mexico, only with the additional twist of a second, four year term.

That's worked out well.

[T]he "villain," if such it is, is the party system that leads members of Congress to play dead with regard to presidents of their own party. That we see a Democratic Congress now vigorously investigating the Executive is evidence of how the party system operates, in conjunction with separated institutions, rather than a sign that a reified entity called "congress" has suddenly determined to wake up from its four-year slumbers. I don't how much I would trust the present Congress to engage in significant oversight over a Clinton presidency for just that reason.

I am re-reading your posts that reference D. Levinson, such as this one...


Whenever I see this observation and criticism of the two party system, and it's tendency towards polarization, even when the differences between the parties themselves are relatively minor, only becoming distorted and magnified by the lens of media, I am reminded of Duverger's Law. I'm sure most of you learned gentlemen are familiar with it. Hamilton could never have known about it. It
wasn't "discovered" and become "law" until after 1960.

I would agree. So long as the parties remain as polarized as they are today, our choices are divided government, with little getting done, or one-party government, with abuses running unchecked. Divided government is the lesser evil.

If polarized and divided government is the lesser evil, and Monsieur Duverger is correct, we may be stuck with it unless we make some changes.

May I point out that decreasing the votes necessary to override a veto would itself require a constitutional amendment, since the magic 2/3 requirement is in the text.

Of course, but there are different dynamics to the situation. With an amendment there's no immediate partisan issue as there is with a veto. Thus, party loyalty isn't on the line. Relatedly, Congress has institutional interests which may incline them to support a lower threshold; it makes Congress more influential, after all.

It's also possible to "sweeten" the amendment in order to avoid potential resistance. For example, it could be written so as not to take effect for 4 years, thereby making it unclear which party will benefit. Alternatively, it might be combined with some other issue of importance such as a line item veto.

So long as the parties remain as polarized as they are today, our choices are divided government, with little getting done, or one-party government, with abuses running unchecked. Divided government is the lesser evil.

I personally think gerrymandering causes much of the problem. If we could eliminate that (yeah, I know), there might be less incentive to wish for divided government.

Mark Field is absolutely right that we ought to be able to have a quite non-partisan discussion right now about whether we want the president elected in 2012 to a) have a policy-based veto at all or b) cut down the override requirement to 60% instead of two-thirds. This surely wouldn't require a convention. The real question, of course, is whether anyone in the "real" political system (to be distinguished from the blogosphere) would be willing to make such a proposal.

Professor Levinson:

I have a hard time seeing the President's range of plenary powers (which are primarily limited to foreign policy) to be any more "dictatorial" than Congress' much broader range of plenary powers.

Plenary powers are not dictatorial. Rather, they are simply a division of duties.

No plenary power granted to either elected branch is free from checks by the other branch. Congress may check the President's foreign policy powers through the power to declare war, raise money and approve treaties. The President has the veto.

If the stakes are high enough, the Congress has the ultimate trump of impeachment. The President cannot remove a Congress.

Institutionally, the Congress has far more power than the President under the Constitution. However, this is balanced somewhat by the fact that the Executive has one decision maker wielding power - the President - while the Congress can tie itself in knots and must rule through consensus.

However, this in itself does not make the President a "dictator." Dictators can dictate policy. However, the President is subject to congressional and judicial checks and balances.

You make an interesting point about the lack of accountability for a term limited President in his final term which is not shared by congressional representatives and senators who can run over and over again for a lifetime.

However, I would also observe that a President who cannot run again is also at the nadir of his power because he cannot punish a recalcitrant Congress by running against it in the next election. Indeed, the off year election in a President's second term often results in substantial losses for the President's party in Congress, weakening him further. Thus, the Congress will begin ignoring the "lame duck" President more and more as time passes after the second election and especially when new faces take the lead for the party as the next presidential election gets underway.

Thus, a President in his second term is more often reduced to second fiddle rather than promoted to dictator over Congress.

I think that both Mr. DePalma and I are correct. That is, a lameduck president's powers are certainly reduced in precisely the way he suggests. On the other hand, the President retains a great deal of formal power, and, as we see daily, he can exercise this formal power without having to get the consent of Congress. That is just what "plenary power" means.

