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August 17, 2008
Separation of Powers and the Charismatic Presidency
I wrote this entry when our Separation of Powers episode originally aired. I'm moving it up to the top since that episode is about to air again. I welcome further discusssion. KT
Later this morning, our episode "Power out of Balance? Exploring the Separation of Powers" will air. This epsiode was recorded back in July [of 2006] on Capitol Hill in a tiny little room in the basement of the building. Though the audience was small, they were quite engaged and engaging. We were there at the invitation of Congresswoman Anna Eshoo. We are most grateful to Congresswoman Eshoo for being our sponsor and for participating in the program. Our main guest during the program was Kathleen Sullivan. Kathleen was a terrific guest. They say that if the Democrats get to make a Supreme Court appointment anytime soon, Kathleen is high on the list of potential nominees. I can see why. She is very smart, very articulate, and has really deep knowledge of constitutional law. It was a pleasure having her as our guest. I've invited her to guest blog on the topic of separation of powers. But since she is a very busy woman, who knows if she'll take up the invitation. Anyway, I hope you enjoy listening to the program.
In the remainder of this post, I'll ruminate, just a little bit, on what's become of the separation of powers in our time.
The founding fathers in their considerable wisdom took the separation of powers to be a "bulwark of liberty." Indeed, they took the concentration of power into a single agency to be the very definition of tyranny. Conversely, they apparently believed that not just the formal separation of powers among the branches of the federal government and between the federal and state governments, but also what might be called the subsantive seperation of political interests to which the formally separated branches are asnwerable, was the key to a government that was unlikely to ever devolve into tyranny. By formally dividing the powers of government among competing branches and among the several states and the federal government and by making the various branches and and levels of government answerable to society in different ways that reflect different and competing constellations of "parts, interests, and classes of citizens," Madison seemd to believe, the government would incapable of trampling the rights of the citizens. Moreover, no ad hoc constellation of citizens would be able to sieze the powers of government and deploy them against the fundamental civil liberties of the remainder of the citizenry.
It's a nice sounding story, but I think the founders vastly overestimated the degree to which the formal separation of powers, even when conjoined with a substantive separation of interests, might suffice, on its own, to guard against tyranny and to protect civil liberties. This isn't a startling new inisght, of course. Jefferson saw the limits of merely procedural safe-guards to liberty right away and rightly insisted that an enumerated Bill of Rights be added to the constitution.
The founders lacked prescience on two particular fronts that have come to define the American political scene and that jointly conspire to make the formal separation of powers far less of a bulwark against tyranny than they imagined. First, the founding fathers failed to anticipate what I'll call the charismatic nature of the Presidency. Second, they failed to anticipate the extent to which partisan loyalty would come to trump institutional loyalty within the legislature. Let's consider the second thing first. The founders seemed to believe that Congress would be extremely jealous of its perogatives and would strongly resist the encroachment of the executive upon its domain. To some extent that has been true over the course of our history but mostly, it seems, at least to my non-expert eye, that Congress mostly resists encroachment when different parties control the executive and the legislative branches. When a single party controls both the executive and the legislative, partisan loyalty seems almost always to trump institutional loyalty. The current Republican House and Senate have been almost suppine in their obedience to the will of the President.
Why should that be? The answer has, I think, to do with the charismatic nature of the presidency in a time of modern communications. I'm not talking about the personal charisma of the any particular president. Many occupants of that office, including the current occupant, seem to me to be seriously charisma challenged. Indeed, it's something of a mystery how such a charismatic office has managed to have so many charisma challenged occupants.
By calling the presidency -- the office, not the occupant -- charismatic, I'm thinking about the power of the president to set the national agenda, to command national attention. The president's formal powers aren't really all that great in comparison with Congress. But the charismatic reach of the presidency far outstrips the charismatic reach of Congess. It's not just that the president speaks with a single (if sometimes incoherent and conflicted voice), while the legislature is a cacophony of competing voices. It's also the focus of the national media on every word and gesture of the president compared to its fairly shallow and desultory focus on the Congress. And it's also the fact that we spend millions and millions on seemingly endless presidential campaigns that seem largely designed to manufacture of exploit competing personality cults rather than competing subsantive agendas for action.
