Dahl arguments and Constitution

How_Democratic_Is_the_American_Constitution_Second..._----_CHAPTER_3._The_Constitution_as_a_Model_An_American_Illusion.pdf

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chapter 3

The Constitution as a Model: An American Illusion

M ANY AMERICANS APPEAR TO BELIEVE THAT OUR

constitution has been a model for the rest of the democratic world.1 Yet among the coun-

tries most comparable to the United States and where democratic institutions have long existed without break- down, not one has adopted our American constitutional system. It would be fair to say that without a single ex- ception they have all rejected it. Why?

Before I explore that question, I need to clarify two matters. As you may have noticed, rather than speaking simply of “the constitution,” I’ve sometimes used the phrase “the constitutional system.” I do so because I want to include in a constitutional system an important set of institutions that may or may not be prescribed in the formal constitution itself: these are its electoral

Dahl, R. A. (2003). How democratic is the american constitution? : Second edition. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from sfsu on 2021-10-08 01:27:22.

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arrangements. As we’ll see, electoral systems can in- teract in crucial ways with the other political institu- tions and thereby determine the way they function.

Also, I’ve just referred to the countries where democracy is oldest and most firmly established. We could call them the older democracies, the mature democracies, the stable democratic countries, and so on, but I’ll settle on “the advanced democratic coun- tries.” Whatever we choose to call them, in order to compare the characteristics and performance of the American constitutional system with the characteris- tics and performance of the systems in other demo- cratic countries, we need a set of reasonably compa- rable democratic countries. In short, we don’t want to compare apples and oranges—or good apples and rot- ten apples.

I’ve noticed that we Americans often assure our- selves of the superiority of our American political sys- tem by comparing it with political systems in countries ruled by nondemocratic regimes or in countries that suffer from violent conflict, chronic corruption, fre- quent chaos, regime collapse or overthrow, and the like. On voicing or hearing criticism of political life in the United States, an American not infrequently adds, “Yes, but just compare it with X!,” a favorite X being the Soviet Union during the Cold War and, after its collapse, Russia. One could easily pick more than a hundred other countries with political systems that by almost any standard are unquestionably inferior to our own. But comparisons like this are absurdly irrelevant.

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To my mind, the most comparable countries are those in which the basic democratic political institu- tions have functioned without interruption for a fairly long time, let’s say at least half a century, that is, since 1950. Including the United States, there are twenty- two such countries in the world.2 (See Appendix B, Ta- bles 1 and 2.) Fortunately for our purposes, they are also comparable in their relevant social and economic conditions: not a rotten apple in the bunch. Not sur- prisingly, they are mostly European or English speak- ing, with a few outliers: Costa Rica, the only Latin American country; Israel, the only Middle Eastern country; and Japan, the only Asian country.

When we examine some of the basic elements in the constitutional structures of the advanced demo- cratic countries, we can see just how unusual the Amer- ican system is. Indeed, among the twenty-two older de- mocracies, our system is unique.3

Federal or Unitary

To begin with, among the other twenty-one countries we find only seven federal systems, in which territorial units—states, cantons, provinces, regions, Länder— are endowed by constitutional prescription and prac- tice with a substantial degree of autonomy and with significant powers to enact legislation. As in the United States, in these federal countries the basic territorial units, whether states, provinces, or cantons, are not

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simply legal creatures of the central government with boundaries and powers that the central government could, in principle, modify as it chooses. They are basic elements in the constitutional design and in the political life of the country.

As with the United States, so too in these other five countries federalism was not so much a free choice as a self-evident necessity imposed by history. In most, the federal units—states, provinces, cantons—existed before the national government was fully democra- tized. In the extreme case, Switzerland, the consti- tuent units were already in place before the Swiss Confederation itself was formed from three Alpine cantons in 1291, five centuries before America was born. Throughout the following seven centuries the Swiss cantons, now twenty in number,4 have retained a robust distinctiveness and autonomy. In the outlier, Belgium, federalism followed long after a unitary gov- ernment had been imposed on its diverse regional groups. As the brilliant period of Flemish painting, weaving, commerce, and prosperity in the sixteenth and seventeenth centuries reminds us, profound terri- torial, linguistic, religious, and cultural differences be- tween the predominantly Flemish and Walloon areas existed long before Belgium itself became an inde- pendent country in 1830. Despite the persistent cleav- ages between the Flemish and Walloons, however, federalism did not arrive until 1993 when the three regions—Wallonia, Flanders, and Brussels—were fi- nally given constitutional status. I should point out

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that the deep divisions between Walloons and Flemish continue to threaten the survival of Belgium as a single country.

