Seeds of Monarchy?
By: John Yoo
Posted: August 12, 2014
A review of The Once and Future King: The Rise of Crown Government in America, by F.H. Buckley
iberals have long attacked the Constitution’s separation of powers. Thomas Jefferson, in some ways the original radical, started the ball rolling by using his political party to synchronize the executive and legislative branches while also contesting the judiciary’s independence. Teddy Roosevelt, Woodrow Wilson, and Franklin D. Roosevelt viewed the tripartite system of government as an obstacle to their centralization of power in an unaccountable federal bureaucracy. As CRB editor Charles R. Kesler charted in his I Am the Change: Barack Obama and the Crisis of Liberalism (2012), Lyndon Johnson and Barack Obama were at the forefront of subsequent liberal waves meant to swamp the Constitution’s structure in the name of progressive government.
F.H. Buckley, a scholar of law and economics at George Mason University law school, condemns the separation of powers, but criticizes it for facilitating, rather than impeding Big Government. Like his institution’s namesake, Buckley is a libertarian who sees government power as a threat to individual rights and economic freedom. Unlike George Mason, however, who feared a Congress unrestrained by a separation of powers or a Bill of Rights, Buckley believes the main threat to liberty is the American presidency.
* * *
Buckley’s new book, The Once and Future King, is no campaign tract for Rand Paul (though such thoughtful arguments would boost his political prospects). Unlike Senator Paul, Buckley is not running for an office whose power he opposes, much like a drug kingpin running for police commissioner. Instead, Buckley has written this book to prove that presidents are worse than parliaments. He argues that a parliamentary system: 1) fosters freedom better than a presidential one; 2) was the founders’ intended form of government; and 3) has liberty-enhancing virtues now enjoyed by Canadians and Europeans but denied to Americans. Although provocative and entertaining, The Once and Future King misunderstands the founding, the presidency, and the requirements of freedom.
First, Buckley claims that the founders reacted against the tyranny of King George III by establishing a Constitution opposed to executive power. Professor Buckley would be right if the founders had ratified the Constitution in 1776. During the Revolution, our forefathers wrote state constitutions that understandably reacted against monarchy by weakening the power and unity of the state governors, subjecting them to legislative election, saddling them with councils, limiting them to just one or two years in office, and barring their re-appointment. As historian Gordon Wood has written, the revolutionary state constitutions made governors “little more than chairmen of their executive boards.”
But this American experiment in parliamentary government failed. Simple majoritarian government led in the states to widespread abuses, such as the cancellation of debts and taking of property, unstable administration, and the oppression of minorities. Unrestrained democracy produced sharp, abrupt swings in policy that destabilized the newly independent states. The Articles of Confederation had no executive branch at all, which contributed to the inability of the Union to conduct foreign policy and protect the national security. There is a reason that historians refer to the period between the Revolution and the Washington Administration as the Critical Period.
* * *
Presidential historians have also argued, as I did in Crisis and Command: A History of Executive Power from George Washington to George W. Bush (2010), that post-revolutionary disorder convinced the founders to restore executive power as a counterweight to the legislature. As The Federalist explains, each branch of government must be given “the necessary constitutional means and personal motives to resist encroachments of the others…. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place”—that is, of the branch of government. Further describing a move away from the parliamentary form, James Madison, writing as Publius, argues, “As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.” The founders knew the parliamentary system, here and in Great Britain, but rejected it in favor of a unitary president and an independent judiciary.
Second, Buckley overlooks the primary purpose of the presidency. As Harvey C. Mansfield argued in Taming the Prince (1989), Machiavelli’s creation of modern political science included a new foundation for executive power, subsequently modified by Thomas Hobbes, John Locke, and the Baron de Montesquieu. Nations needed executives because legislatures could not predict the future with their laws. A branch of government must always be in existence, ready to act swiftly and decisively in response to unforeseen emergencies and crises. Executives could rise to the challenge of foreign affairs, national security, and war, which would paralyze slow, deliberate legislatures. A prime minister beholden to a parliamentary majority could not act with the “decision, activity, secrecy, and despatch” described by Alexander Hamilton in The Federalist. A president, elected by the people and independent of the legislature, could concentrate power to defend against foreign attack and to pursue the national interest abroad, where the demand for speed and decisiveness is high and the costs of failure are steep.