And, of course, I don't think that impeachment represents a serious threat to most presidents. I continue to believe that the Republicans would never have impeached Clinton had they not been confident that the Senate would not convict and therefore put Al Gore in the White House, free to run as the incumbent. Impeachment can tie up a president's domestic agenda, as it most certainly did for Clinton, but it doesn't affect his formal military or foreign policy authority.

Mark Field:

or writing the War Powers Act into the Constitution....

Been there, done that. What we need to do is to getthe freakin' courts off their butts and get them to say that the Constitution means what it says. To my mind, the reluctance fo the courts to do so previously has to do with some deference in times of at least debatable threats to national security and interests. Maybe the present situation(s?) may make an excellent time for the courts to say "enough's enough" and rein in the executive usurpation of a sometimes-more-than-willingly-delegated war powers, and perhaps a closer look at whether in fact the "exigencies" cited for a need for the executive to engage in precipiate action w/o Congressional action really make sense. In my mind, they don't (and what the Founders thought that the limits on such unilateral executive actions were back then aren't too much different from what pertains today).

Maybe with such a stoopid and unnecessary war, we have the right vehicle to really properly assess the proper roles of Congress and the executive.

Prof. Levinson:

I continue to believe that the Republicans would never have impeached Clinton had they not been confident that the Senate would not convict and therefore put Al Gore in the White House, free to run as the incumbent.

Prof. Levinson: I think you ascribe to them more rationality than warranted, and far less hostility and anger. As for the consequences and sequelae, I suspect they were like the Underpants Gnomes.


I too would be taken aback by the claim that the President of the United States is a partial dictator simply because at this point in time the word is defined more by current usage than the nature of the Roman office.

But Professor Levinson gets at some very fundamental value issues with his characterization. If I had to choose between (a) being ruled by a King who I could sue in common law court and whose powers were limited and dependent upon securing basic rights of the people, and (b) being ruled by a perfectly democratic body that had unrestricted and undelegated authority, I would choose the King.

To me some of the most problematic aspects of some of the President's unchecked powers are that modern office holders don't feel a responsibility to use them. There are far more people than Scooter Libby who have a case for pardoning.

Foreign policy is a tougher question. If the President really had dictatorial powers in that arena, we wouldn't be arguing about his powers in Gitmo. He could simply declare himself judge, jury, executioner, and court stenographer. Or rather, he could declare it and be unchallenged.

I am surprised that Professor Levinson expresses the least concern about regulatory agencies. Veto and pardon powers are limited and defined, but regulatory agencies touch nearly every aspect of modern life. Here the King's powers are least guaranteed to be premised upon respect for the rights of the people, and they can do the most amount of active harm to ordinary Americans.

I think you ascribe to [the Republicans who impeached Clinton] more rationality than warranted, and far less hostility and anger. As for the consequences and sequelae, I suspect they were like the Underpants Gnomes.

I remember at the time that there were lots of ordinary Republicans who supported impeachment but didn't want Gore to be the incumbent.

It's really a matter of a different irrationality: the Republicans impeached Clinton as a value statement rather than a practical measure. It was an expression of their moral contempt for Clinton rather than an attempt to accomplish a goal.

I will leave it as an excercise to the reader to note other Republican policies that better serve to express a moral value than to accomplish their ostensible goal.

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I sort of referenced the point earlier, but Mark Field is quite right in focusing at the breadth of the problem. I honestly fear that this is not always done here, and the hope for reform and change (consider all that was done just since early January in Congress) is deemed as too hopeless.

The presidency inherently has some problems, and unlike some here imply, Sandy Levinson has been say so before 1/20/01, but this one has been particularly so. And, the lack of adequate checks and balances (plus 9/11 ... before 9/11 his credibility was already slipping and after 9/11 helped the Rs regain control of the Senate) is a major part of the problem.

As to Arne and the courts, a tragedy is that Bush v. Gore perverted the hope for an adequate check in this regard, though there is some hope given even Bush appointees realize some limits on executive power. The SC and lower courts in the immediate future, until grade school children go to college in various cases, will have the balance of power in large part controlled by Bush judges.

It is a bit depressing.

