Audacity Within Limits: On Maxwell Stearns’ Parliamentary America

Sandy Levinson

For the Balkinization symposium on Maxwell Stearns, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (Johns Hopkins University Press, 2024).

Sanford Levinson

My comments on Max Stearns’ new book Parliamentary America  are divided into three sections.  The first is quite unmitigated praise.  The second two each expresses some reservations. 

I. The importance of “reflection and choice” as to how to be governed

Alexander Hamilton begins Federalist I by emphasizing the world-historical importance of Americans engaging in genuine “reflection and choice” about their mode of governance.  In theory, at least, the “popular sovereignty” spelled out in the thought of such theorists as Hobbes and Locke took the concrete form of “we the people” actually constituting our own governments rather than submitting to the choices made by others. 

Perhaps the key paradox in American constitutional thought is that we continue to embrace the importance of popular sovereignty—thus the importance of the Preamble and its announcement that “we the people” are “ordaining” our government—while resisting any invitation to engage in our own “reflection and choice.”  That apparently was done in 1787 or, for those who believe in the “second Founding” surrounding Reconstruction, in 1868.  It is not something we really need to spend our time thinking about.  It is one thing—though I believe ultimately fallacious—to insist on “originalism” as a way of interpreting the Constitution drafted in Philadelphia in 1787 and infrequently amended thereafter.  It is another thing entirely to accept that Constitution, even as amended, without serious reservation.  As a culture, we have, much to my own regret, acquiesced to James Madison’s desire, expressed in Federalist 49, that we “venerate” the Constitution rather than engaging in continued “reflection and choice” that might lead to radical emendation or even replacement of the existing—now recognized as radically imperfect—Constitution.  Ironically or not, this notion is now identified with the most radical side of Thomas Jefferson rather than being recognized as following from the introduction by his great adversary Alexander Hamilton, to what many, rightly or not, view as a foundation stone of American constitutionalism.

So it is not Steams’ worries about our collective future that makes him unique—or, these days, even that unusual.  Instead, it is his willingness to suggest that part of the fault is not simply in the stars, but in our vaunted Constitution; moreover, he offers very specific suggestions as to how to change the Constitution in ways that, he argues, would alleviate our truly desperate straits.  Most critics of our polity, including those named above, stop well short of where Stearns is willing to go on his own intellectual path.  For his audacity he should be unreservedly commended.  His book is a standing reproach to the intellectual conservatism of the legal academy—in which he himself serves—that has succumbed to a thorough-going “path dependance” that makes it impossible to think outside of the Constitution’s box.  Courses in “constitutional law” focus almost entirely on Supreme Court interpretations of the Constitution, what I have termed “the Constitution of Conversation”—i.e., the litigated Constitution—and almost never on what I call “the Constitution of Settlement”—i.e., the parts of the Constitution that are never litigated because, save in high-theory seminars, they are not genuinely open to debates about how to interpret them.  They are, however, open to debate about their wisdom, but the legal academy is so busy focusing on the cases that no time (or intellectual energy) appears to be left to debate evanescent “wisdom” rather than “legal meaning.”  To take Stearns seriously would require repair not only of “our broken democracy,” but also of our sclerotic legal academy.  So three cheers for Stearns’s aspirations and for his willingness to offer concrete suggestions to change, in some quite drastic ways, our present constitutional system.

II. The limits of Stearns “audacity” and the implications of his choosing “the least    radical means” of radical repair

The title of the book—and the final chapter—might lead the reader to believe that Stearns laments our adherence to the particular structure of governance chosen in 1787 and left basically unmodified since then.  That is, the Framers chose, and we have adhered to, a system predicated on a sometimes byzantine notion of “separation of powers” that, operationally, means an executive branch headed by a single president selected in a process entirely different from that by which members of the legislature are chosen.  This distinct method of selection, coupled, for example, with fixed terms of office and, in most systems, the ability to veto legislation passed by the legislature, is what distinguishes presidential systems from their parliamentary counterparts.  In the latter, the head of government, prime ministers or premiers are chosen by their colleagues within the legislature (or parliament).  Importantly, the person chosen serves only so long as she can maintain the “confidence” of the parliamentary whole.  Even if there is a fixed term for the members of Parliament, as in the United Kingdom, there is no fixed term for the Prime Minister.  Thus the UK has had, in the past decade, six prime ministers selected by the members of four different parliamentary bodies.  (Of course, the formal selection is by the Queen or King, but that is a charming formality, at least in Great Britain, if not in some other systems where a monarch or, more likely, an otherwise figurehead president elected by the legislature itself might play some kind of role.).

