January 7th, 2018
(written by lawrence krubner, however indented passages are often quotes). You can contact lawrence at: firstname.lastname@example.org
What is the difference between heart disease and a heart attack? One is a long-term condition whose risks can be managed with careful effort, the other is a short-term crisis that demands immediate attention. It is somewhat uncommon to have a heart attack, without first having heart disease. Likewise, what is the difference between a constitutional malaise and a constitutional crisis? Again, one is a long-term condition whose risks can be managed with careful effort, the other is a short-term crisis that demands immediate attention. And it is somewhat uncommon to have a constitutional crisis, without first having a long era of constitutional malaise.
By constitutional malaise I mean a situation where the constitution has been informally amended, or those in power have come to practice politics in a manner that seems to defy the manner specified by the constitution, or when there is no agreement on a constitutional issue, and no political will to clarify the situation.
Most societies are suffering constitutional malaise most of the time. They are weakened by the malaise, but most of the time they find ways to carry on, just as people with heart disease can still have successful careers and joyful lives.
Some writers are worried that President Trump will bring about a constitutional crisis. I would say no, obviously no. While the USA might face a constitutional crisis, it won’t be because of Trump. What if Trump died tomorrow? Would the political crisis be resolved? A talented leader might do a better job of ameliorating the immediacy of the problems, just as a talented doctor can postpone the moment of reckoning for a patient with heart disease. But the disease is still there. The crisis of a large society is never a crisis of one man.
There are thousands of Republicans and Democrats who have, over the course of several decades, gotten the USA to the point where a fundamental breakdown of the law might occur. We should blame them for bringing us to this point. Blaming Trump for this crisis is like blaming a heart attack on the last meal that you ate, when we all know that a heart attack arises from a disease process that typically develops over many years. It simply isn’t possible for any one meal to cause a heart attack in a healthy person. And likewise, Trump could not possibly pose a danger, if the USA had a healthy political system. It’s the pent up decades of constitutional malaise that leave us vulnerable.
That’s the summary of my argument.
You can stop reading now.
I’m planning to write a much longer piece on this subject, and so I’ve been doing a bit of reading. Below I have some quotes I found on the issues of law and custom and history. This is probably boring for everyone but myself.
A country can have a written Constitution, or it can have a Constitution that is understood to be the accumulation of thousands of precedents established over the centuries. Britain favors the later pattern. For awhile the USA followed a policy of strictly obeying a written Constitution. The USA broke with that tradition during the 1930s. I already knew the outlines of that story, but to refresh my memory I tracked down some of the highlights:
A.L.A. Schechter Poultry Corp. v. United States was a decision by the Supreme Court of the United States that invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use of Congress’ power under the commerce clause. This was a unanimous decision that rendered the National Industrial Recovery Act of 1933, a main component of President Roosevelt’s New Deal, unconstitutional.
The regulations at issue were promulgated under the authority of the National Industrial Recovery Act (NIRA) of 1933. These included price and wage fixing, as well as requirements regarding the sale of whole chickens, including unhealthy ones. The government claimed the Schechters sold sick poultry, which has led to the case becoming known as “the sick chicken case”. Also encompassed in the decision were NIRA provisions regarding maximum work hours and a right of unions to organize. The ruling was one of a series which overturned elements of President Franklin D. Roosevelt’s New Deal legislation between January 1935 and January 1936, until the Court’s intolerance of economic regulations shifted with West Coast Hotel Co v Parrish. The National Industrial Recovery Act allowed local codes for trade to be written by private trade and industrial groups.
…Speaking to aides of Roosevelt, Justice Louis Brandeis remarked that, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”
So it seemed President Roosevelt had been defeated. But then Roosevelt realized he could appoint as many judges as he wanted to. Nowhere in the Constitution does it say that the Supreme Court should have 9 members. If Roosevelt felt the current majority was too conservative, he could appoint a few more judges, perhaps expand the court to 15 members, and thus get the majority he needed to move forward with his plans. This was proposed as Judicial Procedures Reform Bill of 1937
The Judicial Procedures Reform Bill of 1937 (frequently called the “court-packing plan”) was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court. …In the Judiciary Act of 1869 Congress had established that the United States Supreme Court would consist of the Chief Justice and eight associate justices. During Roosevelt’s first term the Supreme Court struck down several New Deal measures as being unconstitutional. Roosevelt sought to reverse this by changing the makeup of the court through the appointment of new additional justices who he hoped would rule his legislative initiatives did not exceed the constitutional authority of the government. Since the U.S. Constitution does not define the size of the Supreme Court, Roosevelt pointed out that it was within the power of the Congress to change it. The legislation was viewed by members of both parties as an attempt to stack the court, and was opposed by many Democrats, including Vice President John Nance Garner.
At the end of 1936, Roosevelt announced the plan by radio, which lead to a dramatic change in the behavior of the court:
Three weeks after the radio address the Supreme Court published an opinion upholding a Washington state minimum wage law in West Coast Hotel Co. v. Parrish. The 5–4 ruling was the result of the apparently sudden jurisprudential shift by Associate Justice Owen Roberts, who joined with the wing of the bench supportive to the New Deal legislation. Since Roberts had previously ruled against most New Deal legislation, his support here was seen as a result of the political pressure the president was exerting on the court. Some interpreted his reversal as an effort to maintain the Court’s judicial independence by alleviating the political pressure to create a court more friendly to the New Deal. This reversal came to be known as “the switch in time that saved nine”; however, recent legal-historical scholarship has called that narrative into question as Roberts’s decision and vote in the Parrish case predated both the public announcement and introduction of the 1937 bill.
Roosevelt was trying to save the country from the crisis of the Great Depression. He needed new powers to do this. There was a prescribed way to gain the powers he needed, which is to ask the States to push through a Constitutional Amendment. However, this process was too slow, and it was clear that too many states would oppose the changes. Those who wanted to revive the economy increasingly adapted the attitude that they must find a way to change the Constitution, even if they could not officially change it. Their attitude could be summarized as “The Constitution is not a suicide pact” though that slogan only developed after the terrorist attacks of September 11th, 2001.
A society is an organic thing. In any society there is a constant pressure for constitutional change, and the pressure intensifies during a crisis. If you have water in a system of pipes and the pressure increases, a leak will eventually develop, and it will appear wherever the seals are weakest. Likewise, the pressure for constitutional change will appear wherever the political system makes it easiest. So in the USA, since the 1930s, nearly all changes to the Constitution have come from the Supreme Court. Because that is where it is easiest to push through an amendment.
During the next year, these five judges, occasionally in concert with others, especially Chief Justice Charles Evans Hughes, struck down more significant acts of Congress—including the two foundation stones, the NRA and the AAA, of Roosevelt’s program—than at any other time in the nation’s history, before or since. In May 1935, the court destroyed FDR’s plan for industrial recovery when, in a unanimous decision involving a kosher poultry business in Brooklyn, it shot down the blue eagle. Little more than seven months later, in a 6 to 3 ruling, it annihilated his farm program by determining that the Agricultural Adjustment Act was unconstitutional. Most of the federal government’s authority over the economy derived from a clause in the Constitution empowering Congress to regulate interstate commerce, but the court construed the clause so narrowly that in another case that next spring, it ruled that not even so vast an industry as coal mining fell within the commerce power.
These decisions drew biting criticism, from inside and outside the court. Justice Harlan Fiske Stone, a Republican who had been Calvin Coolidge’s attorney general, denounced Roberts’ opinion striking down the farm law as a “tortured construction of the Constitution.” Many farmers were incensed. On the night following Roberts’ opinion, a passerby in Ames, Iowa, discovered life-size effigies of the six majority opinion justices hanged by the side of a road.