JimM47... I am surprised that Professor Levinson expresses the least concern about regulatory agencies

Perhaps because they don't, as a rule, arrest, detain and execute you?

Maybe the underlying issue is that our system isn't all that well designed? That we're tinkering with a system that wasn't that competently designed in the first place, but was just a stop-gap measure?

We always work from the assumption that the US Constitution is a work of genius, that the "Founding Fathers" were exceptional, that our success as a nation over the last century and a half is due to their fine craftsmanship. This naturally leads to discussions on how to tweak the congress or the presidency.

Is that true? If not, discussing tweaking is downright silly - it won't make a significant difference.

Why would I suspect that it's not true? Well, as pointed out up-thread, the basic presidentialist model has been tried throughout the Americas, and has failed, often disastrously, everywhere but in the US. It naturally leads towards dictatorship, or at least to a destructive centralization of power.

How are we different? One possibility is that our legal system is not Napoleonic but common-law, which creates a certain judicial friction against centralizing power.

But the most obvious difference is wealth: our nation was founded at one edge of an extraordinarily wealthy continent, but whose native peoples were extraordinarily technologically unsophisticated. In South and Central America there simply did not exist the same opportunity to steal a continent - Central America had large cities, and South America is geographically split by the spine of the Andes. Additionally, North America is much closer via ocean trade routes with both Europe and Asia, giving it a huge trade advantage over our southern neighbors (the most successful of which, Chile and Argentina, were on those same trade routes before the opening of the Panama canal).

So maybe, just maybe, almost any system would have succeeded that was friendly to business and technologically advanced. We didn't need to be geniuses, we didn't need a well designed political system, just a minimally competent system. Our advantaged position made it inevitable that almost any such system would succeed. And now we face a changed world and a matured nation: the cracks will emerge (and have been emerging), decade by decade. If that is so, tinkering with presidential power will do little to avoid the oncoming problems.

I very much appreciate RandomSequence's comments. They obviously are congruent with my own general critique of the Constitution, but they may actually be even deeper in their implications. For the ultimate question is whether any conceivable political system will offer that mix of "energy" and protections against tyranny that is at the heart of the liberal constitutionalist project. It would be foolish indeed for me to argue that any revised Constitution that came out of a constitutional convention, even if supported it in all respects, would in fact be a sufficient cure for the various ailments we face in the 21st century, ranging from global warming to the full economic awakening of Asia and, I suspect in coming years, Africa.


I've been waiting to see if anybody else would say it, but nobody has, so -- here goes:

Lacking a mathematics of politics I cannot prove this, but I rather strongly suspect that any office powerful enough to be effective can be abused by an unscrupulous person. (Call this Godel's theorem of politics.)

In a perfect world, a system designed around checks and balances would be sufficient to restrain such an executive, but as we see in the world we have, those whose job it should be to perform the balancing may instead be unwilling or unable to balance.

The electorate may be misinformed or misled into returning those who have not done their constitutional duty, and how do you contemplate forcing the electorate to perform their portion of the task of upholding their freedom?

A new constitution, while possibly fixing some problems with our current system, does not appear to me to have a good chance to fix any of the above problems, and they are at the center of the problems we face today.


Why should any particular office be effective? In all seriousness, in any security situation, you always partition effectiveness across numerous offices requiring consensus to act. Two different keys have to be turned to launch a missile. The Romans had two consuls who could block each other. The Spartans had two kings. Some European countries use coalition systems, so any significant policy change without consensus is likely to collapse the government.

It's what is meant by checks and balances. But those checks and balances can not be static - in the dynamism of the real world, they need to be continually (at the rate of decades or centuries) re-partitioned. The "real" problem today is that a system designed to constrain a small bureaucracy is incapable of handling the massive bureaucracy of a world hegemon - see Rome for former examples. The bureaucrats (and their master, the president) outweigh the representative arms of the government. Our current system has too few points of capture to effectively control that bureaucracy (including the military).

Of course, you're right by Godel that any formal system is going to have "bugs". Any election system can be manipulated to thwart the electorate, for example. But that just means that we are in a constant arms race, fixing bugs as new ones appear - that's just the "Red Queen Effect" in biology.

Or is your position simply that the Swiss are smarter than we are?

