Is The Constitution What’s Wrong With America?

The Atlantic’s Yoni Appelbaum makes the provocative case that what ails the United States’ political system is the very document it is founded upon. Put another way, the problem with America today is not that it has deviated from the Constitution, but on the contrary, its politicians and citizens remain too true and reverential to it.

This is idea is drawn from The Royalist Revolution: Monarchy and the American Founding, a 2014 book written by Harvard political theorist Eric Nelson. The argument begins by tracing the roots and sentiments of the American Revolution to Britain’s own historical debate about executive versus legislative power. It is a long excerpt, but it is well worth reading, since this is an often-overlooked context and influence for the Patriots. 

What if this gridlock is not the result of abandoning the Constitution, but the product of flaws inherent in its design?

The history recounted in a recent book on the Constitution’s origins, by Eric Nelson, a political theorist at Harvard, raises that disturbing possibility. In The Royalist Revolution, Nelson argues that the standard narrative of the American Revolution—overthrowing a tyrannical king and replacing him with a representative democracy—is mistaken. Many leaders of the patriot cause actually wanted George III to intervene in their disputes with parliament, to veto the bills it passed, even to assert that he alone had the right to govern the American colonies. In short, they wanted him to rule like a king. When he declined, they revolted.

As they framed their appeals to the king, Nelson demonstrates, the patriots reached back to the debate leading up to the English civil wars. In the 1620s, the Stuart monarch Charles I feuded with his parliament, which feared that he would usurp its authority to approve taxes, and reign as an absolute monarch. Both sides claimed to be working for the common good. The parliamentarians insisted that only a legislature—a miniature version of the people as a whole—could represent the people’s interests. Royalists responded that legislators were mere creatures of their constituencies, bound to cater to voters’ whims instead of tending to the kingdom’s needs. Only a monarch, they argued, could counterbalance legislative parochialism and look to the long term.

Charles required revenues, but parliament was determined not to authorize taxes on his terms. So from 1629 to 1640, he ruled without calling parliament into session, scraping together funds by reviving moribund fines and fees, and creatively reinterpreting his royal prerogatives. The deadlock led to a series of civil wars from 1642 to 1651, to Charles’s execution, and to the ultimate triumph of parliament, which absorbed almost all executive authority, leaving England’s monarchs to reign in name alone.

While the wars raged, the early settlers of New England sided squarely with parliament, decrying monarchical tyranny and celebrating its replacement by parliamentary democracy. A century later, however, many of their descendants were nostalgic for Stuart royalism. By the 1760s, parliament was imposing taxes on the colonists without their consent. Patriot leaders like John Adams expressed longing for George III to restrain the legislative tyranny of parliament.

Considering that in the early stages of the revolution, even many Patriots still regarded themselves as willing British subjects merely in dispute with their sovereign — not including the 20-30 percent of colonials who were outright loyalists — it makes sense that this then-recent development in British political culture would continue to impact its subjects across the Atlantic… even once independence was attained.

Once the war was over, Nelson shows, many of the patriot leaders who had previously argued for royal prerogatives proceeded to push for an executive empowered to do what George III would not. At the Constitutional Convention, the Pennsylvania delegate James Wilson stepped forward and moved “that the Executive consist of a single person”. This was a loaded phrase with which to introduce a controversial idea: When, in 1649, shortly after executing Charles I, parliament abolished the monarchy, it famously declared, “The office of a King … shall not henceforth … be exercised by any one single person.” Wilson was not just proposing that the United States have a president. He was attempting, in the horrified view of the Virginia delegate Edmund Randolph, to insert into the Constitution “the foetus of monarchy.”

Wilson and Randolph, and their respective allies in Philadelphia, revived the old debate between the royalists and the parliamentarians: Which posed the greater threat, legislative tyranny or monarchy? Had America revolted against a king, or against his parliament? In the end, Nelson argues persuasively, the royalists won.

In this telling, the Constitution created not a radical democracy, but a very traditional mixed monarchy. At its head stood a king—an uncrowned one called a president—with sweeping powers, whose steadying hand would hopefully check the factionalism of the Congress. The two houses of the legislature, elected by the people, would make laws, but the president—whom the Founders regarded as a third branch of the legislature—could veto them. He could also appoint his own Cabinet, command the Army, and make treaties.

The Convention placed limits on the president’s powers, to be sure: Some of his actions would be contingent on approval by the Senate, or subject to overrides. But these hedges on presidential authority did not make the office a creature of Congress. Having defeated the armies of George III, the Framers seized upon a most unlikely model for their nascent democracy—the very Stuart monarchy whose catastrophic failure had produced the parliamentary system—and proceeded to install an executive whose authority King George could only envy.

