Image: via Michael Stokes, Wikimedia Commons
I wish to reflect on what I believe is a serious flaw in the Constitution of the American Republic. But let me begin in a roundabout way with a personal anecdote.
It is the spring of 1994. I am doing research at the Truman Presidential Library in Independence, Missouri. News comes of the death of Richard Nixon, 37th President of the United States. The library calls a meeting of the staff, which is held in the main reading room where researchers work. The library director informs everyone that as a national day of mourning has been called for the next day, the library will be closed.
The director is at pains to admonish staff that they should not take the closure as an opportunity for an unexpected holiday. Instead, he solemnly declares, they should take the occasion to reflect deeply on the importance of the presidency to the life of the nation and the world and on the contribution this President had made to the institution. I am taken aback. After all, this particular President happened to be the only presidential incumbent in two centuries forced to resign the office to avoid the certain prospect of impeachment and conviction for “high crimes and misdemeanors” against the Constitution. I scan the faces of the attending staff members of a Democratic presidential library, expecting to see glimpses of amusement at this sanctification of a Republican President who might better be described as a disgrace to the office and an embarrassment to the nation. But no, not a flicker of irony that I can detect on any of the earnest faces.
To me, this was a kind of epiphany. My mother was born American; I had travelled all over the United States; I had read widely in American history, politics and literature; I cherish many American contributions to global culture, like jazz and baseball. Yet here I was amid a crowd of Americans, discovering that I was in a foreign country, where they think and do things differently. I could not imagine an equivalent Canadian situation.
In the years since, I have come to realize that the point of difference I detected at that moment was less a difference of culture or ideology than an institutional divergence, based on different constitutional frameworks for governing.
When the American colonists in the 18th century carried out a revolution against Britain’s autocratic but clumsy and faraway imperial rule, they were faced with the necessity of creating a republican form of government de nouveau. The founders were inventive, fashioning the first modern democracy. Unlike the more radical and unstable governance that emerged from the French Revolution, the American experiment strove to achieve an Aristotelian equilibrium: power was divided among the executive, legislative and judicial branches with built-in checks and balances, as well as between the national and state governments with specified jurisdictional boundaries.
Despite its “We the People” rhetoric, American democracy was at first limited. Women were excluded from the vote and only enfranchised in the early 20th century. It was only in 1913 that a constitutional amendment finally ensured that senators would be directly elected rather than chosen by state legislatures. A notorious deal with southern slave states counted three fifths of the slave population for purposes of representation in the House of Representatives; as late as the 1960s, a century after the abolition of slavery, lives were lost in the struggle to enfranchise Blacks in the segregated south.
Yet for all its shortcomings, America pioneered democratic forms of governance. Today, at the formal rhetorical level at least, the demos reigns supreme. Every politician seeking office must publicly defer to the will of the “People,” symbolic populist pandering in the manner of sycophantic courtiers of old seeking favours from the sovereign through flattery and displays of subservience.
Nowhere is the growth of democratization more striking than in the evolving institution of the presidency.
Presidents were initially to be chosen by the bizarre institution of the electoral college, made up of individuals chosen by state legislatures to cast their votes for president and vice president. Democratic pressures diminished barriers to direct voting. The electoral college in practice chooses electors to reflect the popular vote, albeit imperfectly. Despite efforts to keep selection at arm’s length from direct popular control, it was apparent that the presidency would have a special significance as the personification of the American people in public office. Even at the outset, in the 18th century, the office was seen as so important that its first holder was the revolutionary war hero General George Washington, fittingly enough as the president is also constitutionally the commander in chief of the armed forces.
As democratization of the institutions of American government proceeded through the 19th and 20th centuries, the democratic authority of the presidency grew to the point where the quadrennial presidential elections have become virtually the defining moments of American democracy. With America’s emergence from World War II as global hegemon with the presidential finger on the nuclear trigger, the office was further inflated into the “imperial presidency,” especially as the United States intervened in military conflicts around the world, sending hundreds of thousands of Americans by presidential fiat into bloody combat zones like Korea, Vietnam, Afghanistan and Iraq, with congressional support reduced to little more than pro forma rubber stamps after the event.
How did the revolt of the American colonies against what was perceived as autocratic and arbitrary rule by the monarchical British Empire result in a successor political system that vests immense power and authority in a single office?
When the framers of the Constitution set about designing a republican alternative to monarchical British rule, they inadvertently created an executive office with potentially more power and authority than the English king they were replacing. Even mad King George III, who presided over the loss of the American colonies, was merely titular head of state with limited influence over “his” prime minister and government. The “Crown in Parliament” is a symbolic description of constitutional monarchy: the effective executive is in the hands of the party or coalition that has the confidence of the House of Commons. Charles I lost his head as a result of defying Parliament. Charles III is unlikely to repeat that fatal error.
The American framers, working without any contemporary models, with highly imperfect models from the ancient and Renaissance past, struggling to shape a republican executive de nouveau, hit upon what turned out to be a bad idea: a presidency that combines in a single office – and single person – the different functions of head of state and head of government. In a place like China, a one-party system where the state and politics are seamlessly fused together, that combination makes perfect sense. But in a liberal democratic state, where politics are adversarial and competitive, the formal separation of the state from the partisan political system is an existential requirement. Governments and ruling parties come and go with successive elections, but the state endures, embodying a framework of rules and boundaries within and under which politics may be contested. That separation explains why the principle of the rule of law, while no more than a dishonest slogan in China, can be seen as a vital foundation of liberal democracy.
The American constitutional variant raises questions about the validity of the separation of state and government, illustrated by the grotesque ritual, now practised regularly by retiring or defeated presidents of issuing pardons to persons convicted of criminal offences. That a president has the discretionary and arbitrary authority to override the courts and the judicial process in individual cases is itself a sign of the quasi-monarchical powers of the highest office. Worse, in practice this exercise of state prerogative satisfies partisan purposes: Republican presidents pardon Republican crooks; Democratic presidents pardon Democratic crooks.