Fury at the court intensified when, in its final action of the term, it handed down a decision in the Tipaldo case. Until that point, defenders of the court had contended that the justices were not opposed to social legislation; the jurists merely wanted such laws to be enacted by the states, not the federal government. But early in June 1936, the court, by 5 to 4, struck down a New York state law providing a minimum wage for women and child workers. Laundry owner Joe Tipaldo, said the court, could continue to exploit female workers in his Brooklyn sweatshop; the state was powerless to stop him. “If this decision does not outrage the moral sense of the country,” said Secretary of the Interior Harold Ickes, “then nothing will.” And, indeed, people of all political persuasions were incensed. On its editorial page, the Knickerbocker Press, an upstate New York Republican newspaper, asserted, “The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.”
This was the era that launched the concept that the Constitution was a living, evolving document, that should be reinterpreted to fit with the changing times:
In United States constitutional interpretation, the living Constitution (or loose constructionism) is the claim that the Constitution has a dynamic meaning or that it has the properties of an animate being in the sense that it changes. …While the arguments for the Living Constitution vary, they can generally be broken into two categories. First, the pragmatist view contends that interpreting the Constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter, and thus that an evolving interpretation is necessary. The second, relating to intent, contends that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, “living” document. Opponents of the idea often argue that the Constitution should be changed through the amendment process, and that allowing judges to determine an ever-changing meaning of the constitution undermines democracy.
…[The living Constitution is pragmatic.] This general view has been expressed by Judge Richard Posner:
“A constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law [as the Connecticut law banning contraceptives] would stand revealed as containing major gaps. Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple’s second child and place it in a foster home…. We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by framers of the Constitution.”
Any constitution can be transformed into any other constitution via an amendment. Thus, there is really only one fundamental question to decide about a constitution, and that is how it can amended.
The upside of a Living Constitution is that it can be adapted quickly to changing circumstances. The downside of a Living Constitution is that there are some changes that are not allowed by this method. For instance, even if society decided that a bicameral legislature is inefficient, and therefore the USA should have a unicameral legislature, no one will reinterpret the Constitution as saying that it authorizes and unicameral legislature. Instead of having a single, clean, straightforward way of amending the Constitution, we end up with an official method and also a controversial unofficial way which only partly works. The unofficial method is better than nothing but the lack of legitimacy inflicts a constitutional malaise on society. It would be better to have an official method that could work for all circumstances, including crisises.
Is the Supreme Court the best way for the USA to amend its Constitution? There are several problems with this approach. First, all reform efforts now focus on the Supreme Court, so each appointment to the Court is highly politicized and often subject to a litmus test that relates to whatever current amendment is burning up the attention of the public. Second, the public feels a certain dissonance, when there is a prescribed method for amending the Constitution, but it is no longer used. Third, the public feels dissonance when they hear that most of the powers of the government are being justified via an outlandish and absurd mechanism (that is, the expansive interpretation of the Interstate Commerce Clause which, since the 1930s, has justified an ever expanding Federal power).
What should the USA do when the Supreme Court rules incorrectly on a case? Currently, there is no effective method to undo the damage. When the Supreme Court issued the really terrible Dred Scott decision, the nation ended up fighting a Civil War to fix the problem. The USA was only able to push through needed Constitutional amendments after using military might to conquer several states and force them to agree to the amendments. The state of Mississippi waited till the year 2013 before ratifying the amendment that ended slavery.
A wise process of amendment allows for checks-and-balances, including on the Supreme Court. It should not be easy to overturn a decision of the court, but there does have to be some limit to have far wrong the court can go. A wise process of amendment would make it easier to overturn a bad ruling, while still preserving the indepence of the judiciary.
Over the last 500 years, many Westerners have praised the liberalism of the West, yet if you read any history of the West one is confronted with an endless sequence of government sponsored torture, censorship, theft, imprisonment and murder. The Salem Witch trials had the support of the government, so did the Spanish Inquisition. In England, Henry VIII murdered several ministers and wives. Edward Seymour, 1st Duke of Somerset, established a dictatorship in England after Henry VIII was dead and imprisoned his enemies without trial. Girolamo Savonarola was a religious fanatic who took over Florence and who was happy to destroy any art that he could get his hands on. Writers such as Voltaire had to live their lives in exile, as their home countries banned their books. The great medical researcher Servetus discovered that the heart pumped blood throughout the human body, but the Protestand leader Calvin didn’t like Servetus’s thoughts about the Trinity, so Calvin had Servetus tortured and then burned to death. For many centuries, the liberalism of the West was only visible if one turned away and looked at kingdoms in Asia and Africa, and only during certain centuries. On the issue of religious freedom, the liberalism of the West is almost a complete lie for much of the last 2,000 years. Amartya Sen points out in “The Argumentative Indian: Writings on Indian History, Culture and Identity” that in India in the 1500s, Akbar The Great was presiding over philosophical debates to which he invited leaders of all religions, while in Europe they were murdering anyone who disagreed with Catholic or Protestant teaching.
To the limited extent that the West can be considered liberal during these centuries, it is due to a single innovation: the independence of the judiciary. Where the courts could operate with real freedom, their independence offered a due process that was not available anywhere else in the world. To maintain this invaluable independence, we would be wise to keep our courts from ruling on cases where their own power is at stake, and that is essentially the bind we put them in when we make them the engine of amending the Constitution. Thus, a wise process of amendment seeks to allow bad rulings to be fixed, while still preserving the independence of the courts.
In the USA, it is widely understood that the Constitution needs several amendments. Some of these needs are not controversial. For instance, the “pocket veto” where the President puts a bill in their pocket, refusing to veto it, and thereby not giving the legislature the chance to override the President’s veto, is an obvious mistake. When I write software I often make that kind of mistake, missing an obvious scenario, and then after a month or two later I go back and I fix the mistake. But somehow the USA has gone centuries with this mistake, even though everyone acknowledges it is simply a scenario that the writers of the Constitution missed. A wise process of amendment makes it easy to fix such small procedural issues.
Some needs are controversial. The loss of population in some states has given the USA an increasingly urgent problem of Rotten Boroughs, of the type that Britain was smart to fix back in 1832. Gerrymandering has been an ongoing problem, and its aggressive use since 2010 has exacerbated the problem by blocking needed modernization. The use of guns needs to be restrained and so the 2nd Amendment needs to be deleted. The expansive interpretation of the Interstate Commerce Clause needs to be replaced with an amendment that simply gives the Federal government the power that the public wants the government to have. And those who follow constitutional law, and care about it, would like to see the USA go to a system more like what they have in Britain, where the justices on the high court are chosen by those in the legal system, rather than by Parliament. The USA Supreme Court is more politicized than Britains’s high court, because the USA Supreme Court is chosen directly by the legislature — this should be changed.
What is the best way to amend a constitution? If we were innocent, we might think that a two-thirds majority vote in the legislature should be enough, as any law that popular deserves to be made a part of the constitution. But if amendments become that easy, a country can quickly become a dictatorship, as happened recently in Hungary:
Hungarian Prime Minister Viktor Orban took it as a joke but his supporters at home were furious when European Commission President Jean-Claude Juncker saluted him with an audible “hello dictator” before the world’s cameras last month.
The unorthodox greeting at a summit with the European Union’s eastern partners in Riga on May 22 was one of those rare moments when the underside of politics appears fleetingly on the surface. Banter aside, the EU authorities have proved largely ineffective in curbing the conservative nationalist Orban’s drive to tighten his grip on the central European state.
“Juncker has Orban on his watch list,” says an aide to the head of the EU executive, which is in charge of upholding the bloc’s treaties, including civil rights.
