Constitutional Gridlock

The United States has the world’s oldest and shortest written constitution. This naturally invites the question “Is the US constitution out of date and in need of drastic updating?” One letter writer in the April 25 edition of The Economist thinks so. I do not normally concern myself much with what a letter writer thinks, at least not enough to blog about it. However, in this case the writer has identified himself as Philip Cerny, Professor emeritus of politics, University of Manchester. Since he has effectively billed himself as a sort of expert on the subject whereof he speaks, I feel that criticism is fair and worthwhile.

Prof. Cerny begins his letter by correctly observing that, unlike a US President, a British Prime Minister whose party has a majority in the House of Commons can effectively rule as he pleases. He more than implies that this is a good thing. I am not convinced. But I am more interested in his thoughts on the US system than the Westminster one.

Prof. Cerny opines that the relative weakness of the office of US President is responsible for current ills:

“But the record of the past four years in particular has been one of gridlocked government rooted in an anachronistic 18th-century constitution with a dysfunctional separation of powers.”

I’m not quite sure where to begin explaining the ways in which this statement is wrong.

First, if Prof. Cerny knew a bit more about American history, he would know that there is nothing singular about the current state of American political gridlock. It has existed on and off almost since the founding of the republic. American politics has always had an ugly and partisan side to it, from the days of the first party system (Federalists versus Jeffersonian Republicans) to the second (Republicans versus Whigs), to today. The gridlock over the slavery issue in the 1850s makes today’s politics look downright gentlemanly — at least there is no Charles Sumner being nearly clubbed to death on the Senate floor by a Preston Brooks. So yes, political deadlock is a fact of American political life.

Second, instead of viewing the constitutional separation of powers as “dysfunctional”, one could argue that it is functioning more or less as the founding generation intended it to, insofar as it is hindering activist government and preventing what I like to call “political entrepreneurialism”. In Federalist No. 48 Madison worried that in pre-Constitution state governments “[t]he legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” He said that critics of the proposed constitution “seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.” One of the reasons for instituting a robust separation of powers is to slow down this impetuous vortex, to allow enough time for two things essential to wise government to assert themselves: reflection and compromise.

On that score, I would say that, Prof. Cerny’s opinion notwithstanding, the separation of powers has not been effective enough in slowing down government. Too much legislation is being created, and too much of that legislation is unwise (to say the least). Meanwhile, successive presidents have found ways to get around the separation of powers, leading to what some critics have called “the imperial presidency”.

Prof. Cerny praises the union of legislative and executive functions in the hands of the British Prime Minister. I would argue that the only reason this has not been an utter disaster for Britain — though some cynics would say it has been a disaster — has more to do with peculiarities of British history and culture. Fortunately, this has been mostly passed on to the heirs of Westminster-style democracy in countries such as Canada and Australia. Let us instead call to mind other examples of nations with a robust union of powers. Shall we praise the Soviet Union under Stalin? Germany under Hitler? Zimbabwe under Mugabe? These have all united the legislative and executive functions in the same hands.

I submit that America’s political deadlock has little to do with the age of its constitution. One of the virtues of that constitution is the relative ease with which it can be amended. And it has in fact been amended as recently as 1992. By contrast, Canada’s constitution is effectively unamendable. And let us politely avert our eyes in shame from the anachronisms of British parliamentary democracy. If the US has “an anachronistic 18th-century constitution” (as Prof. Cerny puts it), the British have a positively medieval one.

Nor is America’s political deadlock attributable solely to the constitutional structure of its governing institutions as such. There are other nations with similar republican constitutions that work reasonably well. And America’s has worked reasonably well throughout most of its history, up to quite recent times. It became the world’s oldest written constitution for a reason: simply put, it worked.

If there was a flaw in the Founders’ plan it was this: The Founders were 18th-century gentlemen with an 18th-century gentleman’s view of politics based on compromise, mutual civility, and disinterested service for the public good. They did not foresee the rise of party systems, nor did they foresee the development of an American political class no longer able to live up to those ideals of compromise, mutual civility, and high-minded public service.

It is not the constitution that is broken, it is the people charged with upholding it.