The second and third features follow directly from the existence of federalism.

Strong Bicameralism

A natural, if not strictly necessary, consequence of fed- eralism is a second chamber that provides special rep- resentation for the federal units. To be sure, unitary systems may also have, and historically all have had, a second chamber. However, in a democratic country with a unitary system, the functions of a second cham- ber are far from obvious. The question that was posed during the American constitutional convention is bound to arise: Exactly whom or whose interests is a second chamber supposed to represent? And just as the Fram- ers could provide no rationally convincing answer, so too as democratic beliefs grow stronger in democratic countries with unitary governments, the standard an- swers become less persuasive—in fact, so unpersua- sive to the people of the three Scandinavian countries that they have all abolished their second chambers. Like the state of Nebraska, Norway, Sweden, and Denmark also seem to do quite nicely without them. Even in Britain, the gradual advance of democratic beliefs created an inexorable force opposed to the his- torical powers of the House of Lords. As early as 1911

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the Liberals wiped out the power of the Lords to veto “money bills” passed by the Commons. The continu- ing advance of democratic beliefs during the past cen- tury led in 1999 to the abolition of all but ninety-two hereditary seats, whose occupants would be elected by hereditary peers.5 The future of that ancient chamber remains in considerable doubt.

By the end of the twentieth century, then, a strongly bicameral legislature continued to exist in only four of the advanced democratic countries, all of them federal: in addition to the United States, these were Australia, Germany, and Switzerland. Their exis- tence poses a question: What functions can and should a second chamber perform in a democratic country? And in order to perform its proper functions, if any, how should a second chamber be composed? As the deliberations of the Parliamentary Commission on the future of the House of Lords indicate, these questions admit of no easy answer. It would not be surprising, then, if Britain ends up with no real second chamber at all, even if a ghostly shade of the upper house persists.

Unequal Representation

A third characteristic of federal systems is significant unequal representation in the second chamber. By un- equal representation I mean that the number of mem- bers of the second chamber coming from a federal unit such as a state or province is not proportional to

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its population, to the number of adult citizens, or to the number of eligible voters. The main reason, per- haps the only real reason, why second chambers exist in all federal systems is to preserve and protect un- equal representation. That is, they exist primarily to ensure that the representatives of small units cannot be readily outvoted by the representatives of large units. In a word, they are designed to construct a bar- rier to majority rule at the national level.

To make this clear, let me extend the range of the term unequal representation to include any system where, in contrast to the principle of “one person one vote,” the votes of different persons are given unequal weights. Whenever the suffrage is denied to some per- sons within a system, we might say that their votes are counted as zero, whereas the votes of the eligible citi- zens are counted as one. When women were denied the vote, a man’s vote effectively counted for one, a woman’s for nothing, zero. When property require- ments were required for the suffrage, property owners were represented in the legislature, those below the property threshold were not: like women their “votes” counted for zero. Some privileged members of Parlia- ment, like Edmund Burke, referred to “virtual repre- sentation,” where the aristocratic minority repre- sented the best interests of the entire country. But the bulk of the people who were excluded easily saw through that convenient fiction, and as soon as they were able to they rejected these pretensions and gained the right to vote for their own M.P.s. In nine-

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teenth-century Prussia, voters were divided into three classes according to the amount of their property taxes. Because each class of property owners was given an equal number of votes irrespective of the vast dif- ference in numbers of persons in each class, a wealthy Prussian citizen possessed a vote that was effectively worth almost twenty times that of a Prussian worker.6

To return now to the United States: as the Ameri- can democratic credo continued episodically to exert its effects on political life, the most blatant forms of unequal representation were in due time rejected. Yet, one monumental though largely unnoticed form of un- equal representation continues today and may well continue indefinitely. This results from the famous Connecticut Compromise that guarantees two sena- tors from each state.

Imagine a situation in which your vote for your representative is counted as one while the vote of a friend in a neighboring town is counted as seventeen. Suppose that for some reason you and your friend each change your job and your residence. As a result of your new job, you move to your friend’s town. For the same reason, your friend moves to your town. Presto! To your immense gratification you now dis- cover that simply by moving, you have acquired six- teen more votes. Your friend, however, has lost sixteen votes. Pretty ridiculous, is it not?

