In January the Heritage Foundation released its annual Index of Economic Freedom. The ranking did not reflect well upon the U.S. government: “The land of the free” once again found itself well down the list in terms of the most basic liberty, the right to earn a living. As Heritage explains, “Policies that promote freedom, whether through improvements in the rule of law, the promotion of competition and openness, or suitable restraints on the size and economic reach of government, turn out in practice to advance practical solutions to a wide range of economic and social challenges.” On the other hand, policies that don’t, don’t.
One might think that freer societies would also suffer from various social pathologies: in the absence of government interventions, surely the poor would suffer and minorities would lag. Yet the 11 countries above the U.S.A on the list include such notably prosperous ones as Switzerland, Canada, New Zealand, and Australia—none of which has the aforementioned pathologies in notably greater abundance than does America.
In short, freedom works. So why doesn’t the U.S. have more of it?
Comes George Mason School of Law’s F.H. Buckley with an answer: the United States Constitution. The federal charter, he argues in his bracing new book, is the main reason that America is notably less free than the other chief Anglophone former colonies of Britain. It is also the reason, he explains at length, why the trends all point not toward American convergence with freer countries but toward assimilation of the U.S. to the condition of other countries with presidential rather than parliamentary governments.
One might have thought that someone would write such a study sooner. After all, the obvious distinction between the American model of government and the ones further up the Heritage list—as well as other lists ranking governments by various measures of freedom—is that America’s federal Constitution established a presidential government, while freer countries tend to have parliamentary systems. To my knowledge, however, none did.
Perhaps this was due to Americans’ indoctrination in the idea that freedom came from the U.S. Constitution. I have several times publicly made the point that Americans were free before the Constitution and would be free without it, but even to contemplate these possibilities seems to be a capacity beaten out of us through our formal education. (Libertarians are apt to say “public-school education,” but it seems to me that the elite private universities are, if anything, even more prone to federal government fetishism than the public ones.)
Buckley is personally suited to the task in two ways: first, although he’s an American citizen, he also retains the Canadian citizenship into which he was born; and second, his is the type of personality that relishes the role of what Lino Graglia, recalling his own role at the William O. Douglas centennial celebration, once called “the skunk at the garden party.”
As Buckley has it, the Philadelphia Convention created a system in which, once George Washington left the scene, the Electoral College rarely if ever would cast a majority of its votes for the same candidate. Thus, the House of Representatives voting by state would select the president most of the time. America would have more or less a parliamentary system.
Yet this conclusion strikes me as wrong. A chief executive with a four-year term would not be as dependent upon Congress as a parliamentary system’s prime minister typically has been upon his majority. One might doubt that he’d be very responsive to it at all, particularly if George Washington’s example served as precedent for later presidents’ behavior.
Anyway, the system envisioned by the Founders quickly yielded to a democratic one under the impress of the unanticipated organization of nationwide parties, and so elections in the House of Representatives have been exceedingly rare. Even elections in which the popular vote and electoral vote diverge have been few. So, early on, the president became more prominent in the political system than many of the Constitution’s creators imagined.
Buckley points to increasing discretion in the executive branch and dwindling power in the legislative branch, and he forecasts that the problem will only grow worse. His book makes the same chief contention as Tom Woods and I did in Who Killed the Constitution?—that the reality of constitutional government is a thing of the past, though the idea of it retains enough purchase upon Americans’ sentiments to prevent any significant systemic reform. In other words, presidents will increasingly rule by diktat, administrative agencies will issue more numerous and more sweeping regulations, courts will legislate with even greater abandon, yet Constitution-loving Americans will insist that all would be well if only we returned to the Constitution.
I recently heard Buckley say in person what I noted on Sirius XM’s Mike Church Show at the time: that the 2008 and 2012 American presidential elections resembled those in a Third World country, say Argentina or Venezuela. Here we had large crowds chanting the Leader’s name, little kids in school being taught to sing songs about the Leader, grandiose statements from the Leader that “We are the change we’ve been waiting for” and now sea levels would stop rising, and star-struck followers proclaiming that now they would not have to pay their mortgages or car payments.
Since his 2012 reelection, the president has even gone so far as to issue edicts undoing statutes, followed by public statements that he has changed the law. Many Republicans, forgetful of their party’s behavior when last in control of the executive, have cast this as an entirely personal phenomenon. Buckley rightly points to the incapacity of the Constitution to prevent such things from happening. As public-choice economist James Buchanan argued, systems—not chiefly personalities—produce political outcomes over time.
Buckley devotes extensive attention to British and Canadian systems and events as well. One score on which he criticizes the American Constitution is that separation of powers leaves the president essentially unaccountable by comparison to prime ministers. If presidents were accountable, he thinks, we would have a different and better cut of leaders. One cannot imagine George W. Bush being chosen to represent Republicans from the PM’s seat during question time in the House of Commons day after day after day. One cannot imagine Bill Clinton remaining as PM very long when presented with relentless questions about the blue dress and what the meaning of “is” has to do with obstruction of justice time and time again. Surely Richard Nixon would have left office many months before he did in a parliamentary system. I suspect Lyndon Johnson would have too—unless, to the country’s great benefit, he had been prodded by question time to change his war policy.