Random Sequence:

The "real" problem today is that a system designed to constrain a small bureaucracy is incapable of handling the massive bureaucracy of a world hegemon - see Rome for former examples. The bureaucrats (and their master, the president) outweigh the representative arms of the government.

That, I think, encapsulates the real problem today. The executive power of government, all government, has grown beyond what anyone in the 18th century could have imagined. A form of government that was perfectly reasonable then is out of balance now because of the vast growth in executive power. Also, the Founders assumed political parties would be limited to the legislature and the excutive would be above partisanship. So we have an executive vastly larger than anyone in the 18th century could have foreseen, with an unabashedly partisan leader.

Brett, presumably, would say that we should cut back our executive to what it was in the 18th century and government will be back in balance, but I think the vast growth in executive power is necessary and inevitable for our highly complex, commercial, technically specialized society.

Significantly, newer government than ours do more to curb the executive. Most European governments are parliamentary and dispense with an independent executive altogether. Most US states have multiple executive offices, independently elected. Either approach, as you say, would require a radical reorganization of our government.

I strongly recommend Beyond Camelot: Rethinking the Modern State (Princeton U. Press, 2005), which is directly relevant to this discussion. It is worth the time it requires to go through Rubin's often disconcerting arguments (and, for the record, I'm not sure his use of Camelot as a metaphor works very well). What is so disturbing is that he believe that we simply junk a lot of our ordinary concepts of analyzing politics and law, including, among other things, "democracy." It's far from a perfect book, but he tackles many of the most basic issues that arise if we try to make sense of our contemporary constitutional order (in a way that has nothing at all to do with one's particular views of George W. Bush).

I would posit three primary reasons why our Repuiblic has flourished while others have failed.

1) The Framers succeeded in their goal of creating a constitutional system which limits the exercise of government power to the bare minimum necessary to govern. The vertical checks and balances between the federal and state governments and the horizontal checks and balances between the three branches of government require and effective super majority consensus to exercise power. Given the failure rate among our representative systems, I think the Founders found the right balance.

2) Short of a military coup, there is no way a President can exercise anything close to dictatorial power. Because this is so, we are well and truly blessed with a military which (with the exception of military funding) generally stays out of politics. The military is sworn to uphold the Constitution, not to declare loyalty to any particular government.

(However, as I posted before, I worry that this may change if the members of the military continue to come from the same families and membership in and support for the military continues to be a partisan affair.)

3) The Government generally respects the law. Probably because they were enacted with super majority support, there is no dispute over following the vast majority of laws. When there is a dispute between the branches or parties over the legitimacy of a law, the democratic branches have almost always respected the tie breaker function of the judiciary. For example, the caricature here of "King George" doesn't quite match the fact that the President has complied with court orders which have gone against him. Compare that with "KIng Abraham."

Random Sequence,

There may be no hope that we'll converge here, but let me just say a few things about your reply:

Vesting effectiveness in multiple, rather than single positions, is pretty much a recipe for responsibility failures and for ineffective government. Why have government at all, if it isn't going to be effective?

(That's rhetorical: I've got these strong libertarian leanings that answer that question for me.)

I've never been a big fan of Roman government, nor of Sparta. As for the Swiss, what little real predictive or explanatory "political science" exists indicates that, the more homogeneous a society is, the more effective a pure democracy is likely to be, or so I've seen argued.

My point was that the current failure in American government -- and let me state, for the record, that I absolutely agree with the Professor's assertion that we are currently living under a form of dictatorship, unaccountable to the wishes of the people -- anyway, the current situation appears to stem from a failure of the electorate to elect "good government" rather than directly from a hopelessly flawed constitution.

If the problem does lie with the electorate, then it seems that fixing other problems are unlikely to be effective.


There is a balance between completely ineffective and overly effective. We needn't go libertarian to reign in some "over-effectiveness".

The electorate is not disjoint from the system. In other words, just calling people idjits gets us no where - we are idjits for a reason, and I say it's the system.

You may be right about democracy working better with a closer common understanding. There's an easy fix to that - decentralize. Who thinks that a centralized nation of 300 million is a good idea? I certainly don't - hard to see how we could have democracy under those conditions.

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