A Constitution for Non-Angels

In the new issue of the Atlantic, Yoni Appelbaum grapples with one particular reason why our political system isn’t working: the Constitution. Or more precisely, our fealty to it. From early in his essay:

The growing dysfunction of the government seems only to have increased reverence for the document; leading figures on both sides of the aisle routinely call for a return to constitutional principles.

What if this gridlock is not the result of abandoning the Constitution, but the product of flaws inherent in its design?

The flaw Appelbaum especially seizes on – and here, he’s following the widely-cited work of political scientist Juan Linz – is that our Constitution established a presidential system with separated powers, which tend to be less stable than parliamentary ones. In the former, “contending parties must eventually strike a deal” to get anything done, which means they are unusually vulnerable to human failure and intransigence, to say nothing of today’s crippling polarization. Ours, Linz points out, is the only presidential system with a substantial history of constitutional continuity.

What gives Appelbaum’s argument a bit more verve than the usual recitation of these ideas is that he links them to Eric Nelson’s recent book, The Royalist Revolution. Nelson scuttles the idea that the American Revolution was about throwing off a tyrannical king; instead, some of the Framers actually wanted George III to intervene on behalf of the colonies against parliament. (It was parliament, after all, who was taxing them.) Those same people helped write the Constitution, and gave us a strong executive office. Or as Appelbaum describes it, our Constitution gave us “a very traditional mixed monarchy,” not a democracy or even a republic. The president is essentially an “uncrowned” king.

It was that very type of power arrangement, however, that it’s claimed led to the English civil wars. For Appelbaum, Nelson’s book gives historical and theoretical reinforcement to Linz’s comparative critique of presidential systems of government: “[W]e should not dismiss the fact that the U.S. Constitution was modeled on a system that collapsed into civil war, and that it is inherently fragile.” More recent history supposedly hasn’t been kind to presidential systems, either. The record of presidential systems in Latin America proves especially discouraging.

What’s striking about Appelbaum’s case is how little it seems to be concerned with the Framers’ intentions, and how he proceeds without ascertaining why certain institutional arrangements were supported. I don’t say this out of a stringent conservatism devoted to the status quo, or because of my fetishistic allegiance to the “Founder Fathers.” Perhaps the Constitution should be scrapped; perhaps constructing a presidential system was a mistake. But that judgment only should be made after considering, and then finding unpersuasive, the reasons given for our institutional arrangements.

First, it won’t do to act as if the Framers simply adopted a traditional mixed monarchy, or dusted off an English model that had failed. The title of Harvey Mansfield’s unsurpassed study of modern executive power, Taming the Prince, remains instructive. If modern executive power has its origins in less democratic times, it still had to be “tamed” to fit (however ambiguously) with republican government.

This especially can be seen when we grasp that presidential systems are basically synonymous with the separation of powers, the latter also being an object of Appelbaum’s criticism. And when Madison first articulates his understanding of the separation of powers in Federalist 47, he points back to the English model that is so integral to Appelbaum’s case against the Constitution – but Madison also makes clear that that model hasn’t been lifted wholesale, and that the reception and understanding of that model has been at least partly mediated through Montesquieu. My teacher in these matters, the late George Carey, put the matter this way in his essay “The Separation of Powers and the Madisonian Model”:

What is crucial to note...is that the Framers (and Madison as well) had consciously divorced the concept of separation of powers from that of the “mixed regime” with which it had been historically associated. That is, the Framers retained essential elements of Montesquieu’s teachings regarding the principle of separation of branches, but rejected the ideas that the branches should represent the dominant social “classes” such as the democratic, aristocratic, and monarchical. (Emphasis mine.)

In other words, we shouldn’t let invocations of monarchy – necessarily a kind of dirty word in our political lexicon – distort our judgments about these matters. The Framers self-consciously departed from the English model, even if it informed their understanding of executive power. Madison describes the separation of powers as an “invaluable precept in the science of politics,” which he credits Montesquieu with grasping and developing, if not inventing; this makes it more of a theoretical insight applied in new circumstances than a matter of historical inertia. Montesquieu clearly was enamored of the English constitution, but he went beyond description to explore “the fundamental principles of a free constitution.” Federalist 47 also runs down the ways the colonies/states had experimented with the separation of powers (all but two of them had, at various times, tried such arrangements), suggesting the idea had wide purchase even before the Framers met in Philadelphia. And surely it should be noted that Madison actually wrote Federalist 47 to defend the proposed constitution against charges it didn’t separate powers enough.