Yet that is about what would happen if you lived on the western shore of Lake Tahoe in California and moved less than fifty miles east to Carson City, Nevada,

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while a friend in Carson City moved to your commu- nity on Lake Tahoe. As we all know, both states are equally represented in the U.S. Senate. With a popula- tion in 2000 of nearly 34 million, California had two senators. But so did Nevada, with only 2 million resi- dents. Because the votes of U.S. senators are counted equally, in 2000 the vote of a Nevada resident for the U.S. Senate was, in effect, worth about seventeen times the vote of a California resident. A Californian who moved to Alaska might lose some points on climate, but she would stand to gain a vote worth about fifty- four times as much as her vote in California.7 Whether the trade-off would be worth the move is not for me to say. But surely the inequality in representation it reveals is a profound violation of the democratic idea of political equality among all citizens.

Some degree of unequal representation also exists in the other federal systems. Yet the degree of unequal representation in the U.S. Senate is by far the most extreme. In fact, among all federal systems, including those in more newly democratized countries—a total of twelve countries—on one measure the degree of unequal representation in the U.S. Senate is exceeded only by that in Brazil and Argentina.8

Or suppose we take the ratio of representatives in the upper chamber to the populations of the federal units. In the United States, for example, the two sena- tors from Connecticut represent a population of slightly above 3.4 million, while the two senators from its neigh- bor New York represent a population of 19 million:

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a ratio of about 5.6 to 1. In the extreme case, the ratio of over-representation of the least populated state, Wyoming, to the most populous state, California, is just under 70 to 1.9 By comparison, among the advanced democracies the ratio runs from 1.5 to 1 in Austria to 40 to 1 in Switzerland. In fact, the U.S. disproportion is exceeded only in Brazil, Argentina, and Russia.10

On what possible grounds can we justify this ex- traordinary inequality in the worth of the suffrage?

A brief digression: rights and interests. A common response is to say that people in states with smaller populations need to be protected from federal laws passed by congressional majorities that would violate their basic rights and interests. Because the people in states like Nevada or Alaska are a geographical minor- ity, you might argue, they need to be protected from the harmful actions of national majorities. But this re- sponse immediately raises a fundamental question. Is there a principle of general applicability that justifies an entitlement to extra representation for some indi- viduals or groups?

In searching for an answer, we need to begin with an eternal and elementary problem in any governmen- tal unit:11 whether the unit is a country, state, munici- pality, or whatever, virtually all of its decisions will in- volve some conflict of interests among the people of the relevant political unit. Inevitably, almost any gov- ernmental decision will favor the interests of some cit- izens and harm the interests of others. The solution to this problem, which is inherent in all governmental

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units, is ordinarily provided in a democratic system by the need to secure a fairly broad consent for its deci- sions by means, among other things, of some form of majority rule. Yet if decisions are arrived at by majority rule, then the possibility exists, as Madison and many others have observed, that the interests of any minor- ity will be damaged by a majority. Sometimes, fortu- nately, mutually beneficial compromises may be found. But if the interests of a majority clash irreconcilably with those of a minority, then the interests of that mi- nority are likely to be harmed.

Some interests, however, may be protected from the ordinary operation of majority rule. To a greater or lesser degree, all democratic constitutions do so.

Consider the protections that all Americans enjoy, not just in principle but substantially in practice as well. First, the Bill of Rights and subsequent amend- ments provide a constitutional guarantee that certain fundamental rights are protected whether a citizen lives in Nevada or California, Rhode Island or Massa- chusetts, Delaware or Pennsylvania. Second, an im- mense body of federal law and judicial interpretation based on constitutional provisions enormously extends the domain of protected rights—probably far beyond anything the Framers could have foreseen. Third, the constitutional division of powers in our federal system provides every state with an exclusive or overlapping domain of authority on which a state may draw in order to extend even further the protections for the particular interests of the citizens of that state.

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The basic question. Beyond these fundamental and protected rights and interests, do people in the smaller states possess additional rights or interests that are entitled to protection from policies supported by national majorities? If so, what are they? And on what general principle can their special protection be justi- fied? Surely they do not include a fundamental right to graze sheep or cattle in national forests or to extract minerals from public lands on terms that were set more than a century ago. Why should geographical lo- cation endow a citizen or group with special rights and interests, above and beyond those I just indicated, that should be given additional constitutional protection?

