The Once and Future King. F. H. Buckley

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СКАЧАТЬ looks for evidence that one constitutional regime, more than the other, is better adapted to the demands placed upon it. That is how constitutions are evaluated. One is apt to think one lives under the best of all possible governments, but unless one is willing to put it to the test, this is little more than the prejudice of Thomas Paine’s hypothetical Englishman.

       AMERICA AND BRITAIN CHANGE PLACES

      Everyone knows how America came to adopt the separation of powers in government. The delegates to the Philadelphia Convention who drafted the Constitution were sophisticated legal theorists. They had studied “the celebrated Montesquieu” and wisely applied the French Enlightenment philosopher’s defense of the separation of powers. “When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty,” said Montesquieu,⁵ and the American Framers would follow him and protect liberty through a Constitution in which a separately elected president, Senate, and House of Representatives would each have to consent before a bill was enacted.

      I tell a different story in chapter 2. The modern presidential system, with its separation of powers, was an unexpected consequence of the democratization of American politics, and not a prominent feature of the Framers’ Constitution. It was a near run thing, decided only on day 105 of a 116-day convention. The delegates debated the presidential appointment process on twenty-one different days, and took more than thirty votes on the subject, with sixteen roll calls alone on how to select the president. In six of these (one unanimously), they voted for a president appointed by Congress, a system that would have resembled a parliamentary regime. Once they voted 8 to 2 for a president appointed by state legislatures. On one thing they were wholly clear: they did not want a president elected by the people. That question was put to them four times, and lost each time.

      The Framers wanted a government with a much weaker separation of powers. James Madison came to Philadelphia with a proposal that came to be called the Virginia Plan, in which an elected House of Representatives would appoint senators, and the House and Senate together would appoint the president. Such a system would have more closely resembled the British Westminster system of parliamentary government, and the gridlock that characterizes Washington today would largely be absent. The party that won the White House would typically win the legislative branch, giving us the winner-take-all government of parliamentary systems.

      The delegates rejected the Virginia Plan, but not to vindicate the principle of the separation of powers. What instead was at issue was the division of power between the states and the federal government, with supporters of states’ rights from the smaller states and nationalists from the larger ones on opposite sides. Delegates favoring states’ rights took the first trick, on the membership of the Senate. The states would appoint senators and each state, irrespective of size, would have two. States’-rights delegates feared the centralization of power in the federal government, and believed that a senate so constituted would prevent this from happening. They might have had a point.

      As for the presidency, the nationalists wanted a president chosen by the people, as he would be the only person elected by voters across the country and would thus have greater legitimacy to resist encroachments by the states. Once again, however, states’-rights supporters voted this down. What they chose instead was an elaborate system in which state legislatures would determine how presidential electors would be chosen, but in which the electors would not choose the president unless they gave him a majority of their votes. This, the Framers thought, would seldom happen, since they did not expect that, after George Washington, candidates with national appeal would emerge. In the case where no candidate received a majority of electoral votes, the election would be thrown to the House of Representatives, voting by state. What the Framers expected, then, was that the House would almost always choose the president, just as Madison had wanted in the Virginia Plan. Congressmen could not serve as president or sit in the cabinet, but responsibilities would be mingled and Congress would dominate the government. What the Framers envisaged was a separation of persons more than of powers.

      In time all of this changed, as a consequence of the growth of political parties and political pressure to let voters elect politicians directly. Presidents came to be chosen by popular ballot, as the nationalists had wanted, rather than by electors selected by states. National candidates emerged and received a majority of electoral votes, so that after 1824 the choice of president never fell to the House. After the Seventeenth Amendment was adopted in 1913, senators were elected by popular vote; and even before this, people had voted for their state legislators with an eye on how they would pick senators. The American system of separation of powers was more an unintended by-product of the growth of democracy than the deliberate choice of the Framers.

      Where one did find contemporary support for separationism was in Britain, as I note in chapter 3. The eighteenth-century Westminster system required the assent of King, House of Lords, and House of Commons to enact a bill. Over the ensuing half-century, the monarch and House of Lords lost power to the House of Commons, and by the passage of the 1832 Reform Bill the House of Commons had emerged as the dominant branch of government. A determined House of Commons could now insist on getting its way, and might require the King to appoint new peers to the House of Lords to overcome any objections from that body. Looking backward in 1867, it seemed clear to Walter Bagehot, writing in The English Constitution, that the “efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers.”⁶ Time’s arrow moved always in the direction of democracy, but while it dispatched separationism from Britain, it delivered it to America.

      Naturalized citizens sometimes assert their superiority to native citizens, who did not choose their nationality. In the same way, the Canadian adoption of a Westminster system, which I discuss in chapter 4, might be thought more deliberate and voluntary than Great Britain’s, for the Canadians had choices. Britons could not become Americans, but that was always an option for Canadians. They could have adopted an American separation of powers, or they could simply have moved next door when the wage differential exceeded their attachment to the monarchical principle. That possibility always weighed on one’s mind, as Canadian humorist Stephen Leacock noted. He wrote of an elderly Ontario politician who announced that he would soon go to that place to which all men must go, and none returns. The politician expected some sign of emotion from his audience, but there was none—they thought he was planning to move to the States.⁷

      The attraction of America was so great that it took an act of will for Canadians to resist their dangerous neighbor. In negotiating the 1871 Treaty of Washington, America sought Canada as compensation for the damage to American shipping inflicted by the Confederate raider Alabama, and the British (who had let the ship be built in England) would have been happy to give the country away. Only one delegate to the conference, the Canadian prime minister, stood in the way and insisted on his country’s independence.

      Some Canadian radicals wanted to adopt an American-style constitution, with a president and a separation of powers. Most Canadians disagreed, however. They valued the British connection and the British traditions of liberty with which they were familiar. They also feared that, were they to adopt the American presidential system, this would lead the country down the slippery slope to outright annexation by the United States. Why have a separate country, if the political principles are the same?

      More than anything, Canadians were familiar with the American system of government, and didn’t like what they saw. The United States had split apart in a Civil War, and Canadians thought that delegates at the Philadelphia Convention had created a nation that had become far too decentralized and unstable. They also observed the costs of the American system of separation of powers in the inefficiency of its government, and wanted none of it. In their debates, the Fathers of Canadian Confederation anticipated Bagehot, СКАЧАТЬ