But Orban, who espouses “illiberal democracy”, has mostly outfoxed efforts to restrain his reshaping of the judiciary, data protection, media and non-governmental organisations, EU and Hungarian officials say.
He used his two-thirds parliamentary majority to ram through a new constitution, shrugging off warnings from EU colleagues against using his supermajority powers.
The problem with allowing a single two-thirds vote to change the constitution is that occasionally a crisis will bring to power an extremist party. The crisis might be a war, or a disease, or an economic collapse. Any event which causes the public to panic might allow fanatics to gain too much power.
We could say that Hungary has two minor problems in its constitution, which combine to form a major problem:
1. the entire legislature is put at risk during each election
2. the constitution can be change with a two-thirds vote
Either of these can be reconciled to Western ideals of liberal proceduralism, but the two of them together are a disaster.
If the legislature was changed with a staggered schedule, as the Senate of the USA is, then the two-thirds vote to change the constitution would not be so deadly.
If the whole legislature can be changed at once, then amending the constitution needs to be more difficult than a single vote.
What is the ideal that we should aim for when changing a constitution? There must be some happy ground between the USA and Hungary. In the USA, all Federal power since the 1930s has been justified with a ludicrous interpretation of the Interstate Commerce Clause. Any change to the constitution that is in effect for 80 years and seems to be popular (there has never been a serious movement against it) should be formally incorporated into the constitution. But clearly, the constitution should not be as easy to change as it is in Hungary, at least not if the whole legislature can change suddenly.
Assuming a legislature that is put at risk during a single election, perhaps we should have a rule that amending the constitution requires two votes, each with a two-thirds majority, and separated by some years. This would have allowed the USA to formally recognize the changes that it has made to its Constitution (the changes of the 1930s were popular enough that they could have won two-thirds votes in the USA legislature, for many decades), and such a rule would have protected Hungary against dictatorship.
But even that isn’t quite correct. There are times of crisis when the constitution needs to be changed with urgent speed. For instance, all societies need to restrict the freedom of speech during times of war. The benefits of free speech pay off in the long-term, whereas the harm of free speech manifests in the short-term. In the long-term, it is very beneficial that the newspapers can publish reports of corruption in government, as that helps keep the government honest. But if, during times of war, newspapers are allowed to publish the location and movement of troops, the results can be devastating and immediate. Your country could lose a war and face conquest, if the media was allowed to publish military secrets.
Some take a religious attitude toward the USA Constitution. They hope to defend its purity. They regard it as being as immutable as the Bible. Therefore the USA’s conversation about what the Constitution allows tends to be schizophrenic. Like any country, the USA restricts humans rights during times of war, but typically the public, and the media, and the political leadership, will insist that the Constitution has not changed, despite the fact that it clearly has. Some people continue to insist that the Supreme Court had no authority to reinvent the Constitution during the 1930s. Likewise, after the terrorist attacks of September 11th, 2001, the right-wing adopted the slogan “The Constitution is not a suicide pact” and they pushed through the Patriot Act, which radically reduced the 4th Amendment protections against search and seizure, which had been respected for over 200 years. Somehow we are asked to believe that these dramatic changes to the Constitution do not represent changes to the Constitution.
This is the constitutional malaise which gave us President Trump. And clearly, the problem is not Trump. The disease has built up over decades. If Trump disappeared tomorrow, all of our problems would still be there. The constitutional malaise is driven by the fact that it is too hard to change the Constitution in the formally correct way (a three-fourths vote of the States).
So in fact, the ideal method for changing the constitution would allow for the fact that when a war occurs, a nation might need to change its constitution in a hurry, yet we hope to avoid the kind of crisis that has engulfed Hungary. Therefore there must be be two votes, each of which must have at least a two-thirds majority, with the second vote happening one day plus some years after the first vote. The number of years should be determined by the strength of the first vote. An appropriate time scale might be:
100% — 0 years
95% — 2 years
90% — 4 years
85% — 6 years
80% — 8 years
75% — 10 years
67% — 12 years
That is, if war breaks out, and the legislature is 100% united in believing an amendment must go through, then they need two votes, separated by one day plus zero years. In other words, this amendment can be pushed through almost instantly. But if the political actors who want an amendment only control 67% of the vote, they must wait 12 years for the second vote. This allows a two-thirds majority to change the constitution, but insists that it must be a stable two-thirds majority that holds for a long period of time. I’m also assuming that a legislature will rarely have 100% agreement on anything, unless a crisis is so overwhelming that it forces every faction to put aside their normal differences and agree on a change for the good of the nation.
Put another way, if the constitution is changed, and the public is supportive of the change, and no large-scale challenge emerges against the change, and 80 years go by, and yet still the constitutional change can not be formally recognized, then clearly that nation has a serious problem that arises from the fact that it is too difficult to formally recognize changes in the constitution. Yet on the other hand, allowing a single vote to the change the constitution allows an unethical demagogue to sieze power in a crisis and then warp the constitution to ensure that their power lasts forever.
Again, the goal should be to find a comfortable middle ground between the crisis that the USA faces, versus the crisis that Hungary faces.
However, I would point out, if we care about stability, if we abhor arbitrary legal outcomes, if we care about due process and human rights, then we would be wise to undo both of the errors that has gotten Hungary into such trouble. Therefore, the legislature should change slowly, at some set schedule, as the USA Senate does, and also, as I said previously, the process of amendment should be something that is typically stretched out over a few years, with the number of years determined by the strength of the initial vote.
Having said all this, it is important that we remind ourselves that a constitution is a fairly weak force for protecting the freedom of a nation. The old Soviet Union had a very beautiful constitution that said many pretty things, but no one cared what the constitution said. The text we write on a piece of paper only matters if people are willing fight for it. When we discuss how due process and the rule of law is maintained in a country, the most important factor, by far, is the willingness of the people to rebel, either by blocking the streets, or by organizing a strike against economic activity. Poland lived under a brutal dictatorship for many decades, a dictatorship that was broken by the people’s willingness to support Solidarnosc, and then Solidarnosc’s increasing effectiveness at imposing an economic general strike. Almost as important as people’s willingness to fight is the attitude of the elites. There will be eras when elite factions don’t trust each other, and don’t think they can destroy each other, so they will become advocates of due process. For instance, in the USA, for many decades the Catholics were aware that the Protestants were hoping to limit the religious expression of the Catholics, so the Catholic elites were surprisingly strong supporters of religious liberty (in contrast to how the Catholic elites behaved in those countries that had historically been Catholic). In recent decades a unified Christian culture has emerged. Whereas once millions had been willing to fight and die regarding the differences between a Baptist and a Lutheran (thousands were burned at the stake because of the disagreement regarding infant baptism), nowadays no one cares, nor do they even care about the differences between Protestant and Catholic. The simplification of Christian identity has made it somewhat less supportive of religious freedom, especially in regards to muslims.
The willingness of the people to fight, combined with the attitudes of the elites, helps establish norms, which grant an inertia to political customs in a country and thus help stabilize it (remember how Newton defined inertia — an object in motion will tend to remain in the same motion). A written constitution can help shape those norms, and can help establish a healthy process for changing those norms over time, but we should always remember the that our freedom does not magically derive from the constitution itself.
Having said all that, let’s consider Trump, again. Matthew Glassman, writing at Vox, has a long piece about the weaknesses of Trump’s Presidency
In his classic 1960 book Presidential Power and the Modern Presidents, Richard Neustadt famously defined presidential power as “the power to persuade.” A president must convince other political actors that their own interests lie in going along with him, or at least not standing in his way, Neustadt suggested.