But a close reading of the book reveals that Stearns is all-too-unwilling to junk presidentialism in favor of unalloyed parliamentarianism.  To paraphrase Justice Scalia’s self-description about his relationship with “originalism,” Stearns is in fact a “faint-hearted parliamentarian.”  Part of his reason is that it would simply be too radical to suggest to most Americans that we/they junk presidentialism in favor of parliamentarianism. Stearns’ own radicalism is tempered by an understandable desire to be regarded as “reasonable,” and that requires, in a word that recurs over and over in the book, a willingness to “compromise” and to refrain from “extremism.”  To express a desire that the United States junk an almost 240-years long “history and tradition,” as the present Supreme Court might put it, of being governed by a president who is also, incidentally, the “head of state” and, therefore, recipient of the emotional feelings directed at a national pater familias (or, in the future mater familias) would, to most Americans, appear simply bizarre and, in a profound sense, “un-American.” 

The British, for example, have a commendable willingness to ruthlessly thrust aside prime ministers no longer viewed as support-worthy, with Margaret Thatcher, perhaps the most important peacetime prime minister in British history, serving as the most noteworthy example.  Yet they also retain what to most Americans is an unaccountable devotion to their Queen or King, as is true also, and even more inexplicably, in Australia, Canada, and New Zealand.  Perhaps we would be better off with similar such devotion to the Windsors if that meant that we would be more willing (and able) to rid ourselves of what Ross Perot memorably (and accurately) labeled our “employees” in the White House even as they clearly disserve us.

But Stearns also appears to believe that presidentialism, even as tempered particularly by his second and third suggested amendments, serves a useful purpose.  Part of this has to do with his concern to strengthen the party system even as he convincingly argues that the United States is disserved by having only two parties competing for political party.  He wants to strengthen the legislature, in part by doubling its membership and choosing at least some of its members in a system that would guarantee more proportional representation and, therefore, generate more political parties in Congress.  And he would give the House of Representatives, as envisioned by many of the Framers, the decisive role in choosing presidents.  They would be, he argues, the recognized leaders of the particular “coalition” (another major term in Stearns’ vocabulary) that placed them into office. 

Yet Stearns spends no time at all in addressing the bloated powers of the modern presidency, especially since World War II and, especially, as we see almost literally every day with Donald J. Trump, in the realms of foreign and military policy.  Nor does he adequately address the very high possibility that even under his reformed system, mid-term elections (which he would continue, even if only half of the Congress would be up instead of, at present, the entire House of Representatives) that the “coalition” would be fractured by electoral defeats and we would return to the modern “norm” of a “divided” government where a president would be facing a hostile congressional majority. 

So let me end this part of my comments by saying simply that I am more of a “parliamentarian” than Stearns himself turns out to be.  Political scientists are now used to classifying some systems as “semi-presidential” or even “semi-parliamentarian.”  Stearns would like to adopt some features that we associate with parliamentary systems, including an elaborate procedure by which Congress could displace a sitting president through a vote of “no confidence.” But, at the end of the day, he is, by his own admission, far less radical than the main title of his book might suggest.  And I personally regret this.

I should add one other demurrer, which applies as much to some of my own work as to Stearns’.  That is, though he insists that the structural reforms he advocates will go far to “repair our broken democracy,” he spends many pages on other aspects of our socio-political system, including the organization of political parties and, even more relevantly, the demise of what used to be called “mainstream media” in favor of the contemporary cornucopia (or nightmare) of “social media.”  I have for many years been debating my friends Jack Balkin and Mark Graber about the relative importance of formal structures as against political culture.  I continue to believe that structures are of some importance.  But I have also been persuaded by Jack and Mark (and others) that they may be of only marginal importance.  I note with very mixed feelings the introduction by Andras Jakab, the guest editor of the new issue of Constitutional Studies devoted to the question of whether particular constitutional designs predict democratic stability.  Jakab’s essay,  "Constitutional Design, Constitutional Decline, and Lawyerly Hubris," includes the following: 

          In this special issue, we analyze the question of what legal rules or institutions can do against constitutional decline. As an overarching term, we suggest “constitutional design,” which includes rules not only in constitutional rank but also below that, in ordinary statutes or even in decrees or in case law. As it turns out, most of the studies in this volume conclude that legal rules on their own of whatever form or rank are unable either to cause or to stop constitutional decline. The triggers of the decline lie chiefly outside of the legal system, in social, economic, political, and communication technology factors...