If these questions leave me baffled, I find myself in good company. “Can we forget for whom we are forming a government?” James Wilson asked at the Constitutional Convention. “Is it for men, or for the imaginary beings called States?” Madison was equally dubious about the need to protect the interests of people in the small states. “ Experience,” he said, “sug- gests no such danger. . . . Experience rather taught a contrary lesson. . . . The states were divided into dif- ferent interests not by their differences in size, but by other circumstances.”12

Two centuries of experience since Madison’s time have confirmed his judgment. Unequal representation in the Senate has unquestionably failed to protect the fundamental interests of the least privileged minorities. On the contrary, unequal representation has some- times served to protect the interests of the most privi-

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leged minorities. An obvious case is the protection of the rights of slaveholders rather than the rights of their slaves. Unequal representation in the Senate gave ab- solutely no protection to the interests of slaves. On the contrary, throughout the entire pre–Civil War period unequal representation helped to protect the interests of slave owners. Until the 1850s equal representation in the Senate, as Barry Weingast has pointed out, gave the “the South a veto over any policy affecting slavery.” Between 1800 and 1860 eight anti-slavery measures passed the House, and all were killed in the Senate.13

Nor did the Southern veto end with the Civil War. After the Civil War, Senators from elsewhere were compelled to accommodate to the Southern veto in order to secure the adoption of their own policies. In this way the Southern veto not only helped to bring about the end of Reconstruction; for another century it prevented the country from enacting federal laws to protect the most basic human rights of African Americans.

So much for the alleged virtues of unequal repre- sentation in the Senate.

Suppose for a moment we try to imagine that we actually wanted the constitution to provide special pro- tection to otherwise disadvantaged minorities by giv- ing them extra representation in the Senate. What mi- norities most need this extra protection? How would we achieve it? Would we now choose to treat certain states as minorities in special need of protection sim- ply because of their smaller populations? Why would we want to protect these regional minorities and not

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other, far weaker minorities? To rephrase James Wil- son’s question in 1787: Should a democratic govern- ment be designed to serve the interests of “the imagi- nary beings called States,” or should it be designed instead to serve the interests of all its citizens consid- ered as political equals?

As I have said, the United States stands out among twenty-two comparable democratic countries for the degree of unequal representation in its upper chamber. Of the half dozen that have federal systems and an upper house designed to represent the federal units, none come even close to the United States in the ex- tent of its unequal representation in its upper house.

We begin to see, then, that our constitutional sys- tem is unusual. As we continue our exploration we shall discover that it is not merely unusual. It is one of a kind.

Strong Judicial Review of National Legislation

Not surprisingly, other federal systems among the older democracies also authorize their highest national courts to strike down legislation or administrative actions by the federal units—states, provinces, and the like— that are contrary to the national constitution. The case for the power of federal courts to review state actions in order to maintain a federal system seems to me straightforward, and I accept it here. But the authority of a high court to declare unconstitutional legislation that has been properly enacted by the coordinate con-

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stitutional bodies—the parliament or in our system the Congress and the president—is far more controversial.

If a law has been properly passed by the law- making branches of a democratic government, why should judges have the power to declare it unconstitu- tional? If you could simply match the intentions and words of the law against the words of the constitution, perhaps a stronger case could be made for judicial re- view. But in all important and highly contested cases, that is simply impossible. Inevitably, in interpreting the constitution judges bring their own ideology, biases, and preferences to bear. American legal scholars have struggled for generations to provide a satisfactory ra- tionale for the extensive power of judicial review that has been wielded by our Supreme Court. But the contradiction remains between imbuing an unelected body—or in the American case, five out of nine jus- tices on the Supreme Court—with the power to make policy decisions that affect the lives and welfare of millions of Americans. How, if at all, can judicial re- view be justified in a democratic order? I’ll discuss that question in my last chapter.

Meanwhile, let me return to another aberrant as- pect of the American constitutional system.

Electoral Systems

Earlier I explained that I wanted to use the term con- stitutional system because some arrangements that are

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not necessarily specified in a country’s constitutional document interact so strongly with the other institu- tions that we can usefully regard them as a part of the country’s constitutional arrangements. In that spirit, we might want to reflect on the peculiarities of our elec- toral system, which, natural as it may seem to us, is of a species rare to the vanishing point among the advanced democratic countries. Closely allied with it is an equally rare bird, our much revered two-party system.

To be sure, our electoral system was not the doing of the Framers, at least directly, for it was shaped less by them than by British tradition. The Framers simply left the whole matter to the states and Congress,14

both of which supported the only system they knew, one that had pretty much prevailed in Britain, in the colonies, and in the newly independent states.

The subject of electoral systems is fearfully com- plex and for many people fearfully dull as well. I shall therefore employ a drastic oversimplification, but one sufficient for our purposes. Let me simply divide elec- toral systems into two broad types, each with a variant or two. In the one we know best, typically you can cast your vote for only one of the competing candidates, and the candidate with the most votes wins. In the usual case, then, a single candidate wins office by gain- ing at least one more vote than any of his or her oppo- nents. We Americans tend to call this one-vote margin a plurality; elsewhere, to distinguish it from an ab- solute majority it may be called a relative majority. To describe our system, American political scientists

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sometimes employ the cumbersome expression “single member district system with plurality elections.” I pre- fer the British usage: on the analogy of a horse race where the winner needs only a fraction of a nose- length to win, the British tend to call it the “first-past- the-post” system.

