The following article by Arthur Schlesinger, Jr., Pulitzer Prize winner and aide to Presidents Kennedy and Johnson, was published in 1982. But it is such a pithy defence of the U.S. Constitution’s separation of powers vis-à-vis the parliamentary model that it’s worth a read even today.
Schlesinger was responding to proposals made during the Constitution’s bicentennial by the Committee on the Constitutional System (CCS), a private effort led by Lloyd Cutler, aide to President Carter, and C. Douglas Dillon, undersecretary in the Eisenhower administration. The CCS had argued that the 1787 Constitution’s separation of powers “served us well in preventing tyranny and the abuse of high office, but it has done so by encouraging confrontation, indecision, and deadlock, and by diffusing accountability for the results.” The Committee didn’t propose any structural changes but advocated adopting a few parliamentary features.
– Bhanu DhamijaFollow @bhanudhamija
[Originally published in The Wall Street Journal on December 24, 1982]
Leave the Constitution Alone
By Arthur M. Schlesinger, Jr.
There is a revival of interest in fundamental constitutional change. I am not referring to special-interest amendments—proposals, for example, to permit school prayer or to forbid abortion or to require an annually balanced budget. I have in mind rather the rising feeling that we must take a hard fresh look at our government and determine whether its basic structure is adequate to the challenges of the future.
Those calling for such re-examination aren’t just academic theoreticians. They include distinguished public servants, persons with long and honorable government experiences, like Douglas Dillon and Lloyd Cutler. Without prejudging conclusions, they raise searching questions. In particular, they ask whether the separation of powers hasn’t become a crippling disability. The separation, they suggest, leads to legislative stalemate, increases voter frustration and apathy, invites the meddling of single interest groups and makes it impossible for any party or person to be held accountable for policy. The “question transcending all immediate issues,” Mr. Dillon writes, “is whether we can continue to afford the luxury of the separation of power in Washington” and whether we shouldn’t consider “a change to some form of parliamentary government that would eliminate or sharply reduce the present division of authority between the executive and legislative arms of government.”
These are certainly interesting questions. One wishes the new bicentennial Committee on the Constitutional System all luck in exploring them. They aren’t new questions. In the 1880s, for example, Sen. George Pendleton and Prof. Woodrow Wilson argued for movement toward a parliamentary system. After World War II Thomas K. Finletter in his closely reasoned book “Can Representative Government do the Job?”—still perhaps the best book on the subject—and Congressman Estes Kefauver proposed modifications of the Constitution in the parliamentary direction.
A Function of Weakness
The parliamentary system to be defined by a fusion rather than by a separation of powers. The executive is drawn from the legislative majority and can count on automatic enactment of its program. No one doubts where responsibility lies for success or failure. But while the parliamentary system formally assumes legislative supremacy, in fact it assures the almost unassailable dominance of the executive over the legislature.
Parliament’s superiority over Congress in delivering whatever the executive requests is a function of weakness, not of strength. The no-confidence vote is so drastic an alternative that in Britain, for example, it succeeds in forcing a new general election only two or three times a century.
Churchill made the point to Roosevelt in a wartime conversation. “You, Mr. President,” Churchill said, “are concerned to what extent you can act without the approval of Congress. You don’t worry about your cabinet. On the other hand, I never worry about Parliament, but I continuously have to consult and have the support of my cabinet.”
Thus the prime minister appoints people to office without worrying about parliamentary confirmation, concludes treaties without worrying about parliamentary ratification, declares war without worrying about parliamentary authorization, withholds information without worrying about parliamentary subpoenas, is relatively safe from parliamentary investigation and in many respects has inherited the authority that once belonged to absolute monarchy. As Lloyd George told a select committee in 1931, “Parliament has really no control over the executive; it is a pure fiction.” The situation has not improved in the half century since. Only the other day the Economist spoke of “Whitehall’s continuing contempt for Parliament.”
Congress is far more independent of the executive, far more responsive to a diversity of ideas, far better staffed, far more able to check, balance, challenge and investigate the executive government. Take Watergate as an example. The best judgment is that such executive malfeasance would not have been exposed under the British system. “Don’t think a Watergate couldn’t happen here,” writes Woodrow Wyatt, a former British MP. “You just wouldn’t hear about it.”
In a recent issue of the British magazine Encounter, Edward Pearce of the London Daily Telegraph agrees:
If only Mr. Nixon had had the blessing of the British system. … Woodward and Bernstein would have been drowned in the usual channels, a D-Notice would have been erected over their evidence, and a properly briefed judge, a figure of outstanding integrity, would have found the essential parts of tapes to be either not relevant or prejudicial to national security or both. The British system of protecting the authorities is almost part of the constitution.
While American constitutional reformers muse about the virtues of a fusion of powers, British reformers yearn for separation. They want to set Parliament free. They want to increase executive accountability. They want a written Bill of Rights. They have finally achieved standing parliamentary committees and want to increase the professional staffs and extend the powers of investigation and oversight. They want the right to examine witnesses in committee during the consideration of pending legislation. And the government, the Economist recently reported, “is faced with an all-party parliamentary coup aimed at seizing from the treasury the appointment and functions of the comptroller and auditor general, and restoring to the House of Commons power over many aspects of government spending.”