Perhaps this is a version of the Coase theorem, in which clever political operatives, taking full advantage of the role of money in contemporary politics and the ability to (mis)use social media for all sorts of nefarious purposes, can “workaround” the presumptive restraints posed by formal institutions.  It was, after all, Madison who warned about reliance on “parchment barriers,” which is ultimately all that constitutions are in the absence of a political culture committed to what we like to think are the fundamental values undergirding liberal constitutionalism. In any event, I think that Stearns is guilty of a failing often attributed to the arguments that I have made over the years for constitutional reform, which is to make over-enthusiastic claims about the foreseeable consequences about the reforms I support.  I have in fact come to believe, as suggested above, that formal structures, however important, may in fact play only a relatively modest role, at best, that they are rarely, if ever, silver-bullet cures for what ails us.  Stearns knows this, and one can certainly find cautionary sentences.  But the overall tone, as is common with any intellectual entrepreneurs, is one of exuberance, and there are, alas, good grounds for skepticism.   

III. What is to be done?

One doesn’t have to be a Leninist to believe that his remains a central question in all political argument.  Stearns has written what might be called a “semi-scholarly” or, perhaps, a “hybrid,” book.  That is, although it is published by a distinguished academic press and includes much of interest to fellow scholars, it is written in a style, and with a passion, that indicates a strong—and admirable—desire to reach a much wider audience.  Moreover, that audience, consisting ultimately of his fellow Americans worried about their futures and the “broken democracy” they see and experience, should ideally be motivated to support his three proposed amendments, at least if they agree with him that they provide a likely path to a better future, itself a proposition worth far more extended discussion than there is space available here. 

Again, I find it easy to relate to this aspiration.  I am exceedingly frustrated by the unwillingness of any major American politician to take up the cudgels for serious constitutional reform.  Part of the reason is the excessive “veneration” attached to a dangerously dysfunctional Constitutional.  But another reason, which Stearns highlights, is that many such proposed reforms would require that current inhabitants of political office accept a radical uncertainty about their own political futures.  I take every opportunity I can to quote what I call “Roche’s dictum,” named after the late political scientist John P. Roche:  “Power corrupts, and the prospect of losing power corrupts absolutely.”  This dictum ties together Joseph R. Biden and Donald J. Trump, even if most of us can readily agree that Trump’s is the far more egregious case.  But it also applies to the congressional backbencher who may disagree with Stearns about the likely consequences of doubling the size of the House and supplementing the members chosen in single-member districts with a second cohort chosen quite differently that would be designed to destroy what some have called the “two-party duopoly” that plagues our political system.

Stearns optimistically believes that “we the people,” if only we/they read his book, will be persuaded and will put pressure on elected leaders to adopt his three amendments (or, for purposes of argument, other amendments that might appear necessary to “repair our broken democracy”) through the standard-form method of congressional proposal, by two-thirds of each House of Congress, followed by ratification by three-quarters of the states.  I see no reason whatsoever to find this plausible as an actual mode of needed constitutional change.  Thus I heartily continue to support invoking that part of Article V that authorizes a new constitutional convention, which would have, I believe, plenary power to propose any and all changes--what the Declaration of Independence called the right to “alter and abolish” any and all elements of the political status quo if that would be conducive to achieving our greater “public happiness.  I am well aware that most people—including my friends, family, and professional colleagues—disagree with me and are, in fact, terrified of the possibility of the kind of “reflection and choice” that might be the result of a new convention.  Better the devil we know than the devil we might get appears to be the operative proposition. 

I suspect that Stearns would agree with the critics of a convention.  But, at the very least, he might have addressed the possibility of generating a genuine mass movement that, by definition, has less faith in the wisdom of existing (and entrenched) political elites than Stearns himself ultimately displays and would, consequently, empower, as have the American states on over 235 occasions, a convention that could offer the kind of systemic scrutiny, from top to bottom, that Stearns himself refrains ultimately from providing.  If I believed that his book would in fact have the impact he desires, then I would not only congratulate him unequivocally, but also endorse the maxim that he adverts to on several occasions:  “the best is the enemy of the good.”  So if we could in fact get some “good” changes, even if arguably “better” ones are thinkable, I would cheerfully acquiesce, not least because getting even one passable good amendment would exemplify the very possibility of breaking the logjam that makes constitutional change almost literally unthinkable—or, if thinkable, then a bogeyman to be feared—for too many Americans. 

But, alas, I’m not at all persuaded that Stearns will inspire the kind of movement he wishes.  Limited audacity makes sense if it is politically efficacious.  But there are times when one should be less restrained. But this critique may only illustrate my own tendency toward Alan Greenspan once memorably labeled "irrational exuberance" with regard to the merits of a brand new convention with plenary power to suggest, even if not to adopt, any and all potential changes to a defective Constitution.