If you're an obscure member of congress trying to rise to greater national prominence, it's pretty hard to compete with the charisma of the presidency merely in the name of safeguarding the perogatives of the legislature. After all, if you are a member of the president's party you probably want most of what the president wants. So why insists on the perogatives of the legislature?
On the other hand, if your a member of the opposition party -- whether in the minority or the majority -- you do have some rationale, often considerable rationale --- for resisting. But not really because you are jealous as such of the perogatives of your branch. It's rather because you have allegiance to the competing party. Still when we have divided government, we get at least the shadow of what the Founders were after, because then we have not just the formal separation of powers but also the substantive diversion of interests that is nicely aligned with the formal separation of powers.
Of course, I haven't touched on the subject of the Supreme Court. But Kathleen Sullivan has a great deal to say about the court and its role in maintaining a balance between the executive and the legislative branches. I won't try to summarize what she has to say here. Instead, I'll urge you to check out the show -- which is about to begin right now.
I'm going to tune in via KALW's website. You could do the same.
August 17, 2008 in Current Affairs, Episode Follow Up, Politics and Political Philosophy | Permalink
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I don't think the Founders failed on either front.
1. Washington -- the first President, rejected becoming King and self-limited his term of service. He was a Founder, and he set the example! The Ninth and Tenth Amendments, too, limit federal power (and thus the President) by leaving unenumerated rights to the people to decide in their state legislatures. And Article III prevents the President from firing the judges at-will and Congress from reducing their salaries if they dislike a decision (e.g., one limiting their powers). And the President must stand for national election -- far harder to do than to be elected to the Senate by a state legislature (under the un-amended Constitution), i.e., mere charisma won't do. So it simply isn't true that the Founders failed to understand an executive could be so charismatic that the people would be tempted to magnify his power. They specifically put in provisions that prevented the exercise of imperial power by a President!
2. Political parties mesh perfectly with the Founders' conception of faction. You seem to think that a party thinks with one hive mind and partisans all share one agenda. Not so. Each party is a coalition of various, vying factions, which is why each administration is different. Even successive administrations of the same party differ. Foreign parliamentary systems simply make express that coalition-building, in that each faction runs as its own party. But the various parties come together into a majority or minority coalition, much as our non-parliamentary system here has a majority or minority party. The difference here is that we have a winner-takes-all system, which respects small states and big states equally and keeps out fringe parties. The Naderites and the Greens and the Libertarians and the Marxists have no shot of getting into Congress (though they may spoil elections). The best shot they have is getting their most popular ideas stolen by one of the major parties. Which is good. It leads to the best ideas being a part of representative democracy, not the fringe ones. It mirrors our belief in self-governance and the market place of ideas. So what you see as partisanship is really just what the Founders described in Federalist Papers Nos. 10 and 51 and what they meant to include in the First Amendment by protecting our rights of association and to lobby.
Yet you find the political results of our system substantively flawed. Given the relative freedom American citizens have to run for office and your bully pulpit of a radio show and a tenured position at an elite academic institution, perhaps you should run for office. It might be the apathy of educated beneficiaries of American wealth -- and not the governmental structure constituted by our founding document -- that are the problem.
Posted by: Mr. Contrarian | Nov 10, 2006 6:30:18 PM
IS the problem, rather.
Should have used preview.
Posted by: Mr. Grammarian | Nov 10, 2006 6:39:39 PM
It seems that a lot of fuss is being raised over the absoluteness of seperation of powers, and the cases of its circumvention throughout our history and in modern times. While we do not argue that seperation of powers is in any way unnecessary, we do argue that even the founders did not believe in complete and total adherence to complete seperation of powers. A good example of this argument can be found directly in the constitution, in which the framers put in an obvious sort of tension as to the absolute power of the supreme court. Art.3 Sec.1 reads, "The judicial power of the United States, shall be vested in one Supreme Court...", indicating that the judicial power belongs to the courts, that it is the courts who will decide all cases of law arising under the US constitution. However, Art. 3 Sec. 2 reads, "...the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Hence, congress can create exceptions to cases heard by the supreme court in which the supreme court has appellate jurisdiction! In the same article, the judicial power of the US was vested exclusively to the courts! So it seems that there are some hidden cases of tension in which the founders gave us ways to bypass the complete seperation of powers. Hence, we believe that while it is not a good time to run around proclaiming the end of seperation of powers, it is a time to stop running around worrying about every time the seperation is breached. So far, nothing drastic has befallen the US due to some of these trends away from the ideal, and it is arguable that the founders themselves provisioned us for turns away from complete seperation.
