Madison, the Philadelphia Convention, and Presidentialism
The US came a lot closer to something resembling a parliamentary system than most people think.
I could likely write a book* about the topic of Doug Mataconis’ post from this afternoon (Would America Be Better Off With A Parliamentary Government?), so containing the multiple thoughts running through my head at the moment so that I go one post at a time is something of a challenge at the moment. I know that I could teach a class about it, since what I am about to write is actually the topic of one of my lectures for Monday, so I can treat this blog post as lecture prep (hooray for multitasking!).
There is a lot in Doug’s post (and the debate that Zakaria and others started) that I could comment upon, but let me focus on one sentence:
Our current problems aren’t James Madison’s fault, they are ours alone.
The reference to James Madison especially caught my eye (and I certainly understand why Doug references the Father of the Constitution) but the overall theme of the piece is very much steeped in the notion of the intent of the Framers regarding our institutions. This leads my mind to some interesting facts about the Convention and that fact that separation of powers and presidentialism as we currently understand it were not the plan going into Philadelphia.
It is true that James Madison wrote in Federalist 51 an impressive account of the workings of separation of powers and checks and balances. It is sufficiently brilliant that it transcends its role as a political commercial to become a key piece of political theory. However, I think we frequently forget that the Federalist Papers were originally persuasive essays written after the convention was done with its work, so obviously they make it sound as if a master plan was deployed in Philadelphia. Indeed, if Madison had gotten his way, we would have a different structure to our national government than we currently have because Madison’s original plan for the constitution did not contain full separation of powers, it had fusion of powers.** By fusion of powers in this case I mean that the executive would derive from the legislature (as in the case in parliamentary systems).
The really interesting thing is that we end up with arguments about, as Madison put it, “ambition countering ambition” in the context of separated powers and checks and balances after the pieces were designed. In other words, the more grandiose theoretical explanations for how the system would work were largely ex post facto reasonsing rather than the starting spot that lead to the institutional design we currently see. As such, I would argue that the following from Doug is a bit too cut and dry (although it is a common narrative):
While the Founders recognized the fact that the Articles of Confederation were simply impractical for governing even a small nation located on the eastern coast of North America, they also recognized the dangers of centralized power. That’s why they created a system where three co-equal branches of government are, if things operate as intended, supposed to check each others power, where the states act as checks on the power of the Federal Government, and where the people act as checks on both. It’s an imperfect system, because it was designed by imperfect men for imperfect people, but what Zakaria is really criticizing, it seems, is that the system is actually working the way it was intended to.
A side note that will require another post to explain, separation of powers is not an institutional feature linked to “the dangers of centralized power”–an issue more linked to federalism than the design of executive-legislative relations. For example Australia, Canada, and Germany all have very federal systems but also have parliamentarism. In other words: you can have federalism and parliamentarism. (I do agree with Doug that the system is operating mostly as designed, although I think that one can legitimately criticize a system even if it is working as it is supposed to work).
Back to the question of legislative-executive design and Madison, a quick trip to the archives takes us to the Virginia Plan (written by Madison in advance of the Philadelphia convention in 1787 and formerly submitted by Edmund Randolph on his behalf to the convention on May 29, 1787). In that plan, Madison proposed the following:
7. Resd that a National Executive be instituted; to be chosen by the National Legislature for the term of years…
Here we see that executive being chosen by the legislature (a legislature, by the way, where the Senate was chosen by the House, but that’s another discussion). Indeed, of the four major plans (i.e., basic outlines for the basis for debate for a replacement for the Article of Confederation) three had a similar provision to have the executive chosen by the legislature. The four plans were the aforementioned Virginia Plan, the New Jersey Plan (the oft-discussed small state alternative to the Virginia Plan), the Pickney Plan, and the Hamilton Plan.
Here’s the NJ Plan language:
4. Resd that the U. States in Congs be authorized to elect a federal Executive to consist of persons…
And here’s the Pickney Plan language:
5. The Senate and H. D. shall by joint Ballot annually chuse the Presidt U. S. from among themselves or the People at large.-In the Presdt the executive authority of the U. S. shall be vested.- His Powers and Duties-He shall have a Right to advise with the Heads of the different Departments as his Council
(H.D. = “House of Delegates” or the lower house).
Two quick sidenotes: the NJ Plan would have created a committee to play the role of chief executive, and Hamilton’s version would have created an elected executive for life called the Governor.
Had we gone in the direction of any of the three plans that vested selection of the executive in the legislature, it is possible*** that the US system would have evolved more along the lines of parliamentarism as opposed to the presidential system that was originally created. At a minimum, such provisions would have created executives less independent of the legislature than evolved under a system in which the executive was selected wholly apart from the legislature. An interesting side note, in fact, was that even under the constitution as passed, there was an assumption that the House of Representatives would normally choose the president because it was thought it would be commonplace for the electoral college to fail to produce a winner with an absolute majority of electoral votes.
There are other issues apart from who selected the executive, including the issue of removal, fixed terms, veto powers and so forth that also play into the question of how separate or how fused the executive and legislative powers are. And indeed, such issues may have arisen if the conventioneers had not decided (fairly late in the process) to go with the president being selected by the electoral college.
Indeed, if one reads the Notes on the Debates in the Federal Convention one find that a great deal of the discussion was about the legislature, with a lot less time being devoted to the presidency. This is reflected both in the amount of time the conventioneers spent on the shape and scope of the legislature, but in the fact that Article I of the constitution (about the Congress) is much longer and more detailed than is Article II (about the presidency). Certainly Madison was far more focused on the legislature than he was on the executive.
One of things about all of this that is noteworthy is that this cuts deeply into the narrative (indeed, the myth) of the Philadelphia Convention being the result of clear design that sprung forth fully developed from the collective genius of the Framers. Yes, there was some genius going on, but it was, at least in part, the genius of political compromise as much as it was master planning. It further demonstrates that understanding of the current political system is not simply an issue of looking back of what was “intended” by the Framers.
A topic I find especially interesting is that we, as a country, rarely even talk about issues of institution reform. Our default position is that our institutions are keen and therefore suggestion to change them are treated almost immediately as crazy talk.
I will set aside the issue of my preferences on the topic (I am actually a bit ambivalent and I also know that the odds of such changes are so close to zero as to render the discussion moot save for the intellectual exercise of it all). Certainly none of the above should be construed as an argument for parliamentarism. Mostly, I just find it all rather interesting. I would, however, very much welcome a national dialog on institutional issues.
*I feel this way because I am actually currently getting close to finishing a co-authored text that falls in this general topic area of institutional design in democracy. Specific news will be shared when warranted.
**Madison’s view on functional republican government (what we would call “representative democracy” going into the convention was a system of factional balancing in a large country (see Federalist 10, which was a rework of some of his pre-convention work that does not mentioned separation of power nor checks and balances—it makes for an interesting contrast to Fed 51 noted above).
***This is, of course, a counterfactual. The main point being, however, that choices about institutional design do have long term consequences for the way a system works. Further, the choices about design at the convention influenced subsequent choices.