All is not peaches and cream for parliamentary countries, however, Buckley concedes. Some recent developments that have pushed power into the American executive branch—technology, for one—have worked their black magic upon our Anglophone friends as well. Here, the ease with which a television network can establish a White House bureau to parrot the president’s daily press statement naturally distorts public perception of the Constitution, and over time the new perception becomes the new reality; in Canada, the PM’s rock-star status has undercut the role of the Cabinet to the point where not only backbenchers but even most ministers are essentially nonentities.
Still, a Canadian PM is not an American president. He does have to answer regularly and extemporaneously to the opposition. Also, he is not elected at large by voters from the Maritimes to Vancouver but instead stands for only one “riding.” He can’t plausibly claim to speak for all of Canada. Perhaps most significantly, it is Elizabeth II, not the PM, who is head of state. Thus, there is no patriotic imperative to “respect the office” of the PM, who is routinely an object of mockery. All of these distinctions help to explain, Buckley believes, America’s creeping progress toward elective dictatorship and Canada’s much better situation. Read the book, and learn much, much more.
Harvard’s Prof. Eric Nelson, for his part, takes up a rather different task: that of demonstrating that the American Revolution was intended by some of its most prominent leaders to establish government based on pre-Glorious Revolution English royalist principles in the United States. He also occasionally asserts that the American presidency was intended to have prerogative powers similar to those of the Stuart kings of pre-Glorious Revolution England.
Nelson performs the estimable work of proving that Alexander Hamilton, James Wilson, James Iredell, John Adams, and other leading Federalists were precisely as royalist in their political philosophy as Thomas Jefferson always insisted they were. (Nelson, sympathetic with the royalists, omits that he has vindicated Jefferson’s claims.)
What he does not do, however, is show that the Constitution was intended to confer prerogative powers upon the president. Part of the reason for his confusion seems to be his lack of familiarity with the Virginia republican revolutionary tradition of which Jefferson and James Madison—besides George Mason, Patrick Henry, Richard Bland, Landon Carter, and Mason’s brother Thomson—were representative. Far from the odd outlier Nelson wants to make him, Jefferson was in writing A Summary View of the Rights of British America and the draft Declaration of Independence entirely representative of them.
Jefferson’s screed was based on Bland’s idea of a natural right to emigrate. (Bland, seen by Jefferson and most scholars as a seminal figure, goes essentially unrecognized here.) Jefferson’s version of a federal British Empire is based, then, not upon 17th-century royalist claims of kings’ rights but upon a newfangled Virginian account of Virginia’s settlement. Virginians claimed that they had entered into their relationship with the Crown of their own free will. This is not a royalist argument at all, though Parliament’s advocates of the 1770s claimed that it was.
Nelson says that Madison was unusual among leading authors of the Constitution and advocates of ratification in having been a non-participant in the pamphlet wars of the “Imperial Crisis” that preceded the revolution. What he misses is what Madison actually was doing during those years, which was serving as the youngest member of the committee that drafted the first American constitution—the Virginia Constitution of 1776. That constitution, which was chiefly Mason’s handiwork, described the chief executive’s power thus: “A Governor … shall, with the advice of the Council of State, exercise the executive powers of government, according to the laws of the commonwealth; and shall not, under any pretence, exercise any power or prerogative, by virtue of any law, statute or custom of England. But he shall, with the advice of the Council of State, have the power of granting reprieves or pardons… .”
Note: the governor would have the executive powers, and he would not have prerogative powers. So, were prerogative powers among the executive powers? No, they were other powers that an executive might have claimed by reference to the English example if the constitution had not forbidden it.
Article II, Section 1 of the U.S. Constitution, the famous Vesting Clause, says, “The executive power shall be vested in a President of the United States of America.” How is one to decide what “the executive powers” are? One might take the gnostic approach of asking what was said in secret by the draftsmen among themselves and then kept from the people during the ratification contest. (Unfortunately, Buckley falls into this trap.) This method, rejected by Madison during ratification days and ever after, would fail the test set out by other prominent supporters of the Constitution during the ratification contest as well. They said that the meaning of the Constitution depended upon the people’s understanding of it during the Article VII process. (See George Nicholas’s speech at the end of the Virginia Convention and Madison in The Federalist, for example.) By that criterion, one could start with the many references in Virginia to “the executive power,” a phrase made familiar to them by their first constitution.
Professor Nelson’s book, then, is interesting for the light it throws upon honest-to-God monarchists among the Founding Fathers. But it cannot be trusted when it comes to the Constitution itself.
Kevin R.C. Gutzman is the author of James Madison and the Making of America.