This comment written by students of Mr. Koepping's AP Government class, circa 2006, period 8.
Posted by: Disciples of Hasty G | Nov 14, 2006 2:53:59 PM
The discussion starts with a debate of the separation of powers and what that entails. The inherently more interesting question, however, becomes what is the role of the president, specifically dealing with his role of “commander in chief”, and when does this power apply.
Even though the executive branch was the most thoroughly discussed issue during the constitutional convention, and one of the most vaguely explained articles, the powers of the president are not so cleanly enumerated as those of the judicial and legislative branches.
What did the framers intend to be the power of the president by labeling him the “commander in chief” of the armed forces? I feel that in this situation, the president has overstepped his rights as the commander of the armed forces on several occasions, which would be redundant to explain as they were clearly, and I feel accurately described in the point made by Ms. Kathleen Sullivan. As she put it, the executive right as “commander in chief” of the armed forces does not leave him in control of the nation, or in power to command the will of the people. It is evident in the constitution of the United States of America that the framers would not have upheld his decisions in recent affairs. The framers feared monarchy more than anything else and went to very drastic measures to ensure that our country was free from it.
In areas such as the wire tapping, where it is clearly an invasion of citizens rights, congress should have stepped in and put an immediate end to it. Due to “unhealthy partisanship”, however, the legislature allowed these unlawful to operations to continue. The members of congress feel more strongly bound to the views of the party, rather than the positions they hold and the responsibilities they have, not only to the American people, but are bound to by the American Constitution. Brilliant. If that does not show the grave danger to separation of power and checks and balances, nothing ever will.
A last warning on the state of nature: It's sort of like middle school, but they can kill you. Then where does that put an non-law-abiding national democracy? I dont remember stealing boyfriends and calling horrible names in Elementary school, and what could possibly be worse than junior high?!
Written by a member of Mr. Keopping's 7th period AP Government class at Lake Oswego High School
Posted by: Anti-Federalist #1 | Nov 14, 2006 8:18:38 PM
I would like to suggest an archetype for our constitution's separation of powers that comes from ancient Greek philosophy.
The Stoics divided philosophy into three areas: logic, physics, and ethics. Recall that for the Greeks, and especially for the Stoics, philosophy was considered to be a wisdom-practice, or what the historian Pierre Hadot calls a "spiritual practice." This meant that ideally philosophy was something to which one committed one's life, living the pursuit of wisdom -- sophia -- which one embodied in one's very being. So philosophy was a first-person endeavor, in which one applied oneself to living in a certain way, guided by one's love of wisdom. "To live in accordance with nature," as the Stoics put it.
From this first-person perspective, the three divisions of philosophy stand out as having special significance. The psyche or soul itself has a three-fold function. It functions as a faculty of knowledge, which correlates with logic and epistemology. It also functions as a faculty of efficient causation, which correlates with ethics. Finally, it functions as a faculty of final causation, because our action is purposive, and this correlates with physics and the study of nature. In brief, the idea was that the study of logic improved one's faculty of knowledge, the study of physics improved one's faculty of final cause, and the study of ethics improved one's faculty of efficient cause.
Now, our constitution's separation of powers, I suggest, correlates with this Stoic division of philosophy and with the three faculties of the psyche. The judiciary correlates with the psyche's faculty of knowledge and the study of logic. The legislative correlates with the psyche's faculty of final causation and the study of physics. The executive correlates with the psyche's faculty of efficient causation and the study of ethics.
If my suggestion is correct, then it directly follows that any conception of the executive as the faculty of final causation is simply false. This function falls to the legislative, NOT the executive. The legislative carries out this function of final causation by passing law. The executive carries out the function of efficient causation by putting the law into effect.
