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.
The book takes us on a tour of many of the world’s democracies. The tour reminds us that our system is not emulated across the world’s democracies and may not strongly support our own professed democratic values. Consequently, the book suggests how we could remake American democracy if we are willing to look beyond our own noses. Furthermore, the book provides suggestions that help us free ourselves to think about what our modern American democracy could look like if we were willing to adopt governance mechanisms that may seem radical to us but are not radical in other democracies that already operate using the principles embedded in Professor Stearns’s amendments. The principles and mechanisms are not radical; they are merely foreign to us.
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.