30 March 2017

The Evolving American Constitution: Change Without Amendment

Might the United States be headed for significant constitutional change without formal amendment of the document we know as the Constitution?

One of the key features of the modern constitutional document is the amendment process, which is found in Article V of the US Constitution and in Part V of Canada's Constitution Act, 1982. Yet even without formal amendment, constitutions continue to develop, often simply through change in usage. In the Westminster tradition, the unwritten principles which govern a political system are known as conventions of the constitution, enduring for long periods of time and perhaps falling into desuetude when no longer deemed appropriate. In this way, the strong Tudor and inept Stuart monarchies gradually developed into constitutional monarchy, then parliamentary government, Cabinet government and, eventually, something approaching prime ministerial government. These are not insignificant changes in the ancient English constitution, yet the fundamental institutions have remained the same over many centuries, prompting Samuel Finer to call Great Britain's constitution “a democratic one, but poured into a medieval mold.”

Ironically, it was the American victory in the war for independence that led to the effective transfer of executive power from the king to the prime minister. But it was an even earlier event—a scandal, actually—that had led to the establishment of the office of prime minister itself half a century before.

Sir Robert Walpole, the first Prime Minister
King George I was the first of the Hanoverian monarchs called upon to rule, not only his German territories, but the two Kingdoms of Great Britain and Ireland, beginning in 1714 on the death of Queen Anne, the last of the Stuarts. Three factors prevented King George being a hands-on king. First, he was absent from Great Britain for about a fifth of his reign, preoccupied with matters in his Electorate of Hanover. Second, his mother tongue was German, and he spoke very little English, rarely meeting with his ministers, thus setting a binding precedent to be followed by later monarchs and their representatives. Third, his reign was plagued by scandal, politically incapacitating him and further empowering his advisers. In a 300-year-old precursor to the crashes of 1929 and 2008, the South Sea Bubble of 1720 impoverished many investors, implicating the King in this imaginative scheme connected to the trans-Atlantic slave trade. Thus discredited, George had to rely increasingly on his ministers, including one Robert Walpole, who became thereby the first prime minister, a post that came into existence almost by accident.

What we now know as the Westminster constitution, famously described by Walter Bagehot in The English Constitution (1867), was never planned. There were no founding fathers, no constitutional engineers weighing alternative political arrangements appropriate to the times. There was no Virginia Plan, New Jersey Plan or Connecticut Compromise. Political leaders simply adjusted their actions to changing circumstances within longstanding institutions. Canadian John Farthing aptly described the Westminster tradition in these words:
Our constitutional inheritance was the living product of a long process of historical growth and development, and the tradition it embodied is of an order already proven of value in dealing with changing conditions of life and with changing climates of opinion.
For Farthing, Americans tied their Constitution “to the ideas and mental climate of the eighteenth century,” while the unwritten British constitution, because it is constantly evolving, “is in no way bound to or fettered by any historical epoch.” Farthing was the son of an Anglican bishop, and it was easy for Christians to defend the British constitution as the happy result of the workings of divine Providence.

We all know, of course, that the Constitution of the United States was the product of hard-fought negotiations in Philadelphia during the summer of 1787. Or was it? Yes, the basic institutions were established then, but their subsequent functioning has been just as subject to the vagaries of history as the British and Canadian constitutions. This suggests that there is a larger unwritten American constitution whose principles are not easily captured in a single document but are based on a general respect for the rule of law. Until 1940, the two-term presidency was one such unwritten convention, established as a precedent by George Washington in 1797 and later codified in the Twenty-Second Amendment (1951).

Judicial review is another convention. Unmentioned in the text of the Constitution, the justices of the Supreme Court simply asserted it in Marbury v. Madison (1803), and no one bothered to stop them. The congressional power to declare war, enshrined in Article I, section 8, may be said to have become by convention a dead letter simply because it has not been invoked for three quarters of a century. And finally, the constantly changing relationships between federal and state governments on the one hand and between President and Congress on the other have developed in ways parallel to the shifting relationship between King and Parliament across the pond. Yet no formal amendment has wrought these profound changes. In other words, there is a case to be made that British and American constitutions are not that different after all.

A young Woodrow Wilson
F. H. Buckley has recently argued that the American founders originally desired, not so much a separation of powers, as congressional government, with a president dependent for his position on Congress, and not on the electorate. A century after the American founding, Woodrow Wilson, the only academic political scientist to become president, believed that the US was moving along the path pioneered by Westminster and expressed this view in his Congressional Government (1885). With a series of weak presidents following the Civil War, effective political power had passed to congressional leadership, with the Speaker of the House of Representatives, if not exactly becoming a de facto prime minister, nevertheless taking on an increasingly central role.

Present circumstances could see many of the founders and Wilson finally getting their way. As the current occupant of the White House is widely regarded as less than fully competent, and with many observers seriously questioning his ability to govern, effective political power could shift back to Congress, with congressional leaders increasingly taking the reins of government. This would require no formal amendment to the Constitution, yet the constitution in the broader unwritten sense is flexible enough to accommodate such a possibility.

Would this be a good or bad thing? Having lived in Canada for over three decades, I understand and appreciate the advantages of separating the offices of head of state and head of government, of forcing a government to defend its policies before the people's representatives on a daily basis, and of ensuring the easy removal of a government that has lost the ability to govern. Of course, not every form of government works everywhere. A constitution that serves Britain and Canada well may not be a good fit for Americans, who are famously attached to their political institutions and are convinced of their innate superiority. Nevertheless, it might be a very good thing to see the presidency cut down to size and to have the gap filled by the people's representatives in Congress. It has happened before, and it could happen again.

David Koyzis is the author of Political Visions and Illusions and We Answer to Another: Authority, Office and the Image of God. He has recently begun work on a new book exploring the relationship between political culture and governing institutions. A slightly different version of this was published at First Thoughts.

2 comments:

Doug said...

It is only occasionally now that I catch up with FB, David, but I'm glad I took the time this afternoon, otherwise I would not have read your insightful post. As there is no mechanism short of impeachment in the US system -- no vote of (lack of) confidence possible by the opposition, let alone that of the majority party -- so that, short of proof (and Senate concurrence) of treason or other high crimes and misdemeanours, a president remains in office for the term or his (constitutional) life, there is a ray of hope, as you suggest, that matters may evolve so that a "prime minister" might emerge to take the reins from the Head of State. Trump did not defeat Hilary Clinton, in the first instance, he defeated (and usurped) the GOP. Perhaps the Republicans will rise, after a period of cowering, and reassert their true Lincolnian legacy, as Trump purports to be doing.

David Koyzis said...

Interesting. Thanks, Doug.

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