A former prime minister spoke to me a few months ago with envy about our mid-term elections. “The only means we have between general elections of bringing national opinion to bear on national policies,” he said, “is through by-elections, and this depends on a sufficiency of MPs resigning or dying. Luck has been with Mrs. Thatcher, and she has had far less than the average number of by-elections. How much better to give the whole country a chance to express itself every two years!”
Before succumbing to romantic myths of the parliamentary advantage, Americans would be well advised to listen to those who must live with the realities of the parliamentary order. But fortunately, given the nature of the American political tradition, the parliamentary system is an unreal alternative. The thought that in this era of conspicuous and probably irreversible party decay we can make our parties more commanding and cohesive than they have ever been is surely fantasy. Centralized and rigidly disciplined parties, the abolition of primaries, the intolerance of mavericks, the absence of free voting—all such things are against the looser genius of American politics.
One must raise a deeper question: Is the difficulty we encounter these days in meeting our problems really the consequence of defects in the structure of our government? After all, we have had the separation of powers from the beginning of the republic. This has not prevented competent presidents from acting with decision and dispatch. The separation of powers did not notably disable Jefferson or Jackson or Lincoln or Wilson or the Roosevelts. The most powerful plea of this century for a strong national authority—Herbert Croly’s The Promise of American Life—didn’t see the separation of powers as an obstacle to effective government. Why are things presumed to be so much worse today?
It cannot be that, nuclear weapons apart, we face tougher problems than our forefathers. Tougher problems than slavery? The Civil War? The Great Depression? World War II? Let us take care to avoid the fallacy of self-pity that leads every generation to suppose that it is particularly persecuted by history.
The real difference is that the presidents who operated the system successfully knew what they thought should be done—and were able to persuade Congress and the nation to give their remedies a try.
That possibility remains as open today as it ever was. In his first year as president, Mr. Reagan, who knew what he thought should be done, pushed a comprehensive economic program through Congress—and did so with triumphant success in spite of the fact that the program was manifestly incapable of achieving its contradictory objectives. He is in trouble now, not because of a failure of governmental structure, but because of the failure of the remedy. If his program had worked, he would be irresistible.
Our problem is not at all that we know what to do and are impeded from doing it by some structural logjam in the system. Our problem—let us face it—is that we do not know what to do. We are as analytically impotent before the problem of inflation, for example, as we were half a century ago before the problem of depression. Our leadership has failed to convince a durable majority that one or another course will do the job.
Majority Is Not Strong Enough
If we don’t know what ought to be done, efficient enactment of a poor program is a dubious accomplishment—as the experience of 1981 demonstrates. What is the great advantage of acting with decision and dispatch when you don’t know what you are doing?
The issues aren’t new. A century ago foreign visitors leveled the same criticism against our governmental structure. Lord Bryce in his great work, The American Commonwealth, reported the British view that the separation of powers, party indiscipline and the absence of party accountability made it almost impossible for the American political system to settle major national questions. He also reported the response to this criticism by American political leaders. Congress, they said, had not settled major national questions not because of defects in structure “but because the division of opinion in the country regarding them has been faithfully reflected in Congress. The majority has not been strong enough to get its way; and this has happened, not only because abundant opportunities for resistance arise from the methods of doing business, but still more because no distinct impulse of mandate towards any particular settlement of these questions has been received from the country. It is not for Congress to go faster than the people. When the country knows and speaks its mind, Congress will not fail to act.”
When the country is not sure what ought to be done, it may be that delay, debate and further consideration are not a bad idea. And if our leadership is sure what to do, it must in our democracy educate the rest—and that is not a bad idea either. An effective leader with a sensible policy, or even (as in the recent Reagan case) with a less than sensible policy, has the resources under the present Constitution to get his way.
I believe that in the main our Constitution has worked pretty well. It has ensured discussion when we have lacked consensus and has permitted action when a majority can be convinced that the action is right. It allowed Franklin Roosevelt, for example, to enact the New Deal but blocked him when he tried to pack the Supreme Court. The court bill couldn’t have failed if we had had a parliamentary system in 1937. In short, when the executive has a persuasive remedy, you don’t need basic constitutional change. When the executive remedy is not persuasive, you don’t want constitutional change.
My concern is that this agitation about constitutional reform is a form of escapism. Constitution-tinkering is a flight from the hard question, which is the search for remedy. Structure is an alibi for analytical failure. As Bryce wisely reminds us, “The student of institutions, as well as the lawyers, is apt to overrate the effect of mechanical contrivances in politics.”
Fascinating as constitutional-tinkering may be, like the Rubik cube, let it not divert us from the real task of statecraft. Let us never forget that politics is the high and serious art of solving substantive problems.
In A Rebuttal to Arthur Schlesinger, Jr., Cutler and Dillon mostly bowed to his arguments, writing, “In the end, the Committee might even come out where Mr. Schlesinger has already arrived.” Their Committee recommendations were never brought up for discussion in any official forum.
[Arthur Schlesinger Jr. served as a special assistant to Presidents Kennedy and Johnson, and taught for many years at Harvard. He also wrote studies of the presidencies of Andrew Jackson and Franklin D. Roosevelt, and The Imperial Presidency (1973).]