Buckley’s approach ignores the important difference between the executive at home and abroad. At home, the need for a powerful, unitary executive is reduced. Domestic problems do not often require Machiavellian decisiveness because they usually involve questions—such as tax rates, benefit programs, or road construction—that do not demand immediate solution. Some, such as crime and poverty, can only be managed but never really solved. Others, such as aligning taxes and spending, pose trade-offs requiring high levels of political agreement. Legislatures have time for deliberation and consensus-building, and the states are present as regulators and lawmakers even if the federal government fails to act. The costs of inaction are not high, measured against the benefits of more careful study and greater political agreement.
Foreign affairs, however, are utterly different. An energetic executive is necessary precisely because the costs of delay in protecting the national security can be devastating. There is no backup provided by the states should the federal government fail. In foreign affairs, passivity’s harm can far outweigh the gains from gathering more information or trying to build political agreement. Witness the failure of the democracies—mostly parliamentary democracies—to confront the rise of fascism in Europe and Japan in the 1930s. Conservatives and libertarians can make the mistake of believing the executive must be equally powerful, or weak, in both foreign and domestic affairs. But that is like assuming that a person who wears light clothing in a warm house will not need heavier garments outdoors. Our framers understood the Constitution to create a presidency that would remain constrained in domestic affairs, limited primarily to executing the laws, but would hold the initiative in foreign affairs.
* * *
Were these Buckley’s only arguments against the modern presidency, Once and Future King would bring little new to the table. But he also introduces a daring, provocative thesis: Americans would enjoy more freedom under a parliamentary than a presidential system. He rests his arguments on both theory and data. On the level of theory, Buckley argues that the separation of powers tends to produce gridlock because the actions and agendas of the popularly elected House, the state-representing (though much less than it used to be) Senate, and the nationally elected president are so rarely in accord. Presidents can take advantage of the stalemate to rule by executive decree and expand their power at the expense of individual liberty. Political scientists have made similar arguments to explain the waves of democracy and dictatorship in Latin America.
This theory may explain South American governments, but not their northern cousin. From the libertarian perspective, the greatest federal assaults on individual rights have come during the New Deal and the Great Society. These periods witnessed the birth and great growth of Congress’s regulatory powers, the delegation of legislative powers to independent agencies, large income redistribution programs, and new and higher taxes. The 1930s and 1960s suffered from many things, but divided government was not one of them. Democrats enjoyed super-majorities in Congress and control of the White House. As political scientist Sydney A. Pearson, Jr., has written: during FDR’s First Hundred Days in 1933, when 61% of the Senate and 73% of the House was Democratic, the White House wrote bills and sent them to Congress, “where they were rubber-stamped without debate, and enacted into law. For a brief period the American people saw how a parliamentary system would function.” A separation of powers may produce gridlock, but government paralysis prevents the state from inevitably expanding its regulatory authority at the expense of liberty.
* * *
It is presidential rather than parliamentary government that has produced the stability necessary for liberty to flourish. Historically, the separation of powers has shielded us from some of the disasters, political and social, that have afflicted other nations. Unlike Western Europe, in the U.S. Communist and socialist parties have never held political power. Nor has America suffered from the authoritarianism that spread through Europe and Asia in the 1930s. “When the legislative and executive powers are united in the same person, or in the same body of magistrates,” Montesquieu warned us, “there can be no liberty.” Parliamentary systems are more prone to wild swings, because a political party need only assemble 50.1% of the legislative vote to enact any program. The American system effectively requires supermajorities to enact significant laws, which renders rapid, radical change difficult.
Buckley’s empirical argument purports to demonstrate a link between presidential systems and lower levels of economic freedom, based on Freedom House-style index scores since the 1970s. Reducing the complexities of culture and government to a regression model is no easy task, however. He makes much of Britain’s parliamentary system and Canada’s higher economic freedom scores. Nevertheless, it is difficult to see Britain as a superior bastion of liberty when we consider the U.K.’s hate speech laws, large redistributive state, and lack of a Bill of Rights. Before Margaret Thatcher, British citizens were beset by government-controlled media, nationalized steel and coal industries, and regular labor strikes.
