Calabresi on the Goodness of Federalism and Presidentialism in the U.S. Constitution

While many of us greatly value the United States Constitution, there are numerous critics of the Constitution including in the United States.  In particular, the critics argue that other countries should not attempt to emulate the U.S. Constitution.  Two features of the U.S. Constitution have been subject to scrutiny: its establishment of a federalist system and its use of a presidentialist executive.

Steve Calabresi has a new article out that ably defends the U.S. Constitution.  Calabresi acknowledges the problems with federalist and presidentialist systems, but argues that the U.S. Constitution avoids these problems with distinctive features that have not been employed by other countries that have adopted these systems.

Federalism.  The main problem with a system of federalism is that it can too easily lead to secessionist movements, as is illustrated in many places in the world today, including the UK and Canada.  Calabresi argues that two features of the U.S. constitutional system mitigate these problems.  The U.S. employs a large number of states and those states do not reflect cultural and political views.  By contrast, imagine the U.S. system if it had four states – the Northeast, the South, the Midwest, and the West.

Secessionist movements would be much stronger in the latter world for two reasons.  Under our current system, a bunch of states need to form together to establish a secessionist movement and that is more difficult with a large number of states.  Moreover, some of the states are mixed culturally and politically and that makes it less likely that the states will join or agree with the movement.  While the U.S. had a devastating secessionist movement leading to the Civil War, the fact that there were border states (and many of them did not secede) is one of the reasons the Union was preserved.

Presidentialism. The main problem with a presidentialist system is that it can devolve into a presidential dictatorship.  As Calabresi states, “the sad fact is that almost every other democracy in the world that sought to copy the U.S. presidential system has degenerated at some point or another into a presidential dictatorship.”  Sad, indeed.

But again the problem is that those countries “have rarely copied other critical features of our constitutional system that check and balance presidential power.”  Calabresi identifes four critical checks and balances.

First, “American presidents are elected for only a four-year term with a two-term limit, and midterm elections must be held two years into a four year presidency and again six years into an eight-year presidency.”  Those midterm elections constitute a critical check on a new president, as I argued in this piece.

Second, the American system has a strong congressional system of oversight. Congress has the subpoena power and the Senate can confirm or reject presidential appointments.

Third, American presidents cannot declare states of emergency or propose national referenda (unlike the Weimar Republic or the President of France).

Fourth, U.S. presidents are subject to judicial review by a life-tenured federal judiciary headed by the Supreme Court “whose members today serve an average of twenty-six years in office.”  The Supreme Court is “almost always dominated by the appointees of prior presidents that often belonged to the opposite political party from the incumbent president.”

The lesson that Calabresi teaches in this essential article is that it is not individual features of the system that are important, but the overall system and the checks and balances that it establishes.