How does my suggestion relate to the problems of a charismatic president? For one thing, it provides us with a distinction between the charismatic president who carries out his/her proper function (i.e., efficient causation), and the charismatic president who fails to carry out his/her proper function, but instead attempts to carry out the function of a different branch of government. Charisma in itself is not a bad thing, so long as it is charisma within the bounds of a branch's domain. But when the charisma extends to usurping the functions of the other branches of government, we've got a problem.
Right now, our president appears to be usurping the functions of both the judiciary and the legislative. His refusal to seek judiciary permission for warrantless searches and surveillance, and his substitution of courts controlled by the judiciary by courts controlled by the executive (e.g. military courts) represent, I believe, serious usurpation of the function of the judiciary, which is to evaluate knowledge claims and judge whether or not they meet standards of evidence. And, his outright refusal to obey the law passed by Congress, but instead to claim that his alleged "war powers" allow him to cherry-pick which laws he obeys, represents a serious usurpation of the function of the legislative branch, which is to evaluate possible goals for government action and choose which to pursue.
What lies at the end of this potential slippery slope of executive usurpation of function? The consolidation of all three functions of government into one single omnipotent branch. And this seems to me to be as good a definition as any of tyranny.
I would flesh this argument out further, but I don't have the time or resources right now. So I'm just putting it out there for readers' interest.
Cheers,
-paul
Posted by: P. Hollander | Nov 22, 2006 5:27:02 PM
The link to KALW radio didn't work (for me at least). Luckily, Googling "KALW radio" worked just fine. Glad to see your show is still on the air.
Posted by: Paul Torek | Aug 17, 2008 9:38:51 AM
Ken's analysis of the intent of the constitution's framers derives from tyranny-prevention by checking executive power against legislative, and vice versa. In this it is seriously flawed, because, as he points out, the judiciary is left out, and the possible subject of potential tyranny is highly partial. It's well known, for example, that a main cause of the Revolutionary War was the level of prohibition by the Crown of colonial expropriation of native territory. In the final draft of the constitution, native inhabitants of expropriated land had to be included by the term "all others", in the provision in article 1 which insured landed control of the political process by afforded 3/5th's human-status to enslaved individuals for electoral purposes. So the goal of the framers is very far from tyranny prevention. Rather, as evidenced by subsequent events, the goal was, and in many respects continues to be, tyranny selectiveness.
Posted by: dan stodd | Aug 17, 2008 4:55:23 PM
Monotheism developed almost in contradistinction from the more usual polytheistic deities of ancient times. Perhaps it's the ulitmate political incorrectness to suggest that monarchies and then the U. S. presidency are corollaries of Monotheism. The U.S. presidencey is lately more and more defined in religious terms to such extent that in the most recent turn of political events, religious "values" have been made essentially the only qualification for presidency in what amounts to a mockery of any other qualifications.
Posted by: jack fuller | Aug 30, 2008 4:09:44 PM
I can see why. She is very smart, very articulate, and has really deep knowledge of constitutional law. It was a pleasure having her as our guest.
Posted by: high roller | Oct 18, 2008 11:33:35 AM
I think the key element here is that our Constitution is Newtonian in theory and Darwinian in practice. From the start, ours was meant to be something of a gravity-defying system of three independent spheres keeping each other up in the air. Much like the laws of physics, each Article carries a rather absolute view of their respective roles and given to a frustratingly inert movement of (radical) action. This is good for a democracy, but a threat to individual liberty as there are no explicit safeguards.
Enter Darwin and the Bill of Rights, and in particular the 14th Amendment to the Constitution. Through its prism we actually live and see our great text. Because the 14th Amendment makes it clear that all individuals born in the US shall not be deprived "of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," it preserves individual rights, and thus the civil rights of minorities. (Majority Rule and Minority Rights)
This makes for a Constitution that ultimately evolves over time as with our guaranteed protections come an expectation of prompt enforcement of civil rights (re: Brown v. Board of Education; Hearts of Atlanta Motel v. Katzenbach; Loving v. Virginia, etc. el). It stands to reason, I think, that our country went from Jim Crow to Barack Obama because of the evolutionary pattern from a Constitution ignoring civil liberties and rights to sweepingly enforcing them in a period of 1 century. Most nations can only dream of such transformation; ours--well, there is a reason we are the United States of America.