…Neustadt’s key insight was that the presidency has few formal powers, and presidents consequently must bargain to secure cooperation from numerous political actors. Members of Congress have endless opportunities to support or oppose a president’s legislative program; executive branch actors can follow or ignore presidential direction; judges can rule for or against presidential positions; outside groups can support or oppose policy proposals; and the media selects issues to highlight or downplay. In every instance, these actors weigh the political costs and benefits of support and opposition.
A president’s chief resource for persuasion is his professional reputation, ideally that of a winner who achieves objectives and punishes opposition. Political actors constantly anticipate the reaction of the president (and others) to their choices. They will hesitate to oppose or ignore you if they foresee a lonely loss or fear a harsh punishment; no one in Washington sticks out a neck if it might get cut off. Conversely, support becomes elusive if there are concerns you can’t get the job done, and actors may see opportunities to assert their own power against you. Winning begets winning; losing begets losing.
Public prestige, Neustadt argued, is a related weapon in the president’s arsenal, and it operates similarly — but mediated through voters, not Washington power brokers. Political actors in a democracy are always fearful of losing public support. It can cost a public official their job, harm a judge’s prestige, or ruin an interest group. To cross a popular president risks him directing his popularity against your own. As with professional reputation, presidents who make strategic choices that enhance their prestige will find it available as a future resource.
All of this takes enormous political skill. “The presidency is no place for amateurs,” Neustadt famously wrote. Consequently, skillful management of power enhances itself. His ideal figure was FDR, a master cultivator of both professional reputation and public prestige. His foils were Truman and Eisenhower. Where FDR had an intuitive genius for wielding power and obsessive drive for amassing it, Neustadt saw Truman as insufficiently attentive to the nuances of developing sustained power. Eisenhower, Neustadt argued, came into office a public hero, but completely lacked the political acumen necessary to leverage it for influence.
For a new president, then, Neustadt lays out a road map to sustained power: demonstrate immediate competence by strategically choosing early legislative and administrative priorities to win victories and build your reputation. Accurately assess your standing to avoid early confrontations you may lose. And rapidly learn the nuances of bureaucratic power in the White House and executive branch, to master which levers to pull, when to pull them, and whom not to annoy.
Is it wise to create an executive role that is so essential, yet so powerless, and then make it almost impossible to remove someone who does not appear able to manage the job? We should want a system that offers us both more stability and also an easier way to get rid of a President and replace them with someone else. That would imply governance via an executive council, of whom one member can be chosen as President for short periods, perhaps a year. While the USA’s constitution might have seemed innovative in 1787, reasonable people will agree that it is woefully obsolete in 2018.
Exactly because the constitution is so flawed, the importance of the character of the President is increased. If we had a healthier political system, it would matter less whether or not the President was competent. But in a system where much of the formal, written Constitution needs to be ignored, it becomes much more important that we have a President of unusual brilliance and managerial skill. Ezra Klein summarizes a recent Trump interview, and then concludes:
This is the president of the United States speaking to the New York Times. His comments are, by turns, incoherent, incorrect, conspiratorial, delusional, self-aggrandizing, and under-informed. This is not a partisan judgment — indeed, the interview is rarely coherent or specific enough to classify the points Trump makes on a recognizable left-right spectrum. As has been true since he entered American politics, Trump is interested in Trump — over the course of the interview, he mentions his Electoral College strategy seven times, in each case using it to underscore his political savvy and to suggest that he could easily have won the popular vote if he had tried.
I am not a medical professional, and I will not pretend to know what is truly happening here. It’s become a common conversation topic in Washington to muse on whether the president is suffering from some form of cognitive decline or psychological malady. I don’t think those hypotheses are necessary or meaningful. Whatever the cause, it is plainly obvious from Trump’s words that this is not a man fit to be president, that he is not well or capable in some fundamental way. That is an uncomfortable thing to say, and so many prefer not to say it, but Trump does not occupy a job where such deficiencies can be safely ignored.
Some of the flaws of the USA Constitution have been under discussion since the early 1800s. A bitter issue has been the combination of Head Of State and Head Of Government in a single person (read “The Whigs ridiculed Andrew Jackson as ‘King Andrew the First’ for his expansion of executive power“). We would not be exaggerating much if we said all the governments in the world fit in one of three categories:
1. nations with a separate Head Of State and Head Of Government
3. The United States of America
It’s important to note that the USA Constitution is the most studied and most imitated constitution on the planet, yet this one feature has never been copied. Everyone understands that it was a mistake.
Another issue where both people on the Right and people on Left would like to see change is the way the USA is locked into having just two parties. Most European countries have a rich set of political parties. Under the rules of the USA, only two parties are able to thrive. Yet trying to build coalitions broad enough that 51% of voters feel comfortable belonging in one big party leads to constant awkwardness. It also stifles conversations, since politicians generally can not criticize members of their own coalition. In most countries, globalizing neoliberals and socialists would belong to two different parties, but in the USA they both get shoved into the Democratic party. This leads to incoherent political debates.
Somewhat more controversially, I think most people would now agree that the “small state bias” of the Constitution is working against the USA in the modern era. That bias helps agricultural states, and therefore it did not do much harm during the era when agriculture was still a growth industry. But agriculture has been shrinking rapidly since the 1920s, and it has now become an extremely small part of the economy. We are now lost in a fever dream of nostalgia, nurtured on gentle myths about farmers and cows and independent sovereign states and decentralized government. Nostalgia is deadly. Nostalgia keeps us from looking honestly at the rising Asian giants. In recent decades, the economically most successful countries have been those that are best at centralizing power to mobilize resources to follow a program of modernization. Nostalgia is a recipe for the continued decline of the USA. Millions of Americans have suffered from the deindustrialization and globalization of the USA economy, and millions of these people voted for Trump. But Trump has little incentive to fix the problems with the Constitution, since he has so far benefited from those flaws.
Decentralization versus centralization is one of the most delicate issues that a constitution can adjudicate. There is no permanent right answer. Everything changes depending on the goals of a country and the technology of the time. Even on the specific issue of war, the different centuries have sometimes rewarded centralization, and other times rewarded decentralization, both on the tactical level, and on the global strategic level. In Europe, before the 1700s, armies often moved as a mass as the king would not trust his lords once they left his sight. The professionalization of the officer corps during the 1700s allowed new tactics. Napoleon developed an innovative technique where he would tell his officers where he wanted them to get, but he would leave it to them to find their own route and develop their own methods. Likewise, when the European empires were expanding in the 1500s, their governments granted to each expedition nearly the whole autonomy of an independent government. Britain was among the first to put limits on what a merchant could do. In 1772, when Robert Clive was investigated by Parliament, everyone understood that an era was coming to an end. From that point forward, the British Empire centralized.
Even a short study of history will show that there is no connection between the issue of liberty and the issue of centralization. Some governments have concentrated power and become more authoritarian, whereas others concentrate power while becoming more concerned with human rights. The Roman Republic became the less democratic Roman Empire at time when power was concentrating but the initial decentralization of the USA existed mostly so that slavery could continue uncontested, and then the great civil rights revolution of 1932-1968 occurred when power in the USA was concentrating upwards to the Federal level. Likewise, the fragmented power of feudalism in France allowed the continuance of sexual assaults, as suggested by Pierre Beaumarchais in The Marriage Of Figaro (Nicolo Machiavelli also warned feudal lords to limit how much rape they committed: “It makes him hated above all things, as I have said, to be rapacious, and to be a violator of the property and women of his subjects, from both of which he must abstain”) whereas the Revolution both centralized power in France, and began the modern era of human rights.