If voters were to cast their ballots in the same pro- portion in every district, the party with the most votes would win every seat. In practice, as a result of varia- tions from district to district in support for candidates, a second party generally manages to gain some seats, although its percentage of seats will ordinarily be smaller than its percentage of votes. But the represen- tation of third parties usually diminishes to the vanish- ing point. In short, first-past-the-post favors two-party systems.

The main alternative to first-past-the-post is pro- portional representation. As the name implies, propor- tional representation is designed to ensure that voters in a minority larger than some minimal size—say, 5 percent of all voters—will be represented more or less in proportion to their numbers. For example, a group consisting of 20 percent of all voters might win pretty close to 20 percent of the seats in the parliament. Consequently, countries with proportional represen- tation systems are also very likely to have multiparty systems in which three, four, or more parties are rep- resented in the legislature. In short, although the rela- tionship is somewhat imperfect, in general a country with first-past-the-post is likely to have a two-party

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system and a country with proportional representation is likely to have a multiparty system.

In the most common system of proportional repre- sentation, each party presents voters with a list of its candidates; voters cast their votes for a party’s candi- dates; each party is then awarded a number of seats roughly in proportion to its overall share of the vote. Countries with a list system may also permit voters to indicate their preferences among the party’s candi- dates. The party’s seats are then filled by the candi- dates who are most preferred by the voters. Twelve of the twenty-two advanced democratic countries employ the list system of proportional representation, and an- other six use some variant of it. (See Appendix B, Table 3.)

Of the four countries without proportional repre- sentation, France avoids one of the defects of single- member districts by providing that in parliamentary districts where no candidate receives an absolute ma- jority of votes, a second election will be held in which the two candidates with the highest number of votes compete. This run-off, two-round, or double-ballot sys- tem, as it is variously called, thereby ensures that all the members have been elected by a majority of the voters in their constituency.

This leaves the three oddballs with first-past-the- post, a plurality system in single member districts: Canada, the United Kingdom, and the United States. Even in the United Kingdom, the original source on which the Americans drew, the traditional system was

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replaced by proportional representation in the 1999 elections to the newly created legislative bodies in Scotland and Wales. Four parties won seats in the Scottish Parliament, and four too in the Welsh Assem- bly. What is more, the Independent Commission on the Voting System set up by the Labor Party in 1997 to recommend an alternative to first-past-the-post pro- posed in its report a year later that members of the House of Commons be elected by means of a propor- tional representation system—a hybrid, to be sure, but one that would ensure greater proportionality be- tween votes and seats in that ancient house.15 It is al- together possible that one day not far off, Britain will be added to the list of proportional representation countries, leaving only Canada and the United States among the advanced democracies with first-past-the- post.

Although few Americans know much about experi- ence in the other advanced democratic countries with proportional representation and multiparty systems, they seem to have strong prejudices against both. Un- willing to conceive of an alternative to first-past-the- post and under pressure to ensure fairer representa- tion for minorities in state legislatures and Congress, our legislatures and federal courts in recent years have sometimes gerrymandered weirdly shaped districts. . . well, yes, rather like a salamander. But neither legisla- tures nor courts seem willing to give serious thought to some form of proportional representation as quite possibly a better alternative.

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The extent to which we take first-past-the-post for granted was clearly revealed in 1993, when it was dis- covered that a well-qualified candidate to head the Civil Rights Division of the Department of Justice had written an article in a law journal suggesting that a rather sensible system of proportional representation might be worth considering as a possible solution to the problem of securing more adequate minority repre- sentation.16 From the comments the author’s innocent heresy generated, you might have thought that she had burned the American flag on the steps of the Supreme Court. Her candidacy, naturally, was stone dead.

First-past-the-post was the only game in town in 1787 and for some generations thereafter. Like the locomotive, proportional representation had not yet been invented. It was not fully conceived until the mid-nineteenth century when a Dane and two Eng- lishmen—one of them John Stuart Mill—provided a systematic formulation. Since then it has become the system overwhelmingly preferred in the older democ- racies.

After more than a century of experience with other alternatives, isn’t it time at last to open our minds to the possibility that first-past-the-post may be just fine for horse races but might not be best for elections in a large and diverse democratic country like ours? Might we not also want to consider the possible advantages of a multiparty system?

I do not say that we should necessarily make these choices. But should we not at least give them serious

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consideration? Shouldn’t we ask ourselves this ques- tion: What kind of electoral and party systems would best serve democratic ends?