Many republic-loving Americans will no doubt chaff against the assertion that the U.S. was basically founded on a milder version of British monarchy (which itself was fairly tame by European standards). But the goal for a freer society was always one of evolution rather than revolution; in the beginning, only propertied white males enjoyed the voting franchise, and Senators, the more powerful figures in the U.S. Congress, were appointed by state legislators rather than directly elected. Only gradually, through cultural and political shifts and even a bloody civil war, did the United States begin to accrue the hallmarks of a truly democratic and free society for all members (and even now, it remains a work in progress, as in every human society).

In any case, this account of the American Revolution as an otherwise small step above liberal monarchy is buttressed by another troubling observation: that the presidential-republican system pioneered by the U.S., and adopted by only a handful of mostly Latin American states, is at the center of the Constitution’s weakness.

When, in 1985, a Yale political scientist named Juan Linz compared the records of presidential and parliamentary democracies, the results were decisive. Not every parliamentary system endured, but hardly any presidential ones proved stable. “The only presidential democracy with a long history of constitutional continuity is the United States”, Linz wrote in 1990. This is quite an uncomfortable form of American exceptionalism.

Linz’s findings suggest that presidential systems suffer from a large, potentially fatal flaw. In parliamentary systems, governmental deadlock is relatively rare; when prime ministers can no longer command legislative support, the impasse is generally resolved by new elections. In presidential systems, however, contending parties must eventually strike a deal. Except sometimes, they don’t. Latin America’s presidential democracies have tended to oscillate between authoritarianism and dysfunction…

…Even if we discount the failures of other presidential democracies, though, we should not dismiss the fact that the U.S. Constitution was modeled on a system that collapsed into civil war, and that it is inherently fragile. “This is a system that requires a particular set of political norms”, Eric Nelson told me, “and it can be very dangerous and dysfunctional where those norms are not present” Once those norms have been discarded, the president or either house of Congress can simply go on strike, refusing to fulfill their responsibilities. Nothing can compel them to act.

Perhaps more provocative than the idea that the Constitution is inherently flawed, is the notion that the presidential system that is its core precept is ill-suited to a stable democracy. Most countries with presidentials systems got around any formal checks and balances through military coups or political subterfuge; it is a testament to the strength of American political and civic culture that the U.S. military has never even been rhetorically invoked as a political tool.

The fact that the U.S. has managed to endure fairly steadily through the challenges of history and its own flawed founding (again, minus a bloody civil war) is also owed to the collective appreciation among citizens and leaders of the same civic values: liberty, republican governance, freedom of expression and assembly, and faith in the system’s ability to work itself out of any kinks. Indeed, these shared principles are not just the basis for American nationhood, but were intentionally imbued into the Constitution from the start.

The Framers do not seem to have understood this particular flaw of mixed monarchy. But then, neither did they express absolute faith in their own wisdom. “They were incredibly conscious of the fragility of what they were creating”, Nelson says, “that it depends on forbearance”. The Constitution was an experiment, and its signers believed that its success was contingent on the willingness of varied constituencies to work together.

So maybe reverence of the Constitution is not so bad after all? Perhaps the foundational republican values that are flawed in practice are more than compensated for by their influence in principle; e.g., that the spirit of the Constitution as it is understood and respected by the masses and their elected officials is what keeps heads cool and the system perserverent.

But even this seemingly noble approach can be too much of a good thing, as the article’s closing argument suggests.

When politicians today praise America’s system of checks and balances, they seem to understand it as a self-correcting mechanism: When one branch pushes too hard, the other branches must push back, preserving equilibrium. That understanding actually encourages politicians to overreact, in the belief that they are playing a vital constitutional role. It also encourages complacency, because a system that rights itself requires no painful compromises to preserve.

Neither Congress nor the president has the capacity to govern alone, but either can refuse to compromise, and prevent the other from governing. If the system is thought to be indestructible, the temptation to take stands becomes overwhelming. Filibusters, shutdowns, and executive orders multiply. The veneration of the Constitution becomes its undoing.

This is the paradox of America’s mixed monarchy, a system that operates best when politicians and the public remain skeptical of its ability to operate at all. Blind faith in the wisdom of the Constitution, and in its capacity to withstand the poor behavior of politicians, will eventually destroy it.

Is it time for Americans to move past their 18th century document and overhaul their political system? Even if one agrees that it is a dated document ill-suited for the challenges and developments of the 21st century, how do we go about such a radical change? I am not sure what to make of this argument, but I am even less certain that ever-polarized and plutocratic American is able to peacefully and effectively reform its conservative-by-design political system.

What are your thoughts?

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