The American framers believed they had designed a basis for containing overweening presidential ambition in a Constitution to which the president is as subordinate as the members of the legislative branch and the state governments. To a considerable extent this is true. The Constitution ensures an elaborate system of checks and balances that can limit presidential powers: Congress holds the ultimate power of the purse; presidential vetoes of congressional legislation can be overridden by a supermajority in Congress; the Supreme Court can rule presidential actions ultra vires; and finally a president can be impeached by the House and convicted and removed from office by the Senate.
There are mixed results of these checks and balances in practice. Supreme Court undermining of New Deal legislation led to the failed attempt by Franklin Roosevelt to “pack” the Court with new Democratic-friendly judges; that example has deterred President Biden from rejigging a Supreme Court that Trump has stuffed with far-right judges, making it in some ways a partisan arm of the Republican Party. The impeachment power has failed to dislodge sitting presidents, from Andrew Johnson (1868) to Bill Clinton (1998–99) to Donald Trump who was impeached twice (2019–20 and 2021). On the other hand, Richard Nixon toted up the numbers and resigned to evade almost certain impeachment and conviction, but arranged to have his successor preemptively pardon him from the legal consequences of the actions that would have led to his enforced removal from office.
One could go on in greater detail about the actual constraints that hedge in the imperial presidency in practice. But here’s the thing. What the framers missed, and perhaps failed to imagine, is the immense symbolic authority of a democratically elected president embodying both enduring state principles and transitory partisan politics. In normal times, this matters little. But when the nation becomes deeply divided along partisan lines, it can matter a great deal.
Divisions between the slave-owning south and the capitalist north were so irreconcilable in 1860 that the election of a candidate from a party seen as antislavery, Abraham Lincoln, was enough to drive the southern states into outright secession and precipitate the Civil War, in which three quarters of a million Americans perished. A century and a half later, a president without respect for any of the constitutional rules and customary norms that hitherto have governed the transition of power following the democratic vote refused to accept the result of the 2020 election. Basing his refusal on evidence-free assertions of massive vote fraud, he encouraged an insurrectionary rabble to assault the Capitol in a vain but destructive attempt to cling unlawfully to power.
Acceptance of the verdict of the voters and the peaceful transition of power after a governing party is defeated in an election are crucial elements in any healthy liberal democracy. Trump and the majority of Republicans are now saying that they will accept their victory as the only legitimate result, insisting that their voters are the only “real” Americans. Beyond the phony rhetoric, Republicans are actually striving to replace democratic authority with the age-old standard of autocrats seizing or clinging to power: “kill or be killed.” No wonder rumours of a second civil war have been gathering over the coming 2024 contest.
As in the mid-19th century, there are effectively two nations within the union, lined up behind rival parties, each identifying the other as the archenemy. When a victorious presidential candidate of one party becomes both the head of the permanent state and the head of the transitory government, the stakes are perilously high. As in the years that led to the Civil War, it is once again the American state itself that is seen as a prize to be seized through the partisan electoral struggle.
Trump now faces 91 separate criminal indictments, issued via the justice systems of the United States and the states of New York and Georgia, for grave alleged offences (inciting insurrection; attempting to corrupt and undermine the electoral process; unauthorized possession of classified national security documents, among other charges). Strictly political calculations of the impact of the prosecutions and possible incarceration of the leading Republican candidate in 2024 aside, some voices, those of outraged Republicans but of anxious Democrats and independents as well, have questioned whether a former president should under any circumstances be subjected to the criminal justice process.
Ordinary citizens are routinely prosecuted if there are reasonable and probable grounds to believe that they have broken the law. Serious and respected commentators argue that a president, even a former president, should not be held to the same standard – in effect, that he is not or should not be subject to the rule of law, simply on the basis of having held the exalted office. Worse, each successive set of indictments has had the perverse effect of expanding Trump’s lead for the Republican nomination. It is as if presidents have acquired protection from the ancient offence of lèse-majesté. Was this what the American colonists fought for at Lexington and Concord?
Of course, the overinflated presidency is not, in and of itself, the cause of civil conflict. In the 19th century, it was an “irrepressible conflict,” as William Seward put it in 1858, between two incompatible modes of production, one of which sustained values contrary to liberal capitalist democracy. Divisions today between red and blue states have structural roots in a changing political economy and the deep cultural rifts that result. But the dual role of the presidency as both head of state and head of government raises the stakes of each election exponentially. The winner-take-all nature of the presidential contest drives up the costs of negotiating the tradeoffs necessary for a peaceful resolution – or even for a live-and-let-live compromise.
Non-Americans can only watch events unfolding in the unravelling Republic with anxiety. Foreigners can exert no influence, however well-meaning: Americans will do what Americans will do. But for countries like Canada, recently contemplating change from constitutional monarchy to democratic republic, the American model, once touted as a beacon to the world, offers only a warning: don’t go there. Certainly don’t repeat the American error of fusing head of state and head of government in a single office (few later republics have in fact made that mistake).
Replacing the British monarch as head of state appeals to many Canadians’ democratic and nationalist perspectives. But beware the devil in the details of how a Canadian president or republican governor general would be chosen. Popular election would be a very bad idea, the choice inevitably corrupted by partisanship as each party struggled to control the office. Allowing the head of government to choose the head of state, as vice-regal representatives are chosen today, just encourages partisan framing of officeholders’ reputations. As for an all-party or nonpartisan selection body – well, good luck with that. Impatience with an apparently anachronistic British Crown is understandable. But for would-be Canadian republicans, the American model offers a warning: be careful what you wish for.