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.
It is a great compliment to Max Stearns that he is himself engaging in deep “reflection” upon the adequacy of the existing Constitution and that he is offering a deeply heartfelt plea to his fellow citizens that we collectively choose what he calls, in his subtitle, “the least radical means of radically preparing our broken democracy.” He makes a strong—and to me convincing—argument that our democracy is indeed broken. Indeed, whichever position one occupies on the general ideological spectrum, that assertion is, today, likely to be regarded as an almost self-evident truth! Jack Balkin has written tellingly about pervasive “constitutional rot.” Washington insiders like Norman Ornstein and Thomas Mann have now for more than a decade pointed out both that Congress is a “broken branch” and that overall things are getting “worse.” Otherwise sedate scholars like Steven Levitsky and Daniel Ziblatt are writing on How Democracies Die, and their most recent book, Tyranny of the Minority: Why American Democracy Reached the Breaking Point, focuses more explicitly upon the United States. Marjorie Taylor Green, spending her last days as an elected representative from Georgia before she resigns, has denounced Congress for its sclerosis in terms that many of her political adversaries can readily agree with.
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.