Party Systems

Nearly a half-century ago, a French political scientist, Maurice Duverger, proposed what came to be called Duverger’s Law: first-past-the-post electoral systems tend to result in two-party systems. Conversely, pro- portional representation systems are likely to produce multiparty systems.17 Although the causal relation may be more complex than my brief statement of Du- verger’s Law suggests,18 a country with a proportional representation system is likely to require coalition gov- ernments consisting of two or more parties. In a coun- try with a first-past-the-post electoral system, however, a single party is more likely to control both the execu- tive and the legislature. Thus in countries with propor- tional representation–multiparty systems and coalition governments, minorities tend to be represented more effectively in governing. By contrast, in countries with first-past-the-post and two-party systems, the govern- ment is more likely to be in the hands of a single party that has gained a majority of seats in the parliament and the most popular votes, whether by an outright majority, or more commonly, a plurality. To distinguish the two major alternatives, I’ll refer to the propor- tional representation–multiparty countries as “propor-

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tional” and countries with first-past-the-post electoral systems and only two major parties as “majoritarian.”19

Where does the United States fit in? As usual: in neither category. It is a mixed system, a hybrid, nei- ther predominantly proportional nor predominantly majoritarian. (See Appendix B, Table 4.) I am going to return to the American hybrid in Chapter 5, but three brief observations may help to put it in perspective here. First, the Framers had no way of knowing about the major alternatives to first-past-the-post, much less fully understanding them. Second, since the Framers’ time most of the older and highly stable democratic countries have rejected first-past-the-post and opted instead for proportional systems. Third, our mixed de- sign contributes even further to the unusual structure of our constitutional system.

Our Unique Presidential System

As we make our way through the list of countries that share some constitutional features with the United States, the list, short to begin with, diminishes even fur- ther. By the time we reach the presidency the United States ceases to be simply unusual. It becomes unique.

Among the twenty-two advanced democracies, the United States stands almost alone in possessing a single popularly elected chief executive endowed with im- portant constitutional powers—a presidential system. Except for Costa Rica, all the other countries govern

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themselves with some variation of a parliamentary sys- tem in which the executive, a prime minister, is chosen by the national legislature. In the mixed systems of France and Finland, most of the important constitu- tional powers are assigned to the prime minister, but an elected president is also provided with certain pow- ers—chiefly over foreign relations. This arrangement may lead, as in France, to a president from one major party and a prime minister from the opposing party, a situation that with a nice Gallic touch the French call “cohabitation.” Yet even allowing for the French and Finnish variations, none of the other advanced demo- cratic countries has a presidential system like ours.

Why is this? The question breaks down into sev- eral parts. Why did the Framers choose a presidential system? Why didn’t they choose a parliamentary sys- tem? Why have all the other advanced democratic countries rejected our presidential system? Why have they adopted some variant of a parliamentary system instead, or as in France and Finland a system that is predominantly parliamentary with an added touch of presidentialism?

To answer these questions in detail would go be- yond our limits here. But let me sketch a brief answer.

Before I do so, however, I want to admonish you not to cite the explanation given in the Federalist Papers. These were very far from critical, objective analyses of the constitution. If we employ a dictionary definition of propaganda as “information or ideas me- thodically spread to promote or injure a cause, nation,

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etc.,” then the Federalist Papers were surely propa- ganda. They were written post hoc by partisans— Alexander Hamilton, John Jay, and James Madison— who wanted to persuade doubters of the virtues of the proposed constitution in order to secure its adoption in the forthcoming state conventions. Although they were very fine essays indeed, and for the most part much worth reading today, they render the work of the convention more coherent, rational, and compel- ling than it really was. Ironically, by the way, the task of explaining and defending the Framers’ design for the presidency was assigned to Hamilton, who had somewhat injudiciously remarked in the Convention that as to the executive, “The English model was the only good one on this subject,” because “the heredi- tary interest of the king was so interwoven with that of the nation. . . and at the same time was both suffi- ciently independent and sufficiently controuled [sic], to answer the purpose.” He then proposed that the ex- ecutive and one branch of the legislature “hold their places for life, or at least during good behavior.”20 Per- haps as a result of these remarks, Hamilton seems to have had only a modest influence in the Convention on that matter or any other.