Whatever arguments one might make for or against the centralization of power in the USA, I hope we can agree that the debate should not proceed on the basis of nostalgia. Nostalgia is always a lie. Pragmatically, we can say that the USA has benefitted from the last 80 years of centralization, yet we have not centralized enough to keep up with the growing Asian nations. Centralization in the USA appears to be popular (no serious movement has arisen against it in 80 years) yet it appears to be almost entirely illegal. One has to believe a truly absurd interpretation of the Interstate Commerce Clause to believe that the Federal government has a legal basis for the powers of regulation that it currently claims. Again, it’s expanded powers should be made legitimate through an actual amendment to the Constitution.
Given how long people have criticized the various mistakes of the Constitution, it is somewhat surprising to sometimes run into people who defend it. I don’t mean crazy right-wingers, I mean reasonable people. Consider this essay by Jonathan Freedland, who once wrote a book praising the USA Constitution:
Usually, I have managed to deflect these challenges, arguing that my book was a homage to a founding ideal, not to the necessarily flawed reality. But it’s time for me to admit my doubts about its core idea – its admiration for the US constitution and system of government. For this first year of the Donald Trump presidency has exposed two flaws in the model that I cannot brush aside so easily.
The first is that Trump has vividly demonstrated that much of what keeps a democracy intact is not enshrined in the written letter of a constitution, but resides instead in customs and conventions – norms – that are essential to civic wellbeing. Trump trampled all over those as a candidate – refusing to disclose his tax returns, for example – and has trampled over even more as president.
Convention dictated that he had to divest himself of private business concerns on taking office, to prevent a conflict of interest – but in the absence of a law explicitly forcing him to do so, he did no such thing. The same goes for appointing unqualified relatives to senior jobs, sacking the director of the FBI with no legitimate cause, or endorsing an accused child molester for the US Senate. No law told him he couldn’t, so he did.
I once thought the US constitution – a document crafted with almost mathematical precision, constructing a near-perfect equilibrium of checks and balances – offered protection against such perils. And there’s no denying that that text, as interpreted by the courts, has indeed acted as a partial roadblock in Trump’s path, delaying and diluting his Muslim-focused “travel ban”, for example.
But this year of Trump has also shown the extent to which the US has an unwritten constitution that – just like ours – relies on the self-restraint of the key political players, a self-restraint usually insisted upon by a free press. Yet when confronted with a leader unbound by any sense of shame – and shamelessness might just be Trump’s defining quality – America is left unexpectedly vulnerable.
I am baffled by the line “a document crafted with almost mathematical precision, constructing a near-perfect equilibrium of checks and balances”. The single most important check-and-balance in the USA is the independence of the Supreme Court, and that independence is not defended by the Constitution, so right away we can imagine a constitution that would have much better checks and balances. What has been merely a custom for 230 years should be formalized as an actual amendment to the Constitution: something that specifies the size of the Supreme Court, and fixes the terms of service to something less arbitrary than death, would be an important step forward.
Likewise, “relies on the self-restraint of the key political players” seems to be ignorant of a great deal of USA history. That our Constitution, like all constitutions, survives in part because of social norms is an issue that’s been a hot topic since the beginning of the country. In his wonderful book Founding Brothers: The Revolutionary Generation Joseph J. Ellis makes the point that the conflict between Alexander Hamilton and Aaron Burr arose because Hamilton was aware that a man as deeply corrupt as Burr could ruin a democratic experiment which depended, at least somewhat, on the quality of the characters involved.
At the risk of indulging in a rather long tangent, I’d like include the story of one of the most competent political actors of the 20th Century, Queen Elizabeth of Britain. In some sense, she can be seen as the opposite of Donald Trump. Trump undermines the legitimacy of the Presidency because of his incompetence, whereas Queen Elizabeth is head of an institution that many regard as illegitimate (rule by birth being obsolete in 2017) yet thanks to her expert management, she has kept the monarchy popular.
Elizabeth needed no qualifications for her new job. She didn’t even need to want it. But even the most flinty-stoned of republicans are forced to admit that she has made a good fist of it. Elizabeth appears to have applied the same logic to her reign as I did to my French O-grade, which was deciding that the less I said, the less likely I was to make an error. It’s an excellent strategy. Not many people could manage 63 years, seven months and two days of neutral restraint, though. The duration of a French exam was tough enough.
Yet Elizabeth has managed an astounding length of uncontroversial service. The closest she came to scandal was in her refusal to rend her garments at the death of Princess Diana. Even in that, she has in the end been vindicated.
Elizabeth’s guiding philosophy has always been: “It’s not about me.” It’s easy to see now that Diana, who believed for a time (understandably) that it was all about her, came closer to delivering the Queen’s anathema – royalty as a part of celebrity culture – than anyone is likely to try for in many decades to come.
In putting duty and service first, the Queen has also put survival first. She carries on so that she and her family and their institution can carry on. Her self-abnegation is really self-interest. The attraction of a scrap of unwanted attention in among all that wanted attention simply creates unpredictability, when predictability is the essence of the entire business.
As recently as the Diamond Jubilee of 2012, the Queen’s approval ratings passed 80 per cent, a level of popularity of which prime ministers can only dream. Yet it would be wrong for monarchists to be too complacent.
A belief in the long-term security of the throne could be badly misplaced. For it is possible that the Queen’s longevity and fidelity may disguise much deeper misgivings about the role of the monarchy in the 21st century.
After all, admiration for the present incumbent does not necessarily translate into support for the institution itself.
…There are several factors to consider. One is that apart from the Queen herself, there is growing suspicion about the legitimacy of an unelected, unaccountable ruler whose elevated position is based only on an accident of birth.
Throughout the world, there is now a deep antipathy towards governing elites that act in their own vested interests, as shown by the widespread anger about the revelations in the Panama tax scandal.
That feeling is particularly strong among young people, who have been brought up with the concept of social justice and have no time for the concept of hereditary privilege.
In my work as an academic, I talk to a lot of students, many of them born since Princess Diana died, and the traditions of the monarchy mean little to them. The very concept of hereditary privilege is likely to provoke resentment rather than reverence.
In the same vein, we live in an increasingly secular, multi-faith society, where traditional, Anglican Christianity is no longer the dominant national religion.
Is there any limit on the importance of character? Does a written constitution have any effect at all? In the abstract sense, one could argue that all societies live with constitutional malaise all of the time. One could argue this from the point of view of the French Deconstructionists, or Godel’s Incompleteness Theorem:
The first incompleteness theorem states that no consistent system of axioms whose theorems can be listed by an effective procedure (i.e., an algorithm) is capable of proving all truths about the arithmetic of the natural numbers. For any such formal system, there will always be statements about the natural numbers that are true, but that are unprovable within the system. The second incompleteness theorem, an extension of the first, shows that the system cannot demonstrate its own consistency.
As a thought experiment, let’s take this to an extreme. Assume any text can be interpreted any way, therefore nothing means anything and it is meaningless to say that a society has a written Constitution. If words don’t matter, then perhaps it doesn’t matter if we write things down. But that can never be exactly true, because even if a written Constitution is wide open to interpretation, there is still a qualitative difference between claiming that a society should have a written Constitution, versus saying that it should not have a written Constitution. Writing about something changes your relationship to it. That is, merely believing that one should put society’s fundamental laws into written form changes society. Writing the law changes the law, just like, in ancient days, the Jews transformed their religion when they decided to write it down. We can judge the efficiency of a written religion by its survival: over the last 2,000 years innumerable unwritten religions have passed out of existence, and were replaced by a small handful of religions that wrote down their previously oral traditions. And all advanced societies put their laws into written form. We can assume there is meaning in the fact that this habit is universal.