As for Canada, any economic freedom index depends on where one places the weightings, which can be a matter of preference. In Canada, patients wait in line for health care and have fewer treatment options. (A student of mine informs me that his father, who used to be a chiropractor located just south of the Canadian border, had many Canadian patients who would rather pay him cash than wait for a state doctor to see them.) Surely the higher taxes that support socialized medicine do not reflect individuals’ greater freedom to acquire and dispose of wealth as they see fit.
* * *
There are, moreover, no variables in these international indexes gauging federalism, which allows local governments to constrain central ones, or measuring judicial independence, which allows judges to constrain legislators. Some of the countries that Buckley praises for economic freedom, such as Canada and Australia, are federal, raising the possibility that parliamentary government may have little to do with their political virtues. More generally, regression and its many cousins show mere correlations. Causation can be safely inferred only if the research design is sufficiently rigorous, a criterion not met by assigning numbers to qualitative and even subjective variables, such as freedom. To dismantle and rebuild the government of one of the freest and most powerful countries in human history on the basis of such correlations would be rash, if not reckless.
There are other reasons to doubt that the evidence Buckley presents supports the conclusion he offers. First, even if comparative international studies had more or better variables, their claim to discern fine gradations of freedom would be hard to believe. Are there really significant, quantifiable differences in the levels of freedom in the United States, Great Britain, Canada, Switzerland, and the European Union nations, which can be isolated and traced reliably to their constitutional systems? Such comparative evidence as can be assessed qualitatively argues that America is more, not less free than countries with parliamentary systems. Libertarians should be the first to accept the market’s verdict: immigration patterns show that those seeking economic and political liberty still wait in longer lines to enter the United States than anywhere else, even to the point that many have crossed our borders illegally to come here.
A second problem with relying on empirical data is that arbitrary cutoff dates for studies can lead us to miss broader explanations. Relying on freedom indexes of the last four decades leaves out tectonic changes in the levels of American and European freedom. If the lens is broadened to a century, the United States has clearly experienced a steady improvement in its levels of freedom, in absolute and especially in relative terms. Compare the U.S. experience to the fate of liberty in Europe. During the last century, European and Asian nations have launched the most destructive wars in human history, killing millions of their own citizens. Regime changes empowered, and then discarded, monarchies, democracies, oligarchies, and tyrannies. In two world wars, it was up to the New World—allegedly sentenced by its separation of powers to a life of second-rate freedom—to save the Old. Without the United States, western European nations today might well be scoring at the bottom of freedom indices as provinces of the Kaiser’s empire, the Third Reich, or the Soviet Union.
* * *
Finally, relying on freedom indexes for the last four decades misses the unique global role of the United States. As I argue in Point of Attack: Preventive War, International Law, and Global Welfare (2014), the United States has secured global stability, a peaceful international order, and an open trading system for the last 70 years. This Pax Americana has sheltered and nurtured our parliamentary allies—several of whom were once our authoritarian enemies. If, by some measures, the U.S. experiences marginally lower levels of economic freedom, it may be due to the large military budgets that defeated fascism, contained the Soviet Union, and kept the peace among the great powers for the last seven decades. Because of the Pax Americana, the parliamentary democracies of Europe, East Asia, and Latin America need spend little on their military capabilities, which elevates their scores for economic freedom. We should all prefer this world to an alternative where the United States withdraws from global leadership and increases its economic freedom, but at the price of increasing disorder and abetting the rise of authoritarian challengers in Russia, China, and Iran.
In the end, F.H. Buckley’s claim that parliamentary systems are freer, and particularly that the United States would be better off jettisoning our separation of powers for the siren-song of a prime minister, is unconvincing. Our Founding Fathers saw much that was good in the English system of government and law, and they kept that which was best. We would be wise to keep our Constitution with its ability to check power with power, thereby avoiding the extremes of tyranny and anarchy. To borrow from Winston Churchill, the American presidential republic may be the worst form of government, except for all the other forms that have been tried.