How it came about. What is revealed in the most complete record of the Convention21 is a body floun- dering in its attempts to answer an impossibly difficult question: How should the chief executive of a republic be selected, and what constitutional powers should be assigned to the executive branch? The question was im-

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possibly difficult because, as I emphasized in the pre- vious chapter, the Framers had no relevant model of republican government to give them guidance. Most of all, they lacked any suitable model for the executive branch. To be sure, they could draw on the sacred doc- trine of “separation of powers.” Not surprisingly, the references to that doctrine recorded in Madison’s notes were all positive. And up to a point, its implications were obvious: a republic would need an independent judiciary, a bicameral legislature consisting of a popular house and some kind of second chamber to check the popular house, and an independent executive.

But how was the independent executive to be cho- sen? How independent of the legislature and of the people should he be? How long should his term of of- fice be? (“He” is, of course, the language of Article II and, like most Americans until recently, the only way the Framers could conceive of the office.) The British constitution was a helpful model for the Framers in some respects. But as a solution to the problem of the executive, it utterly failed them. Despite the respect of the delegates for many aspects of the British constitu- tion, a monarchy was simply out of the question.22

Even so, they might have chosen a democratic ver- sion of the parliamentary system, as the other evolving European democracies were to do. Although they were unaware of it, even in Britain a parliamentary system was already evolving. Why then didn’t the Framers come up with a republican version of a parliamentary system?

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Well, they almost did. It has been too little empha- sized, I think, that the Framers actually came very close to adopting something like a parliamentary sys- tem. What is more, it is far from clear, to me at least, why they rejected it and ended up instead with a pres- idential system.23 One obvious solution—even more obvious to us today than it would have been in 1787— was to allow the national legislature to choose the ex- ecutive. In fact, throughout most of the Convention this was their favored solution. Right off the bat on June 2, only two weeks after the Convention opened, the Virginia delegation, which contained some of the best minds and most influential delegates, proposed that the national executive should be chosen by the na- tional legislature. In Madison’s notes, the subsequent course of that proposal and the alternatives to it has left a fascinating and often mystifying trail.

The meandering trail they pursued, as best I can reconstruct it, looks something like this.24 On three occasions—July 17, July 24, and July 26—the dele- gates vote for the selection of the president by “the na- tional legislature,” the first time by a unanimous vote, the last by a vote of 6 – 3. With one exception every other alternative is defeated by substantial majorities: in a puzzling detour on July 19, with Massachusetts di- vided, they vote 6 – 3 for electors appointed by the state legislatures. On July 26, their favored solution, election by the national legislature, is forwarded to a Committee on Detail. On August 6 the committee duly reports in favor of election by the national legislature.

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On August 24 two other alternatives fail once again. A new committee to consider the issue reports back on September 4. By now the delegates are eager to wind up a convention that has already gone on for three months. In contradiction to the recommendation of the previous committee, however, this one recom- mends that the executive be chosen by electors ap- pointed by the state legislatures. Two days later, with nine states in favor and only two opposed, the impa- tient delegates adopt this solution.

Well, not exactly. What they adopt actually states that: “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and representa- tives to which the State may be entitled in Congress.” Whatever the Framers intend by these words, they will offer a huge opportunity for the democratic phase of the American revolution to democratize the presidency.

Ten days after they agree on this provision, the constitution is signed and the Convention adjourns.

What this strange record suggests to me is a group of baffled and confused men who finally settle on a so- lution more out of desperation than confidence. As events were soon to show, they had little understand- ing of how their solution would work out in practice.

So the question remains with no clear answer: Why, finally, did they fail to adopt the solution they had seemed to favor, a president elected by the Congress, a sort of American version of a parliamentary system? The standard answer no doubt has some validity: they feared

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that the president might be too beholden to Congress. And all the other alternatives seemed to them worse.

Among these alternatives was election by the people, which had been twice rejected overwhelm- ingly. Yet it was this twice-rejected solution, election by the people, that was quickly adopted de facto dur- ing the democratic phase of the American revolution.

How their solution failed. Perhaps in no part of their work did the Framers fail more completely to design a constitution that would prove acceptable to a democratic people. As I have mentioned, their hope for a group of electors who might exercise their inde- pendent judgments about the best candidate to fill the office came a cropper following the election of 1800. But as I shall describe in the next chapter, more was still to come. If the election of 1800 first revealed how inappropriate the electoral college was in a democratic order, the presidential election of 2000, two centuries later, dramatized for all the world to witness the con- flict between the Framers’ constitution and the demo- cratic ideal of political equality.

Ironically, had they adopted the Virginia Plan and placed the choice of the chief executive in the hands of the legislature, as would become the practice in parlia- mentary systems, the Framers would have put a bit more distance between the people and the president than their solution provided in practice. Here again, in 1787 they could not anticipate a constitutional design that was yet to evolve fully in Britain and, even later, in other countries on the path to democracy.

