Rewiring Our Civics Brain

Guest Blogger

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

Henry L. Chambers, Jr.

Professor Stearns’s book is fantastic. Its stated goal is a radical transformation of American democracy through the ratification of three constitutional amendments. The first amendment would double the size of the House of Representatives. Half of the representatives would be elected by geographic district as they are today. The other half would be elected through party preference. The House would be allocated based on proportional representation. The second amendment would put the selection of the President and Vice President directly into the House’s hands. The People would no longer have any direct say in who is elected president. The third amendment would allow the House to remove the president based on a 60% vote of no confidence, with removal allowed based on maladministration short of traditional impeachable offenses. To be clear, I have no reason to believe Max’s proposed amendments will be ratified soon, if ever, or that they would necessarily resolve the key problems with our democracy. However, they are a sensible endpoint to a book that takes a serious look at restructuring our democracy to save it. 

However, as nonradical as the amendments in the book may be to a citizen of the world, they force us to rewire our civics brains. Professor Stearns asks us to rethink the role our representatives serve in our democracy. If We the People rewire our civics brains in the manner he suggests, his proposed amendments could be readily adopted. Without a change in thinking, the amendments will seem alien. There is a chicken-and-egg problem.

The necessary rewiring requires abandoning some of what Americans hold dear. The book first demands that we dispense with claims of American exceptionalism regarding our democracy and recognize that other democracies may envy our longevity without envying our electoral and governance procedures. In doing so, we can recognize that the system bequeathed to us by the Framers in the Constitution may no longer suit the United States of America today. That is not a knock on the Framers. It is a recognition that a complex country nearly 250 years old that covers vastly more territory than it did at its inception has changed. Indeed, in this 250th anniversary year of the Declaration of Independence, we could stand to reconsider precisely how our country has changed since the “unanimous declaration of the thirteen United States of America” in 1776. Dispensing with Framer worship is easy for some but is not always comfortable for others.

What is more difficult is dispensing with or rethinking other parts of American democracy, such as relinquishing the separation of powers ostensibly embedded in the Constitution. The separation of powers is arguably core to what makes American democracy what it is, or at least what we think American democracy is, yet Stearns suggests the separation no longer works as envisioned, if it ever did. The proposed second and third amendments dispense with the fiction by collapsing the legislative and executive functions in the name of accountability.

The second and third proposed amendments hold the president accountable to the House of Representatives by having the House elect the president and by allowing the House to remove the president through a vote of no confidence. The collapsing of executive and legislative powers does not occur explicitly, as the vesting powers under Articles I and II remain intact. However, the legislative power to install and remove a president will likely cabin the president’s use of power and condition the president’s relationship with the House. That may be a welcome change. It is possible that the capacious view of executive authority held by our current president and some of his predecessors, as well as the continued march of the unitary executive theory, may have already severely affected the separation of powers. The executive, and not only the current president, may have impinged on legislative powers or arrogated powers ostensibly shared by the executive and legislative branches to an extent that the legislative and executive powers have collapsed somewhat into a barely accountable executive. If the collapsing is inevitable, guaranteeing that the executive is accountable to the legislature may be more sensible than allowing so much power to reside in a barely accountable president.

The second amendment appears to eliminate presidential accountability to the people. Ironically, it may be a quasi-restoration of the original vision of the Electoral College, which originally served to empower a group of people – separate from the electorate – who used discretion to choose the chief executive. Professsor Stearns’s second amendment dispenses with the possibility that the citizenry could be directly involved in the selection of the president. That is not radical when placed next to the words of the Constitution but is radical when placed next to the processes the states now use to allocate their electoral votes. The second amendment dispenses with a presidential election. The people would be indirectly involved in the president’s selection through the House election prior to the presidential selection. Over time, the people could believe they could affect a presidential selection through the House’s election. However, several election cycles could be necessary for the people to feel as though they were influencing the president through the party system in the House as opposed to influencing the president directly through a presidential election.

The elimination of any theoretical presidential accountability to the people may matter less than the inability of a president to connect with the citizenry in the absence of an election. Without a presidential election, there may be little opportunity for the citizenry to bond with the person who becomes president. That relationship may be overrated and indirect at best, but it exists. The willingness of the public to forgo a connection with the titular leader of the United States may require a significant rewiring of the American civics brain. 

Increased presidential accountability is at the heart of the third proposed amendment. The possibility of a vote of no confidence increases presidential accountability. It also continues the transformation of the separation of powers into legislative control of the executive. That may be a preferable way to structure the U.S. government, but it is not how the government is structured by the Constitution. Dispensing with the separation of powers and the notion that the President should act somewhat independent of Congress is not simple. The Constitution suggests legislative power and executive power are different, though they overlap. Indeed, they may overlap so substantially that recognizing how they mesh may be preferable to treating them as distinct. Nonetheless, collapsing the executive power into the legislative power by allowing the House to police the president and depose a president for maladministration is a substantial change in our constitutional structure. 

Professor Stearns’s first proposed amendment may be his most radical. Increasing the size of the House of Representatives is not radical. Electing half of it by party preference and guaranteeing the House is allocated to parties based on proportional representation is. The amendment is less about dispensing with a principle than embracing a new one. The proposal strongly encourages voters to align with a party. A firm embrace of voting by party is somewhat surprising given that parties arguably are a big part of the problem with our current democracy. However, Stearns suggests our democracy’s problem is not with parties but with the two-party system. The amendment is meant to encourage a flourishing of parties that would allow people to align themselves with a party that embodies the principles that they care about without having to align with a party that cannot or does not represent their values in a two-party system. Though he may be correct, several election cycles may be required before the American people are ready to embrace the concept of voting for a party, even as they continue to vote for a person.  

This brief essay merely scratches the surface of this book. A full discussion would require multiple symposia. Nonetheless, a core principle undergirds this book. America is a special place, but our democracy is not particularly special. The amendments Professor Stearns proposes are not radical when viewed through the book's title, Parliamentary America. Having diagnosed American democracy’s problems as stemming from or embedded in a two-party system, Stearns suggests a parliamentary system embracing multiple parties with different worldviews that will be represented in a federal legislature. That notion, typical throughout the world’s democracies, is uncommon to us. The result is a set of amendments that are radical for us but would be mild for many other democracies. Stearns prescribes important correctives for our ailing republic. His solutions may not be the only solutions, but the book in which they are packaged provides a deep and broad path toward opening our minds to whatever solutions may work. Opening our American civics mind to rewiring may be the first radical step on that path.   

Henry L. Chambers, Jr., is Professor of Law and Oliver Hill Faculty Research Scholar, University of Richmond. You can reach him by e-mail at hchamber@richmond.edu.