In the case of the 1950's, it was the Supreme Court that first recognized civil rights, but ultimately, the Executive and then the Legislature, took decisive up the cause from there, and the rest, as they say, is history. When in concert, the branches are a check, but they can also be a weather vain on where the country is on any given issue, sort of like a scout. I am not so Congress or a president ever likes to be ahead of any issue without political cover.
XXX
As to the role of the charismatic leader, I would strongly challenge the point, Dr. Taylor. George Washington was America's first action hero and the quintessential charismatic leader. He was, after all, offered the opportunity to be dictator-for-life, but squashed that idea in its tracks.
If you look at the Constitution, you will find that the president has only the power to nominate and the power to veto. Yes, he can negotiate treaties, but here, as with his nominations, he needs the approval of the US Senate. But what he has above all else is his bully pulpit, and as history has shown, a President can achieve quite a bit with such power (FDR, TR, JFK, Reagan, Clinton, and even [awkwardly] G.W. Bush).
Washington got what he wanted through his force of personality, and ever since, each president has set themselves in that tradition, most notably in the 19th Century, Andrew Jackson and Abraham Lincoln, and the 20th, TR, Wilson, FDR, JFK, LBJ, Reagan, and Clinton.
This century, I predict President Obama to follow suit. If his race speech is any hint, I think we're in for quite an impressive catalog of great words matched with an even stronger impact.
So, as with so much of the Congress, the Courts, the presidency has evolved into a far more meatier and stronger institution than perhaps (in part) the Framers had in mind, but to assume they did not have this in mind, is totally bogus. Americans then as now, want strength. They want a leader who is bold when necessary and cautious when possible. They want a monarch without the bloodlines, a dictator with grueling oversight, and a statesman reigned in by our rule of law.
Oddly, that sounds more like Thomas Hobbes than John Locke!
NS
Posted by: Neal | Nov 18, 2008 12:17:55 AM
Oh, and I almost forgot! If you think Congress has lacked courage to protect their prerogatives, you need only look to history. As recently as 3 years ago, President Bush's policy on social security collapsed despite his major reelection victory, and the expansion of the House and Senate. FDR overreached with the Court packing plan, and with it, his domestic agenda all but ceased. He would never again get any major New Deal programs through, or be as powerful until World War II. Congress--much like the Courts--are slow to act by its institutional nature, it is not meant to react to every presidential move, but to reign in the excesses of executive power. The same is true of any president today or yesterday--and tomorrow!
The office is not charismatic--objects cannot bring charisma, but the leader's persona. Few have had much impact that did not have charismatic integrity. Sorry, Dr. Taylor, but you're misguided to believe otherwise. The office was meant to create a mystique on which to govern. For some, it has worked but for most, it has failed.
I could go on, but I've proven my poli sci skills long enough. The show is great. Keep up the GREAT work!
NS
Posted by: Neal | Nov 18, 2008 12:32:44 AM
It seems to me that the founders – and even Montesquieu, the inventor of the separation of powers – lacked prescience not only on the charismatic nature of presidency and the wheight of partisan loyalty, but also of a third "big fact": the development of the "fifth power", that is television (after Orwell's fourth power: the press). Television coverage of Irak war has been the main way to convince people of the rightness of this war. Television, more than other media, may push in a direction or another depending on what people watch. The fifth power is overwhelming in driving people's attention and interest. In countries where media are directly owned by a politician the separation of powers itself seems to be in danger: in Italy the Prime Minister Silvio Berlusconi owns three main private channels and has a big influence on the other three public channels; in Thainland the Prime Minister Thaksin Shinawatra owned the main company of telecommunication, media and e-business, before being deposed in military coup in 2006. Probably internet connection had a big role in last US elections, and it may partly counter-balance the "big media" influence. But speaking of separation of powers should involve attention of the agenda given by the main television channels and to the abundance of "charismatic" figures which prompt everywhere as political leaders pushed from visual media (and not only the charismatic nature of the presidency).
Posted by: Carlo Penco | Nov 25, 2008 1:59:17 AM
