Book Notes Madison's Nightmare: Executive Power vs. American Democracy

Madison's Nightmare: Executive Power vs. American Democracy Hot


The American government is based on an intricate set of checks and balances. Most people, or at least those who aren't authoritarians, recognize how important checks and balances can be because they prevent any one branch or part of the government from getting too powerful at the expense of other branches or of the people themselves. It would appear, though, that authoritarianism is growing in popularity in America because of the decreasing concern with checks and balances. Instead, both Democrats and Republicans keep trying to invest more and more power in the office of the President — a trend that bodes ill for the future of American democracy and freedom.

Peter M. Shane writes in Madison's Nightmare: How Executive Power Threatens American Democracy


For the last quarter century, the checks and balances of American government have been increasingly battered by the merger of two powerful currents. One is the gathering concentration of power in the hands of the federal executive, a trend nurtured since the New Deal by Presidents both Democratic and Republican, although at different rates of acceleration. The second current has been the relentless campaign of the right wing of the Republican Party since 1981 to steer the capacities of our national government toward the fulfillment of a conservative social, economic, and foreign policy agenda.

Together, the growing concentration of executive power and the campaign for partisan predominance have produced an era of aggressive presidentialism, a theory of government and a pattern of government practice that treat our Constitution as vesting in the President a fixed and expansive category of executive authority largely immune to legislative control or judicial review. This constitutional perfect storm has put the design of our democratic republic at risk, upending many of the norms and informal institutional practices that have helped to sustain the Madisonian checks and balances in our national government, at least since the end of World War II.

The authors of the Constitution knew that you can't make people morally perfect, so they tried what might be the next best thing: to harness people's less virtuous impulses in the service of virtue. They hoped, for example, that human inclinations towards territoriality and preserving personal power would lead government employees and representatives to resist the efforts of outside institutions to encroach on their turf. Thus one branch, institution, or person would be prevented from amassing too much power, not by people behaving virtuously and selflessly, but rather by people looking out for their own self-interests — and you can always count of people to be zealous in the preservation of their self-interests.


For a politician to not also be authoritarian, they need to find ways to mitigate the inevitable problems created by bad people, yet they need to do so in a context of maximal liberty rather than maximal control. That isn't easy, but the authors of America's Constitution put together several good ideas, the most important of which are the distribution of power and the use of checks & balances. The less authority is concentrated, the harder it is for any one person, party, or group to cause serious harm by abusing their power. The more checks and balances there are, the easier it will be for rivals to stop the abuses of power which inevitably come along.


The Clinton-era developments illustrate one of the great dangers of presidentialism — its resistance to contraction. The usurpation of authority works as a one-way ratchet. Even if only some Presidents advance executive power unduly as a matter of partisan ideology, all Presidents, whenever their power is challenged, will be tempted to embrace their predecessors' more audacious claims as sources of legal authority and strike out on their own. Unless somehow rebuked, the example of any President asserting authority without a genuine constitutional basis thus becomes historical precedent for the next President committed to the practice of presidentialism whether as a matter of ideological commitment or mere political calculation.

We are seeing the exact same developments under Barack Obama as Peter M. Shane describes as having happened under Clinton. When he was just a presidential candidate, Barack Obama argued strongly against the investment of unchecked power in the hands of the president; once elected, however, President Barack Obama has no only refused to give up any of the power assumed by George W. Bush, but he has expanded it in immoral ways that are contrary to every principle of a free, liberal democracy.


George W. Bush, for example, merely asserted the authority to imprison American citizens indefinitely without access to courts, lawyers, or judges; Barack Obama criticized this but now not only defends it, but has gone further by asserting the authority to assassinate American citizens anywhere in the world at any time without appeal or judicial review. Perhaps the saddest aspect of this development is the deafening silence of so many liberals who were loudly critical of Bush.


It helps to have virtuous people in government, obviously, and a system of checks and balances is greatly aided when the people involved are good — but they can also work when people aren't so good. To cite just one reason why, consider the fact that people tend to be rather jealous and greedy when it comes to their own power, status, or privileges. America's structure of government distributes power in a manner that ensures everyone has a piece of the pie and in the expectation that even less virtuous politicians will help keep others in line simply by trying to preserve their own power.


It's not a perfect system, but any system that can function when people are selfish and not just when they are selfless has a lot going for it. Unfortunately, I don't think any system will function with those in charge are craven, cowardly, and passive. People actually have to work to make government function, and currently too many in the federal government would prefer to hand power over to others so that they don't have to be troubled too much with responsibility, authority, or risk.


As recent history has unfolded, it is the legal theorists working for our most recent Republican Administrations who have most vigorously championed presidentialism as an accurate reading of what our constitutional Framers historically intended. It is not. Other presidentialist legal thinkers, including advocates for presidentialism under Democratic Administrations, have argued that presidentialism is such good governmental practice that either we should read the Constitution in a more modern vein in order to mandate presidentialism or we should welcome practices of legislative and judicial deference to the President that allow government to behave in a presidentialist fashion.

The historical record, however, does not bear out the claims for presidentialism as good practice. If we look at the functioning of our national executive when behaving most consistently with the tenets of presidentialism, we frequently find that the assumption of unilateral presidential authority prompts a narrowness in consultation, and a defensiveness and rigidity in outlook, that degrade the quality of executive decision making.

Furthermore, as might have been predicted, presidentialism operates as an ethos of government in a way that undermines other critical values, such as allegiance to the rule of law and respect for coequal branches and divergent political outlooks. As discussed in chapters 4 and 5, the results, made dramatically manifest in the "Bush 43" Administration, have included dangerously irresponsible government lawyering and a fetishizing of presidential prerogative in ways that defy common sense and the public interest. When presidentialist practice is analyzed clearly, it seems to rest on ideas about democracy and the rule of law that are unattractive and deeply unpersuasive.

One the most serious problems with the structure of Weimar Germany's constitution was the way in which a single officeholder, the Chancellor, could assume so much authority and power. A Chancellor could act without being accountable, without checks or balances, and without having to answer to anyone. Do Americans really wish to travel down a similar path by granting unprecedented and unaccountable power to their own president?


Sometimes it looks that way. People around the president are eager to assure him that he has the legal authority to do just about whatever comes into his mind — even if it includes ignoring international agreements, authorizing the torture of prisoners, incarcerating American citizens without trial or access to counsel, or even just assassinating them. The American president is being allowed to exercise near-totalitarian powers, but he’s doing it gradually and in small steps such that people don’t entirely realize it. They are even willing to approve of it, because the powers are being used against “enemies,” undesirables, and other disfavored groups.

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