Rare is it to find an academic who tries to do justice to his university’s namesake. Imagine what Rockefeller, Carnegie, Stanford, and Vanderbilt, not to mention good old Harvard and Yale, would think about what goes on under their names. But law professor Frank Buckley, at least, attempts to carry forth the torch of George Mason in his provocative essay, American Exceptionalism.
Mason was a prominent Virginian politician who might be thought of as a libertarian today, though the eighteenth century did not think in such terms. His draft of Virginia’s first state constitution and its bill of rights, which declared that “all men are born equally free and independent,” made him famous in revolutionary America. A delegate to the 1787 Philadelphia Convention, Mason refused to sign the Constitution and returned home “with a fixed disposition to prevent the adoption of the plan if possible.” His pamphlet, “Objections to the Constitution,” published in October 1787, became one of the leading criticisms of the Constitution during the struggle over ratification.
Like Buckley, Mason feared that the Constitution would create a government that would begin as “a moderate aristocracy” and then became a monarchy or a “corrupt, tyrannical aristocracy.” But unlike Buckley, it was not the Presidency that Mason feared most. Rather, Mason believed that the Constitution’s threatened liberty by creating a Congress with broad powers, a Senate that violated the separation of powers, and no declaration of rights. The only problem with the executive branch, he observed, was its lack of a “constitutional council” to advise the President, which would prevent him from becoming the “tool” of “minions and favorites” or of the Senate. Mason criticized the Senate and Vice-President for “dangerously blending the executive and legislative powers.”
In other words, the ratification period’s greatest libertarian critic of the Constitution believed that the President should be more independent, not less. Buckley shares Mason’s starting and ending points – that a defective Constitution threatens American liberty – but disagrees on the path. The modern libertarian and noted law-and-economist instead believes that the Constitution’s fault rests in the Presidency. Put briefly, Buckley believes that President enjoys so much more prestige and popular support than a prime minister that it he or she can expand executive power, escape accountability, and act unilaterally during periods of government deadlock. Buckley supports his thesis by arguing that Freedom House data from 1972-2010 consistently show that parliamentary governments outperform presidential systems on the index of political liberty (while I could not find Buckley’s empirical study on his website, I don’t doubt that he is right).
Buckley’s argument comes as a surprise to me, and no doubt would have to Mason as well. I take Mason’s argument to be that too much cooperation between the executive and legislative branches leads to less liberty. Under a Westminster system of parliamentary government, nothing stands in the way of the will of the majority. Pure democracy, it seems to me, can threaten freedom more than a republican democracy that divides power. A parliamentary majority can reduce liberty as it likes as long as it can survive a no-confidence vote and make it to the next election. Both Great Britain and the United States today may both win “free” ratings from Freedom House now, with the very highest 1 (out of 7, with 1 being the best and 7 the worst) scores for “political rights” and “civil liberties.” But did the parliamentary system produce a similar level of freedom in pre-Thatcher Great Britain, with its government-controlled BBC television and radio stations, nationalized steel and coal industries, and regular labor strikes? Without a separate executive branch wielding a veto, a legislature can not only change property rights or political liberty as it likes, but it can do so quickly.
The better libertarian course, it seems to me, is Mason’s. This idea, of course, was not unique to Mason. “When the legislative and executive powers are united in the same person, or in the same body of magistrates,” Montesquieu famously wrote in The Spirit of the Laws, “there can be no liberty.” Separating the executive and legislative power, and generally placing obstacles before the government’s ability to act, will better protect liberty by reducing the scope of public action. A simple legislative majority cannot quickly reduce liberty, or even act at all, without the concurrence of an independent branch of government elected in a separate manner at a different time. By internally hamstringing government, civil society will flourish in the absence of regulation. And even when legislation passes, it will result from long deliberation and effort that is more likely to balance costs and benefits properly and protect minority rights.
It seems to me that this relationship between the separation of powers and liberty is borne out by American constitutional history. There has never been a socialist or communist party in the United States (we can all agree that these parties would be the greatest threat to liberty), unlike many of the western nations that might temporarily outscore us on the Freedom House index. Louis Hartz argued that these parties failed here but not in Europe, even though the West went through industrialization at about the same time, because the Constitution’s separation of powers made it too difficult for radical social movements to change the American economic and political systems instantly. Whatever its success or failures in other countries, the American presidential system, by which Buckley must also mean the American separation of powers, has succeeded in the United States in preventing the extreme economic and political radicalism that has so beset and almost ruined countries in the rest of the world.