More so, I think we can agree, words might be flexible but they are not infinitely flexible. No one will read the USA Constitution and conclude that it describes a government with a unicameral legislature whose leader is the Prime Minister and Head Of Government. Therefore, the text of a written constitution always matters, even if it is subject to varied interpretations.
How much does character matter, versus the institutions specified by the law? One way to understand this question is to engage in a thought experiment where we imagine a group of people of high integrity, trying to do good in the world, but without any rules or structures or governance. How effective are they?
Jo Freeman discusssed this in her essay “The Tyranny Of Structurelessness“. She was discussing the women’s movement, which was certainly full of people of good intention, but which crippled itself with its own lack of structure.
During the years in which the women’s liberation movement has been taking shape, a great emphasis has been placed on what are called leaderless, structureless groups as the main — if not sole — organizational form of the movement. The source of this idea was a natural reaction against the over-structured society in which most of us found ourselves, and the inevitable control this gave others over our lives, and the continual elitism of the Left and similar groups among those who were supposedly fighting this overstructuredness.
The idea of “structurelessness,” however, has moved from a healthy counter to those tendencies to becoming a goddess in its own right. The idea is as little examined as the term is much used, but it has become an intrinsic and unquestioned part of women’s liberation ideology. For the early development of the movement this did not much matter. It early defined its main goal, and its main method, as consciousness-raising, and the “structureless” rap group was an excellent means to this end. The looseness and informality of it encouraged participation in discussion, and its often supportive atmosphere elicited personal insight. If nothing more concrete than personal insight ever resulted from these groups, that did not much matter, because their purpose did not really extend beyond this.
The basic problems didn’t appear until individual rap groups exhausted the virtues of consciousness-raising and decided they wanted to do something more specific. At this point they usually foundered because most groups were unwilling to change their structure when they changed their tasks. Women had thoroughly accepted the idea of “structurelessness” without realizing the limitations of its uses. People would try to use the “structureless” group and the informal conference for purposes for which they were unsuitable out of a blind belief that no other means could possibly be anything but oppressive.
If the movement is to grow beyond these elementary stages of development, it will have to disabuse itself of some of its prejudices about organization and structure. There is nothing inherently bad about either of these. They can be and often are misused, but to reject them out of hand because they are misused is to deny ourselves the necessary tools to further development. We need to understand why “structurelessness” does not work.
All of which acts as a reminder about why we have government. A mighty civilization will need organization, rules, structure, a chain of command, complex systems of feedback and regulation — all the paraphernalia of the modern age. If you find the current system overly regulated, remember that we got here for a reason.
Finally, I’ll put in a word about how constitutional malaise makes it more likely that a society will suffer some catastrophic event. The best example I’ve read is regarding World War I.
When I first heard there was a book about World War I with the title of “Sleepwalkers” I thought the title was very stupid. I did not understand the premise of the book. I’m glad I ended up reading through it, because in fact it make a brilliant point.
Several nations in Europe underwent radical change during the 1800s, without formally recognizing the need for constitutional change. This lead to incoherent foreign policy, which endangered each nation. For instance, the Tsar remained the nominal head of the Russian Empire, even as the Russian Empire grew to such as extent that, like all modern states, it could only be run by a large, professional bureaucracy. Yet the Tsar continued to feel that he should be in charge of everything, and occasionally he pursued policies that were directly opposed to what the rest of the Russian government was trying to do. More so, since the Tsar understood that his power was under attack, he tried to undermine each section of the Russian government, so that he would retain the power to play one faction off against another. This meant the Russian government was divided against itself, which left Russia much weaker than it might have otherwise been.
A similar scenario played out with the Kaiser in Germany. The diplomatic corps of Germany would do everything possible maintain the peace of Europe, yet then the Kaiser would write to some head of state and propose an alliance against a nation that the rest of the German government was hoping to establish as a friend.
How much power should the Head Of State have? Where was the real executive authority? Who spoke for the government? These unresolved constitutional issues made it inevitable that Europe would sleepwalk into a disastrous war.
Because this example works so well with my thesis, I am here including a very long excerpt from The SleepWalkers: How Europe Went To War In 1914 from Christopher Clark, 2012.
This starts at page 168:
In a cartoon published in the late 1890s, a French artist depicted the crisis brewing over China on the eve of the Boxer Uprising. Watched warily by Britain and Russia, Germany makes to carve out a slice identified as “Kiao-Tschaou” from a pie called “China”… As so often in such images, the powers are represented as individual persons… Personifying states as individuals was part of the shorthand of European political caricature, but it also reflects a deep habit of thought: the tendency to conceptualize states as composite individuals governed by compact executive agencies animated by an indivisible will.
Yet even a very cursory look at the governments of early twentieth-century Europe reveals that the executive structures from which policies merged were far from unified. Policy making was not the prerogative of single sovereign individuals. Initiatives with a bearing on the course of a country’s policy could and did emanate from quite peripheral locations in the political structure. Factional alignments, functional frictions within government, economic or financial constraints and the volatile chemistry of public opinion all exerted a constantly varying pressure on decision making processes. As the power to shape decisions shifted from one node in the executive structure to another, there were corresponding oscillations in the tone and orientation of policy. This chaos of competing voices is crucial to understanding the periodic agitation of the European system during the last pre-war years. It also helps to explain why the July Crisis of 1914 became the most complex and opaque political crisis of modern times.
Early twentieth-century Europe was a continent of monarchies. Of the most important powers, five were monarchies of one kind or another, only one, France, was a republic. The relatively new nations states of the Balan peninsula — Greece, Serbia, Montenegro, Bulgaria, Romania and Albania — were all monarchies. The Europe of fast cruisers, radio telegraph, and electric cigar lighters still carried at its heart this ancient, glittering institution yoking large and complex states to the vagaries of human biology. The European executives were still centered on the thrones and the men or women who sat on them. Ministers in Germany, Austria-Hungary and Russia were imperial appointees. The three emperors had unlimited access to state papers. They also exercised formal authority over their respective armed forces. Dynastic institutions and networks structured the communications between states. Ambassadors presented their credentials to the sovereign in person and direct communications and meetings between monarchs continued to take place throughout the pre-war years; indeed they acquired a heightened importance, creating a parallel plane of interaction whose relationship to official diplomacy was sometimes difficult to ascertain.
Monarchs were symbolic as well as political actors, and in this role they could capture and focus collective emotions and associations. When Parisian onlookers gawped at Edward VII sprawled in a chair outside his hotel smoking a cigar, they felt they were looking at England in the form of a very fat, fashionable and confident man. His triumphant ascent in Parisian public opinion in 1903 helped smooth the path to the Entente signed with France in the following year. Even the mild-mannered despot Nicholas II was greeted like a conquering hero by the French when he visited Paris in 1896, despite his autocratic political philosophy and negligible charisma, because he was seen as the personification of the Franco-Russian Alliance. And who embodied the most unsettling aspects of German foreign policy – its vacillations, lack of focus and frustrated ambition – better than the febrile, tactless, panic-prone, overbearing Kaiser Wilhelm, the man who dared to advise Edvard Grieg on how to conduct Peer Gynt? Whether or not the Kaiser actually made German policy, he certainly symbolized it for Germany’s opponents.
At the core of the monarchical club that reigned over pre-war Europe was the trio of imperial cousins: Tsar Nicholas II, Kaiser Wilhelm II and George V. By the turn of the twentieth century, the genealogical web of Europe’s reigning families had thickened almost to the point of fusion. Kaiser Wilhelm II and King George V were both grandsons of Queen Victoria. Tsar Nicholas II’s wife, Alexandra of Hess-Darmstadt, was Victoria’s granddaughter. The mothers of George V and Nicholas II were sisters from the house of Denmark.
