(Don't) Hail to the Chief

Of all the constitutions enacted by the thirteen colonies upon their emergence from British rule, the most democratic was that of Pennsylvania. Its features included a unicameral legislature elected annually, a plural executive consisting of one member elected from each county and possessing no powers to veto or initiate laws, a Council of Censors elected every seventh year to investigate corruption and propose constitutional amendments, and an extensive bill of rights. It made no pretensions to establishing a separation of powers – the legislature was clearly dominant over the other branches, a natural reaction to the pre-1776 colonial authorities’ control of the executive and judiciary. Thomas Paine and Benjamin Franklin helped to create the constitution and vigorously defended it, while the elite classes across the fledgling United States were horrified, preferring the scheme described in John Adams’ Thoughts on Government, which provided for an upper house and a governor to check the will of the lower house.

The preference for a weak executive was due to the influence of Country Party political thought in the American colonies. After the mercantile classes took power in England with the Glorious Revolution in 1688, they set about using the public purse to fund the development of capitalism. They established the Bank of England, passed enclosure laws to dispossess poor farmers, and stepped up the colonisation of North America and India. To keep the money flowing, the Crown needed an ally who could command the support of the House of Commons, and thus control its traditional right to initiate supply bills; thus, the informal post of Prime Minister, usually synonymous with that of First Lord of the Treasury, came into existence. Country Party ideology developed in opposition to the domination of the legislature by the executive, which it viewed as a recipe for enriching the Crown and the City of London at the expense of the people. To Americans in 1776, the legislature was synonymous with democracy and economic equality, while a powerful executive meant tyranny and mercantilism.

In the years between 1776 and the Constitutional Convention, colonial legislatures passed laws which threatened the privileges of the elites. Primogeniture was outlawed, preventing the emergence in the United States of a hereditary aristocracy, paper money was issued to redress economic inequalities and assist poor farmers and labourers in paying their debts, and land was confiscated from Loyalists. The Articles of Confederation, which came into force in 1781, replicated Pennsylvania’s preference for legislative supremacy, and lacking a single executive, the Congress divided executive authority among a plethora of committees. The elite backlash against the radical-democratic political culture of post-revolutionary America culminated in Philadelphia in 1787, where a constitution providing for an unelected Senate, President, and federal judiciary was presented to the nation.

Across the Atlantic, the spirit of Pennsylvania in 1776 was keenly felt by the partisans of the French Revolution. A series of constitutional proposals littered the years between 1789 and 1793, providing for constitutional monarchies, upper houses, British-style cabinets, and other anti-democratic devices. The Montagnards rejected all these in favour of making the executive subordinate to the legislature. In practice, they used their control of the National Convention to sideline the ministerialist Executive Council in favour of a Committee of Public Safety. Although this body was dominated, with tragic consequences, by the personality of Robespierre, its purpose was to turn the executive branch into a mere committee of the legislature. In their constitutional theory, the Montagnards designed a model of legislative supremacy – the proposed constitution of 1793, in which the relationship between the legislative and executive branches was modelled on that of Pennsylvania. The preference of French radicals for legislative supremacy (known as the régime d’assmblée or régime conventionnel) was again exhibited in the Paris Commune (famously described by Marx as “a working, not a parliamentary body”) and the first Constituent Assembly of 1946.

The propertied men who drafted the Constitution sometimes let their guard down about the anti-populist intent of their document. In Federalist No. 10, James Madison assures readers that the “rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project” generated by legislative supremacy would be blocked under his design. At the convention, he proposed a ‘Council of Revision’ with the power to veto laws, consisting of the President and a number of Supreme Court justices, the effect of which would be to harness the power of the other two branches to combat the legislature. The undemocratic features of the constitution were mostly ironed out – the Senate, controlled by the Slave Power and then Wall Street throughout the nineteenth century, became elective, and the Supreme Court moved away from its historic role as the protector of Loyalist gentry (Martin v. Hunter’s Lessee), cosy academic elites (Dartmouth v. Woodward), and corporations (Lochner v. New York), to become a champion of individual liberty (Roe v. Wade, Miranda v. Arizona, etc.). The presidency, though it has come to be elected on a democratic basis (notwithstanding Electoral College malapportionment), has usurped the democratic legitimacy which should rightfully lie in the legislative branch.