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The continuing democratic revolution would bring about an even more profound change in the presi- dency. However deftly Jefferson steered the Congress as he rode the tide of the democratic revolution, he never publicly challenged the standard view that the only legitimate representative of the popular will was the Congress, not the president. Nor did any of his successors, Madison, Monroe, John Quincy Adams, lay down such a claim.

Andrew Jackson did just that. In justifying his use of the veto against Congressional majorities, as the only national official who had been elected by all the people and not just by a small fraction, as were Sena- tors and Representatives, Jackson insisted that he alone could claim to represent all the people. Thus Jackson began what I have called the myth of the presidential mandate: that by winning a majority of popular (and presumably electoral) votes, the president has gained a “mandate” to carry out whatever he had proposed during the campaign.25 Although he was bitterly at- tacked for this audacious assertion, which not all later presidents supported, it gained credibility from its re- assertion by Lincoln, Cleveland, Theodore Roosevelt, and Wilson and was finally nailed firmly in place by Franklin Roosevelt.

Whatever we may think of the validity of the claim—I am inclined to think it is little more than a myth created to serve the political purposes of ambi- tious presidents—it is simply one part of a transforma- tion of the presidency in response to democratic ideas

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and beliefs that has produced an office completely dif- ferent from the office that the Framers thought they were creating, vague and uncertain as their intentions may have been.

And a good thing, too, you may say. But if you ap- prove of the democratization of the presidency—or, as I would prefer to say, its pseudo-democratization—aren’t you suggesting in effect that the constitutional system should be altered to meet democratic requirements?

Why other countries became parliamentary de- mocracies. There is still one more reason why the Framers didn’t choose a parliamentary system. They had no model to inspire them. One hadn’t yet been in- vented.

The British constitutional system they knew, and in some respects admired, was already on its way to his- tory’s attic of abandoned or failed constitutions. Al- though no one saw it clearly in 1787, even at the time of the Convention the British constitution was under- going rapid change. Most important, the monarch was swiftly losing the power to impose a prime minister on the parliament. The contrary assumption was gaining strength: that a prime minister must receive a vote of confidence from both houses of parliament, and that he must resign if and whenever he lost their confi- dence. But this profound change in the British consti- tution did not become fully manifest until 1832, too late for the Framers to see its possibilities.

In addition, there was the problem of a monarch. How could a country have a parliamentary system

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without a symbolic head of state who would perform ceremonial functions, symbolize the unity of the coun- try, and help to confer legitimacy on the parliament’s choice by anointing him as prime minister? After the evolution of a parliamentary system in Britain, in due time monarchies also helped the Swedes, the Danes, and the Norwegians—and much later Japan and Spain—to move to a parliamentary system that the monarchy helped to legitimize. But in 1787 the full development of parliamentary democracy in countries with a monarchy was still a long way off. For Ameri- cans, a monarch, even a ceremonial monarch, was com- pletely out of the question. So why didn’t they split the two functions, ceremonial and executive, by creating a titular head of state to serve in the place of a ceremo- nial monarch, and a chief executive, the equivalent of a prime minister, to whom executive functions would be assigned? Although that arrangement may seem obvious enough to us now, for the Framers in 1787 it was even more distant than the system that was gradu- ally evolving in Britain, the country they knew best. It was not until after 1875 and the installation of the Third Republic in France that the French evolved a solution that would later be adopted in many other de- mocratizing countries: a president elected by the par- liament, or in some cases by the people, who serves as formal head of state, and a prime minister chosen by and responsible to the parliament, who serves as the actual chief executive. But for the Framers this inven- tion, which now seems obvious enough to us, was al-

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most as far off and about as difficult to imagine, per- haps, as a transcontinental railroad.

Without intending to do so, then, the Framers cre- ated a constitutional framework that under the driving impact of the continuing American Revolution would develop a presidency radically different from the one they had in mind. In time American presidents would gain office by means of popular elections—a solution the Framers rejected and feared—and by combining the functions of a head of state with those of a chief executive the president would be the equivalent of monarch and prime minister rolled into one.

I can’t help wondering whether the presidency that has emerged is appropriate for a modern demo- cratic country like ours.

� � �

SO: AMONG THE OLDER DEMOCRACIES OUR CONSTITU- tional system is not just unusual. It is unique.

Well, you might say, being unique isn’t necessarily bad. Perhaps our constitutional system is better for it.

Better by what standards? Is it more democratic? Does it perform better in many ways? Or worse?

These questions are by no means easy to answer— probably impossible to answer with finality. But before turning to them, we need to take one more look at that anomalous vestige of the Framers’ work, the electoral college.

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