Britain, Germany and Russia represented three very different kinds of monarchy. Russia’s was, in theory at least, an autocracy in which the parliamentary and constitutional restraints on the monarchs’s authority were weak. Edward VII and George V were constitutional and parliamentary monarchs with no direct access to the levers of power. Kaiser Wilhelm II was something in between — in Germany, a constitutional and parliamentary system was grafted on to elements of the old Prussian military monarchy that had survived the process of national unification. But the formal structures of governance were not necessarily the most significant determinants of monarchical influence. Other important variables included the determination, competence and intellectual grasp of the monarch himself, the ability of ministers to block unwelcome initiatives and the extent of the agreement between monarchs and their governments.
One of the most striking features of the influence wielded by the sovereigns on the formulation of foreign policy is its variation over time. Edward VII, who presided over the diplomatic realignments of 1904-1907, had strong views on foreign policy and prided himself on being well informed. His attitudes were those of an imperialist “jingo”; he was infuriated by Liberal opposition to the Afghan War of 1897-1899, for example, and told the colonial administrator Sir Henry Bartle Frere: “If I had my way I should not be content until we had taken the whole of Afghanistan and kept it.” He was overjoyed at the news of the raid against the Transvaal Republic in 1895, supportive of Cecil Rhode’s involvement in it, and infuriated by the Kaiser’s Kruger telegram. Throughout his adult life he maintained a determined hostility to Germany. The roots of this antipathy appear to have lain partly in his opposition to his mother, Queen Victoria, whom he regarded as excessively friendly to Prussia, and partly in his fear and loathing of Baron Stockmar, the unsmiling Germanic pedagogue appointed by Victoria and Albert to hold the young Edward to a regime of unstinting study. The Prussian-Danish War of 1864 was a formative episode in his early political life — Edward’s sympathies in that conflict rested firmly with the Danish relatives of his new bride. After his accession to the throne, Edward was an important sponsor of the anti-German group of policy-makers around Sir Francis Bertie.
The king’s influence reached is height in 1903, when an official visit to Paris — “the most important royal visit in modern history”, as it has been called — paved the road towards the Entente between the two imperial rivals. Relations between the two western empires were still soured at this time by French outage over the Boer War. The visit, which had been organized on Edward’s own initiative, was a public relationship triumph and did much to clear the air. After the Entente had been signed, Edward continued to work towards an agreement with Russia, even though like many of his countrymen, he detested the Tsarist political system and remained suspicious of the designs that Russia had on Persia, Afghanistan and northern India. In 1906, when he heard that the Russian foreign minister Izvolsky was in Paris, he rushed south from Scotland in the hope that a meeting could be setup. Izvolsky responded in kind and made the journey to London, where the two men met for talks that — according to Charles Hardinge — “helped materially to smooth the path of the negotiations then in progress for an agreement with Russia” In both these instances, the king was not deploying executive powers as such, but acting as a kind of supernumerary ambassador. He could do this because his priorities accorded closely with those of the liberal imperialist faction at Whitehall, whose dominance in foreign policy he had himself helped to reinforce.
George V was a very different case. Until his accession in 1910, he took little interest in foreign affairs and had acquired only the sketchiest sense of Britains’s relations with other powers. The Austrian ambassador Count Mensdorff was delighted with the new king, who seemed, by contrast with his father, to be innocent of strong biases for or against any foreign state. If Mensdorff hoped the changing of the guard would produce an attenuation of the anti-Germa theme in British policy, he was soon to be disappointed. In foreign policy, the new monarch’s seeming neutrality merely meant that policy remained firmly in the hands of the liberal imperialists around Grey. George never acquired a political network to rival his father’s, refrained from backstairs intrigue and avoided expounding policy without the explicit permission of his ministers. He was in more or less constant communication with Edward Grey and granted the foreign secretary frequent audiences whenever he was in London. He was scrupulous about seeking Grey’s approval for the content of political conversations with foreign representatives — especially his German relatives. George’s accession to the throne thus resulted in a sharp decline in the crown’s influence on the general orientation of foreign policy, even though the two monarchs wielded identical constitutional powers.
Even within the highly authoritarian setting of the Russian autocracy, the influence of the Tsar over foreign policy was subject to narrow constraints and waxed and waned over time. Like George V, the new Tsar was a blank sheet of paper when he came to the throne in 1894. He had not created a political network of his own before the accession and his deference to his father ensured that he refrained from expressing a view on government policy. As an adolescent, he had shown little aptitude for the study of affairs of state. Konstantin Pobedonostesev, the conservative jurist drafted in to give the teenage Nicky a master class on the inner workings of the tsarist state, later recalled: “I could only observe that he was completely absorbed in picking his nose.” Even after he mounted the throne , extreme shyness and terror at the prospect of having to wield real authority prevented him in the early years from imposing his political preferences — insofar as he had them — on the government. He lacked, morevover, the kind of executive support he would have needed to shape the course of policy in a consistent way. he possessed, for example, no personal secretariat and no personal secretary. He could — and did — insist on being informed of even quite minor ministerial decisions, but in a state as vast as Russia’s, this merely meant that the monarch was engulfed in trivia while matters of real import fell by the wayside.
…Nicholas’s interventions took the form of informal alignments, rather than of executive decisions. He was closely associated, for example, with the aristocratic entrepreneurs who ran the vast Yalu river timber concession in Korea. The Yalu timber magnate A. M. Bezobrazov, a former officer of the elite Chevaliers Guards, used his personal connection with the Tsar to establish the Yalu as a platform for extending the Russian informal empire on the Korean peninsula. In 1901, the finance minister Sergei Witte reported that Bezobrazov was with the Tsar “no less than two times a week — for hours at a time” advising him on Far Easter policy. Ministers were exasperated by the presence at court of these influential outsiders, but there was little they could do to curb their influence. These informal links in turn drew the Tsar into an ever more aggressive vision of Russian policy in the region. “I do not want to seize Korea,” Nicholas told Prince Henry of Prussia in 1901, “but under no circumstances can I allow Japan to become firmly established there. That would be a casus belli.”
…On the eve of the Russo-Japanese War, then, one could say that the Tsar’s influence was up, while that of his ministers was down. But this state of affairs was short-lived, because the catastrophic outcome of the Tsar’s policy, sharply diminished his ability to set the agenda. As the news of successive defeats sank in and social unrest engulfed Russia, a group of ministers led by Sergei Witte pushed through reforms designed to unify government. Power was concentrated in a Council of Ministers, headed for the first time by a “chairman” or prime minister. Under Witte and his successor, P. A. Stolypin (1906-1911), the executive was shielded to some extent against arbitrary interventions by the monarch. Stolypin in particular, a man of immense determination, intelligence, charisma and tireless industry, managed to assert his personal authority over most of the ministers, achieving a level of coherence in government that had been unknown before 1905. During the Stolpypin years, Nicholas seemed “curiously absent from political activity”.
The Tsar did not acquiesce for long in this arrangement. Even while Stolypin was in power, Nicholas found ways of circumventing his control by making deals with individual ministers behind the premier’s back. Among them was Foreign Minister Izvolsky, whose mishandling of negotiations with his Austria-Hungarian counterpart triggered the Bosnian annexation crisis of 1908-1909. In return for Vienna’s diplomatic support over Russian access to the Turkish Straits, Izvolsky approved the Austrian annexation of Bosnia-Herzegovina. Neither Prime Minister Stolypin nor his ministerial colleagues had been informed in advance of this daring enterprise, which was cleared directly with Tsar Nicholas himself. By the time of Stolypin’s assassination by terrorists in the autumn of 1911, Nicholas was systematically undercutting his authority by supporting his political opponents. Confronted with a ministerial bloc that threatened to confine his freedom of action, Nicholas withdrew his support and intrigued against the men he had himself placed in power. Witte fell victim to this autocratic behavior in 1906; Stolypin would have done so if had not been killed, and his successor, the mild-mannered Vladimir Kokovstov, was removed from office in February 1914 because he too had revealed himself a devotee of the idea of “united government”. The years 1911-1914 saw a decline in united government and the reassertion of autocratic power.