In the early decades of the republic, Americans were in no doubt that the will of the people resided in Congress (particularly in its popularly-elected House of Representatives), and that the President’s role was to merely execute its laws, though he was granted some leeway in conducting foreign policy and using his veto pen to stop pork-barrelling or the passage of clearly unconstitutional laws. Beginning, arguably, with Andrew Jackson, the idea of the presidential mandate began to develop, and the direct election of presidential electors gave Presidents the democratic legitimacy to position themselves as tribunes of the masses, in opposition to the local interests represented in Congress. With the increase in the size and power of the federal government, and the increased media attention on presidential elections, the ‘chief magistrate’ gradually assumed the mantle of ‘Leader of the Free World’. The question posed by John Jay to George Washington during Shay’s Rebellion (‘shall we have a monarchy?’) has been answered in the affirmative.

The modern U.S. President can veto laws duly passed by Congress for whatever reason, declare parts of them inoperable with a signing statement, and impound funds which they require to be spent. He can initiate military action, restrained only by the War Powers Act, whose constitutionality is dubious. Then there’s the abuses of power – Watergate, Iran-Contra, Fast-and-Furious-gate. The counterpoint to the imperial presidency is the personal invective levelled at Presidents. The rise of ‘birtherism’ during the Obama Administration is not a new or unusual phenomenon: Martin van Buren was said by his opponents to engage in orgies in the White House, Lincoln was apparently ‘Abraham Africanus’ whose presidency would lead to miscegenation, and Chester A. Arthur was singled out for his supposed Canadian birth. The personal nature of the office invites critics of its occupant to forgo policy-based criticisms in favour of personal invective.

The existence of a presidency elected separately from the legislature has many adverse consequences for American politics. By strengthening the effects of Duverger’s Law, it inhibits the growth of third parties. The desire of Presidents to be seen to be above the partisan fray retards the growth of strong political parties and encourages the selection of cross-party running mates (which, in turn, leads to unexpected changes in party control of the White House when a John Tyler or an Andrew Johnson succeeds to the nation’s highest office). Most importantly, the presidency encourages Americans to think of themselves as dutiful servants of an elected monarch. MSNBC host Chris Matthews’ recent request that Obama “give us our orders” illustrates perfectly how individual agency is suppressed in favour of deference to the Commander-in-Chief. Americans have come to see the presidency as the focus of all political power – liberals greet every new Democratic administration with dreams of a re-run of FDR’s first hundred days, while conservatives want the Oval Office to be filled by a macho figure who’ll make ‘No Apology’ for torture, the Patriot Act, or American exceptionalism.

Amazingly, some Americans want to replace the imperial presidency with a parliamentary system, which would remove all traces of independence from Congresspeople who would be obliged to support their party’s government (or oppose that of the other party). The prominent advocates of parliamentarism (such as Carter Administration official Lloyd Cutler, blogger Matt Yglesias, or, most famously, Woodrow Wilson) want the legislative branch to surrender more aspects of policy-making to the executive. The increasing presidentialisation of the office of prime minister in parliamentary countries shows that such a change wouldn’t rein in the bonapartiste nature of the presidency, and the reverence for the Westminster system among American parliamentarists (as opposed to the world’s numerous parliamentary republics) suggests that their preferences are grounded in the anglophilia of America’s coastal elites.

The United States would benefit from a rediscovery of the constitutional principles of the post-revolutionary era: the primacy of the legislative branch, short terms of office (Benjamin Franklin: “where annual elections end, tyranny begins”), the undemocratic nature of malapportioned upper houses, and the danger to liberty posed by an executive with a greater popular mandate than individual legislators.