The virtues of presidential government: why Professor Ackerman is wrong to prefer the German to the U.S. Constitution.

• Author: Calabresi, Steven G.

1. INTRODUCTION

   America is a world power, but does it have the strength to understand itself? Is it content, even now, to remain an intellectual colony, borrowing European categories to decode the meaning of its national identity? ... When America was a military and economic weakling on the European fringe, it was at the forefront of constitutional thought; as it transformed itself into the powerhouse of the West, its leading constitutionalists became increasingly derivative. (1)

   My message is different. I reject Westminster as well as Washington as my guide and proffer the model of constrained parliamentarianism as the most promising framework for future development of the separation of powers.... [T]he success of the German Constitution has inspired other countries, most notably Spain, to use it as a reference point in their own transitions from authoritarianism. Constrained parliamentarianism, then, is a rising force in the world, and there is much to be learned from its practical operation over the past half-century. (2)

   Yale Law Professor Bruce Ackerman is a self-proclaimed fan of the United States' unique contribution to global constitutional thought. The very same Bruce Ackerman is also now the most outspoken proponent of the superiority of German style parliamentary government to our American system of the presidential separation of powers. (3) How can this be? How could the most able American constitutional law professor of his generation turn his back on the central design feature of the U.S. Constitution? Are we Americans to become again an "intellectual colony" this time ruled by Berlin instead of London? Must we hang our heads in shame when we travel overseas, apologizing to all concerned for our untrendy system of separation of powers governance?

   No, a thousand times no! The existence of presidentialism and of the separation of powers in our Constitution is a praiseworthy feature of the document that should be emulated abroad. We should be proud of the fact that "in the 1980s and 1990s, all the new aspirant democracies in Latin America and Asia (Korea and the Philippines) have chosen pure presidentialism [and that of] the approximately twenty-five countries that now constitute Eastern Europe and the former Soviet Union, only three--Hungary, the new Czech Republic, and Slovakia -- have chosen pure parliamentarianism." (4) American style presidentialism and separation of powers is today, as Woodrow Wilson might ruefully say, "the world's fashion." (5)

   Ever since France switched to a form of presidential government in 1958 (6) more and more new democracies have chosen presidentialism. In recent times, several parliamentary democracies including France and Israel have moved to presidentialist direct election of the Chief Executive, but no originally presidentialist regime has made the switch in the other direction. Bruce Ackerman is absolutely right to say that presidentialism is now the toast of the world. (7) It has joined such other American public law exports as written constitutions, judicial review, and federalism, all of which are among the United States of America's chief contributions to world thought. The U.S. may run a balance of trade deficit in many areas, but when it comes to the war of ideas we are running a big surplus as exporters of public law. (8) Former enemies like Russia, Germany, and Japan are all now governed under Constitutions that owe much to American thinking. So why is Professor Ackerman so sad? Why is this leading voice of American constitutionalism not joyful over our triumph in the war of ideas?

   The answer is that to some extent Ackerman is joyful. (9) In fact, he thinks the U.S. succeeded so well in assisting with the design of the German Constitution that we actually helped produce something better than the document that still governs us. Bruce Ackerman is not merely another in the long line of American progressives who, from Woodrow Wilson's time on, have preferred British-style parliamentary government to our home-spun American separation of powers. No, Ackerman likes the German system of parliamentary government precisely because it has some separation of powers but not as much as the U.S. has. Germany has a powerful constitutional court, which exercises judicial review--and states with real power--but it fuses the executive and legislature together into one entity, and Ackerman thinks this end result is better than either the U.S. or the British Westminster model. (10) Ackerman calls the German system constrained parliamentary government, and he prefers it to the British model because it does not give one party total power for winning just one election. (11) He prefers it to the American model because it produces less gridlock, fewer pathologies, and a more ideological system of governance. (12)

   I think Professor Ackerman's preference for German style constrained parliamentary government is misplaced. While I prefer parliamentary government with judicial review and federalism to the monism of the British Westminister form, I much prefer the American separation of powers model to both the Berlin and London alternatives. And, I think it is high time that we Americans appreciated our homegrown system of the separation of powers and sang its praises more loudly. That is what I propose to do in this Article. I want unabashedly to discuss ten reasons why our form of constitutional design is a good form worthy of the emulation it has been receiving from other, newly-emerging democracies.

   In doing this I shall conflate the term "presidentialism" with the term "separation of powers" because all presidential regimes, as the term is generally understood, have a separately elected executive and legislature, hence the phrase the separation of powers. I shall distinguish presidential regimes here from parliamentary regimes with the operative definition being that in a parliamentary regime the head of government (who I shall generically refer to as the Prime Minister) (13) is responsible to the legislature in the sense that he is dependent on the legislature's confidence and can be dismissed from office by a legislative vote of no confidence. In contrast, in a presidential system the president and the legislature are elected separately and the President holds his office for a fixed term of years. (14)

   So why, then, is presidentialism and the separation of powers a good thing when compared with a constrained parliamentary regime subject to judicial review and with constitutional federalism guarantees to boot? Why are we Americans right to think that the libertarian, capitalist world order that we have helped to form over the last fifty years is well served by a regime-type designed 200 years ago in a very different world? I will proceed in answering those questions herein by contrasting my views with the differing views of Professor Ackerman and of his Yale colleague Juan Linz, on whom Ackerman significantly relies. Both Professors Ackerman and Linz can now be counted as being among the chief exponents of the virtues of German-style constrained parliamentary government for newly emerging democratic regimes. Professors Ackerman and Linz are among the ablest champions parliamentarianism has ever had, so I feel confident that in replying to their arguments, I am giving my intellectual opponents all that is their due.

2. PRESIDENTIAL GOVERNMENT IS SUPERIOR TO PARLIAMENTARY GOVERNMENT

   The case for presidential government over parliamentary government includes both arguments for the former and against the latter. I want to begin with a discussion of the case for presidential government and then explain why I think Bruce Ackerman and Juan Linz are wrong to fear that U.S. style presidentialism will break down into dictatorship if it is exported to newly emerging democratic regimes.

   1. TEN ARGUMENTS FOR PRESIDENTIAL GOVERNMENT

      The case for presidential government is usefully summarized into ten arguments supporting that type of regime. Cumulatively, these ten concerns suggest that presidentialism is: more democratic, more stable, less ideological, more protective of judicial review, and more libertarian than will be parliamentary regimes, all else being equal. These ten arguments by no means suggest that currently existing parliamentary regimes should abandon their Constitutions and immediately switch to presidentialism. But, they do suggest reasons for preferring presidentialism when drafting new Constitutions and for considering a change over to presidentialism when a countries' parliamentary institutions are not functioning well. Presidentialism thus is to be preferred only when all else remains equal, which of course is rarely the case in the real world.

      1. Sampling the Popular Will

         A first argument favoring the American system of separation of powers over the German system of constrained parliamentary government is quite simply that the American system is more democratic and more sophisticated in its mechanism for sampling the Popular Will. In Ackerman's terms, the American system best answers the question: "How many elections should a political movement win before gaining how much lawmaking authority?" (15)

         In a German-style constrained parliamentary regime, one national victory will give a party or a coalition of parties great power to nationalize or privatize, regulate or deregulate huge sectors of the economy. Only the constitutional court, and state governments if any exist, could potentially stand in the way of a newly elected government with 51% of the vote in a constrained parliamentary regime. And, even the Constitutional Court could offer less of a check than would the Supreme Court in this country. Basically, German-style constrained parliamentary government gives a whole lot of power to a party for winning just one election by the narrowest margin, and, it is not even an election in which you get to vote differently as a citizen of the nation and as a member...