Sunday, December 04, 2011

The Twilight of the Last Banana Republic?

Guest Blogger

Miguel Schor

The failure of the so-called Congressional super committee to reach a compromise on a plan to deal with the budget deficit calls into question our system of separation of powers. The question is whether gridlock is a constitutional flaw or a virtue. Justice Scalia, in recent testimony before the Senate, was unapologetic in his defense of separation of powers. What sets the United States apart from other countries, he stated, was not the Bill of Rights, which “every banana republic” has, but separation of powers. Americans, he concluded, “should learn to love the gridlock.”

Americans are not learning to love gridlock. Congressional approval ratings are at record lows. The government is paralyzed at a time when action is badly needed to deal with a severe economic downturn. American citizens, unlike Justice Scalia, understand what is the source of the problem. The first job of government is to govern. The framers, after all, proclaimed in the Preamble to the Constitution that the job of our government is “to promote the general Welfare.”

The question is what constitutional roadblocks to governance exist in the other republics of the world? The considered judgment of the world’s developed democracies, the majority of which are parliamentary governments, is that gridlock is a constitutional bug, not a virtue. Written constitutions have a tough job to do: they empower government to solve national problems and seek to limit the exercise of that power. There is a crucial difference, however, between constitutional systems that favor affording government the power to put in place policies for which it will be held accountable and those that disfavor affording government that power. Historically, presidentialism emphasized the importance of limits whereas parliamentary government emphasized the importance of power. The point is that virtually no other developed democracy seeks to constitutionally cripple the ability of the government to promote the general welfare. Parliamentary governments can and do suffer from a variety of democratic pathologies but they do not superimpose constitutional roadblocks on top of any political roadblocks that may exist.

But what about our sister republics of Latin America? They after all adopted presidentialism in the nineteenth century but it has become presidentialism with a twist. The advent of democracy in the 1980s occurred during very difficult economic circumstances. Presidents sought and obtained legislative or decree powers to deal with these problems. The result is a hybrid presidentialism that moves the constitutional systems of Latin America closer to parliamentary government inasmuch as it favors affording government the power to implement policies for which it will be held accountable. If Barack Obama had been fortunate enough to have been elected President of a Spanish speaking democracy located south of the border, he would have the power to actually govern.

While Justice Scalia is right that our system of separation of powers is exceptional, he is badly mistaken in his understanding of how banana republics operate. Separation of powers has not been too terrible a bug in our system of government because political actors understood that compromise was necessary to make government work. Since political parties were ideologically heterogeneous for much of our history, moreover, political actors had little choice but to bargain. Bargaining was woven into our democratic politics and etched into the Constitution.

The United States is now embarked on a great constitutional experiment. Our political system has become ideologically polarized but our constitutional system demands bargaining. The emergence of politically homogeneous parties that are better suited to parliamentary than presidential democracy has undermined, perhaps fatally, the ability of political actors to compromise. In a system of separation of powers, to bargain is to govern. The current inability of our government to promote the general welfare of the nation is the true hallmark of a banana republic and may yet prove our undoing.

Miguel Schor is Professor of Law at Suffolk University Law School. You can reach him by e-mail at

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