Take the opposite case too. Suppose that the Framers’ Constitution initially created a period of great political and economic liberty. Today, it is fair to say that the great growth of Congress’s regulatory powers, its delegation to independent agencies, and sweeping income redistribution programs present the greatest attack on libertarian values. These changes in the Constitution did not occur during periods of strong conflict between an independent President and Congress. Rather, they arose during periods when the United States most closely approximated the political merger of the executive and legislative that characterizes parliamentary democracies. Franklin Roosevelt not only won the Presidency, his party won two-thirds majorities in both the House and Senate in the 1936 elections. Lyndon Johnson won election in 1964 with similar majorities at his back. Both Presidents proceeded to cooperate with legislatures because political parties, as President Thomas Jefferson first discovered and as Woodrow Wilson urged in his scholarly work, can overcome the natural antagonism built into the separation of powers. What you have when Presidents and large congressional majorities come from the same political parties is the parliamentary system, and it is that system – when it occurs on U.S. soil – that has bred the worst outcomes for liberty.
As a side note, these examples from American constitutional history raise doubts about the use of statistics to measure political phenomena, such as the Freedom House surveys. We cannot fault Buckley for relying on them, because there is scarcely anything to use when measuring a society’s level of freedom. But there are problems of measurement, both marginally and over time. For example, is there any real difference today between the levels of political and civil freedom in the United States, Great Britain, Canada, Switzerland, the EU nations, and so on, upon which claims of constitutional significance should be made? I would guess not, and if anything, a libertarian might well say he or she would vastly prefer to live in the United States than many of these other countries, with their hate speech codes and multicultural political correctness, redistribution of income and high tax rates, and socialist economic policies. Libertarians should believe in letting the markets decide – where do people with the freedom to travel go in the world? I would bet that the answer is still the United States and not the European parliamentary democracies.
Measuring only the last thirty years also leaves out huge changes in political and civil liberty in these countries when compared to the United States. For the last 100 years and more, the United States has wallowed imperfectly yet complacently in its presidential system. During that same period of time, the nations of Europe and East Asia have swung wildly between monarchy, democracy, fascism, communism, and socialism. They have engaged in wars that have killed tens of millions of Europeans and Asians and have imposed ruinous economic systems that have impoverished many more. Indeed, if it were not for the United States and its awkward separation of powers, many of these countries would be scoring a 7 out of 7 on the Freedom House index right now. If we averaged out the level of political and civil liberty for these countries over the last 100 years, I suspect that the U.S. would come out light-years ahead of its parliamentary competitors.
The scores might also ignore the vastly different geopolitical roles played by the United States and the other parliamentary democracies. As I have argued in some of my work on global stability, the United States has taken upon itself to provide the public goods of security and free trade. Maintaining the military forces that stopped fascism and communism and now currently maintain peace among the great powers comes at a cost to the United States. Keeping open the sea and air lanes of global commerce and even reducing its own barriers to enhance international trade also comes at a cost. The parliamentary democracies of Europe, East Asia, and Latin America all benefit from the U.S.’s security and free trade areas without having to contribute much, if anything, to the expenses. Their savings may well allow them to afford higher levels of liberty while the United States may have to accept a marginally lower level to guarantee it. Libertarians, again, should prefer this world to the alternative.
This is not to say that a presidential system of constitutional government will work for everyone, everywhere. As those familiar with the literature on political development know, Buckley is surely correct in describing the fate of presidential systems in Latin America and Asia. Presidencies there can lend themselves to authoritarianism because of the dynamic that Buckley describes: the separation of power can induce government paralysis when immediate economic and social reform is needed; the people demand change, and executives take advantage of the instability to seize power. These presidents then have something like popular legitimacy behind them, at least at first, before they turn their rule into a dictatorship – a sort of fall of the Roman Republic for the twenty-first century.
But, as Buckley reminds us in the title to his essay, America is Exceptional. For all of its good or ills when transplanted abroad, the presidential system has never produced this cycle of instability and authoritarianism in the United States. This record should not convince us to abandon the American Presidency, whatever the disagreements are that we may have with a current office-holder. Both conservatives and libertarians should view any proposals for radical reform in government with a jaundiced eye. Rather, we should ask what is the exceptional in America that has allowed a system to succeed here that fails elsewhere.