Second, and this must be emphasized, the separation of powers was not aimed at thwarting majority rule. Here, again in Federalist 47, is how Madison states the reasoning behind the separation of powers:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

This is an argument about the nature of tyranny, one that exists apart from any fretting over the dangers of majority rule or democratic mobs. More precisely, and this term I also take from Carey, the problem being countered by separation of powers is “governmental tyranny.” Or as Madison famously writes in Federalist 51, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Separation of powers falls under the latter concern. The point Madison makes is that, by definition, power concentrated in one set of hands is arbitrary power and almost impossible to not (eventually) abuse.

Appelbaum criticizes the separation of powers for leading to instability more than for being anti-democratic, though the two critiques seem impossible to disentangle. (It is the anti-democratic character of presidential systems that produces the gridlock that results in constitutional showdowns and power grabs; such crises compel presidents to “act unilaterally,” thereby only deepening the crisis.) Still, that actually doesn’t address Madison’s concerns. Is he right or wrong about tyranny? We don’t know Appelbaum’s answer, because he never addresses the question. That is, the very reason Madison gives for the separation of powers doesn’t make its way into Appelbaum’s essay at all.

It’s also true, along these lines, that Appelbaum never mentions one particular aspect of this matter, which is the design of our legislature. Though Appelbaum (appropriately) underscores the Framers' concern for legislative usurpations of power, he leaves out that they responded to such worries by doing more than just giving the executive and judicial branches the institutional weapons to thwart Congress. The Framers also weakened the legislature by making it bicameral. Does that have anything to do with legislative gridlock? Again, we never find out.

Third, you don’t get much of a sense from Appelbaum of the way place and circumstances matter for any practically useful “science” of politics – or how they figured into the creation of our constitutional order. And to take it further: focusing solely on the “presidential” aspect of our system distorts the varied and conflicting problems the Framers were trying to mitigate, of which our executive is only one part.

For example, of all the problems confronted by the Framers, one the most vexing was the relationship between republicanism and the “extended sphere” (which only would grew more extended) of the United States. What does self-government look like in a sprawling, diverse country? Or rather, should the United States be governed the same way as a smaller, more homogeneous country with an entirely different cultural and historical backdrop? Such questions, it is true, do not directly impinge on the separation of powers, nor do they dictate the contours of executive power. But it’s also true that any reform of our political system will need to consider them, and that they provide the necessary context, again, for understanding the reasons why our Constitution took the shape it did.

Of course, all this is to say nothing of our difficult issues somewhat peculiar to the American system: our style of federalism, for example, or the fact that we have a written constitution.

Maybe a better way of putting it is this: given the varied problems confronted by the Framers, we should be exceedingly reticent to judge our system by one standard or value. Especially when that standard or value – for example, how “democratic” the system might be deemed – was not the chief aim of the Framers. 

Finally, none of the above should be taken as a dismissal of Appelbaum’s concerns over both government gridlock and executive branch-overreach. I share those concerns. And he’s written a thoughtful examination of them.

But let’s say Appelbaum were to write a follow-up piece suggesting reforms to restrain our executive. That task still requires returning to the Framers and discerning, as much as possible, the reasoning behind their decisions. As an example, consider Alexander Hamilton's assertion in Federalist 70:

Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks: It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high handed combinations, which sometimes interrupt the ordinary course of justice, to the security of liberty against the enterprises and assaults of ambition, of faction and of anarchy.

That’s a proposition that can be argued about and debated. Doing that is the beginning, not the end, of reflecting on our Constitution’s effectiveness. But it is an emaciated form of political reasoning that ignores such questions.

So, with Appelbaum, I welcome hard questions about our Constitution, even if I despair of how even considering changes to it might play out. And I am grateful for the way he has brought political science and history to bear on the matter. My argument is less that he's wrong, than that his approach is seriously incomplete as long as he ignores the Framers' own reasoning about the Constitution. And that reasoning involved both a certain prudence and moral seriousness about our flawed selves that Appelbaum only glancingly considers. All the comparative data imagineable, and all dusty history books you can find, do not allow us to sidestep Madison's perenially valid question: "But what is government itself, but the greatest of all reflections on human nature?"

Matthew Sitman is an associate editor of Commonweal. You can follow him on Twitter.

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