Yet this autocratic power was not deployed in support of a consistent policy vision. It was used in a negative way, to safeguard the autonomy and power of the monarch by breaking any political formations that looked as if they might secure the initiative. The consequence of autocratic intervention was the not the imposition of the Tsar’s will as such, but rather a lasting uncertainty about who had the power to do what — a state of affairs that nourished factional strife and critically undermined the consistency of Russian decision-making.
Of the three imperial cousins, Wilhelm II was and remains the most controversial. The extent of his power within the German executive is still hotly disputed. The Kaiser certainly came to the throne intending to be the author of his country foreign policy. “The Foreign Office? Why, I am the Foreign Office!” he once exclaimed. “I am the sole master of German policy,” he remarked in a letter to the prince of Wales (the future Edward VII), “and my country must follow me wherever I go” . Wilhelm took a personal interest in the appointment of ambassadors and occasionally backed personal favorites against the advice of the chancellor and the Foreign Office. To a greater extent than either of his two imperial cousins, he regarded the meetings and correspondence with fellow dynasts that were part of the regular traffic between monarchies as a unique diplomatic resources to be exploited in his country’s interest. Like Nicholas II, Wilhelm frequently — especially in the early years of his reign — bypassed his responsible ministers by consulting with “favorites”, encouraged factional strife in order to undermine the unity of government, and expounded views that had not been cleared with the relevant ministers or were at odds with the prevailing policy.
It was in this last area — the unauthorized exposition of unsanctioned political views — that the Kaiser achieved the most hostile notice, both from contemporaries and from historians. There can be no doubt about the bizarre tone and content of many of the Kaiser’s personal communications in telegrams, letters marginal comments, conversations, interviews and speeches on foreign and domestic political themes. Their exceptional volume alone is remarkable: the Kaiser spoke, wrote, telegraphed, scribbled and ranted more or less continuously during the thirty years of his reign, and a huge portion of these articulations was recorded and preserved for posterity. Some of them were tasteless or inappropriate. Two examples, both of them linked with the United States, will serve to illustrate the point. On 4, April, 1906, Kaiser Wilhelm II was a dinner guest at the US embassy in Berlin. During a lively conversation with American hosts, the Kaiser spoke of the necessity of securing more space for the rapidly growing German population, which had counted around 40 million at the time of his accession, he told the ambassador, but was now around 60 million. This was a good thing in itself, but the question of nutrition was going to become acute in the next twenty years. On the other hand, large portions of France appeared to be under-populated and in need of development; perhaps one should ask the French government whether they would mind pulling their border back westwards to accomodate the surfeit of Germans? These inane burblings (which we can presume were offered in jest) were earnestly recorded by one of his interlocutors and forwarded to Washington with the next diplomatic bag. The other example stems from November 1908, when there was widespread press speculation over a possible war between the United States and Japan. Agitated by this prospect and keen to ingratiate himself with the Atlantic power, the Kaiser fired off a letter to President Roosevelt offering him — this time in all seriousness — a Prussian army corps to be stationed on the Californian coast.
…How exactly did such utterances connect with the world of actual policy outcomes? Any foreign minister or ambassador in a modern democracy who indulged in such grossly inappropriate communications would be sacked on the spot. But how much did such sovereign gaffes matter in the larger scheme of things? The extreme inconsistency of the Kaiser’s utterances makes an assessment of their impact difficult. Had Wilhelm pursued a clear and consistent policy vision, we could simply measure intentions against outcomes, but his intentions were always equivocal and the focus of his attention was always shifting. In the late 1890s, the Kaiser became enthusiastic about a project to create a “New Germany” in Brazil and “demanded impatiently” that migration to that region be encouraged and increased as quickly as possible — needless to say, absolutely nothing came of this. In 1899, he informed Cecil Rhodes that it was his intention to secure “Mesopotamia” as a German colony. In 1900, at the time of the Boxer Rebellion, we find him proposing that the Germans should send and entire army corps to China with a view to partitioning the country. In 1903, he was once again declaring “Lain America is our target!” and urging the Admiralty staff — who apparently had nothing beter to do — to prepare invasion plans for Cuba, Puerto Rico and New York, invasions plans that were a complete waste of time, since (among other things) the General Staff never agreed to provide the necessary troops.
The Kaiser picked up ideas, enthused over them, grew bored or discouraged, and dropped them again. He was angry with the Russian Tsar one week, but infatuated with him the next. There were endless alliance projects: for an alliance with Russia and France against the USA; with China and American against Japan and the Triple Entente, or with Japan and the USA against the Entente, and so on. In the autumn of 1896, at a time when relations between Britain and Germany had cooled following tensions over the status of the Transvaal, the Kaiser proposed a continental league with France and Russia for the joint defense of colonial possessions against Britain. At virtually the same time, however, he played with the notion of eliminating any cause of conflict with Britain by simply doing away with all the German colonies except East Africa. But by the spring of 1897, Wilheml had dropped this idea and was proposing that Germany should enter into a closer relationship with France.
…In January 1904, the Kaiser found himself seated next to the King Leopold of the Belgians (who had come to Berlin to celebrate Wilhelm’s birthday) at a gala dinner and used the occasion to inform Leopold that he expected Belgium to side with Germany in the event of a war with France. Should the Belgian king opt to stand with Germany, Wilhelm promised, the Belgians would gain new territories in norther France and Wilhelm would reward the Belgian king with “the crown of old Burgundy”. When Leopold, taken aback, replied that his ministers and the Belgian parliament would hardly accept such a fanciful and audacious plan, Wilhelm retorted that he could not respect a monarch who felt himself to be responsible to ministers and deputies, rather than to the Lord God. If the Belgian king were not more forthcoming, the Kaiser would be obliged to proceed “on purely strategic principles” — in other words, to invade and occupy Belgium. Leopold is said to have been so upset by these remarks that, when rising from his seat at the end of the meal, he put his helmet on the wrong way round.
…It was precisely because of episodes like that Wilhelm’s ministers sought to keep him at one remove from the actual decision-making process. It is an extraordinary fact that the most important foreign policy decision of Wilhelm’s reign — not to renew the Reinsurance Treaty with Russia in 1890 — was made without the Kaiser’s involvement or prior knowledge. In the summer of 1905, Chancellor Bernhard von Vulow entrusted Wilheml with the task of putting an alliance proposal to Nicholas II off the Finnish coast at Bjorko, only to find on the Kaiser’s return that Wilhelm had dared to make an alteration in the draft of the treaty. The chancellor’s response was to tender his resignation. Terrified at the prospect of being abandoned by his most powerful official, Wilheml immediately backed down; Bulow agreed to remain in office and the treaty amendment was withdrawn.
…An overview of the early twentieth-century monarchs suggests a fluctuating and ultimately relatively modest impact on actually policy outcomes. Emperor Franz Joseph of Austria-Hungary read vast quantities of dispatches and met with his foreign ministers regularly. Yet for all his stupendous work as the “first bureaucrat” of his empire, Franz Joseph, like Nicholas II, found it impossible to master the oceans of information that came to this desk. Little effort was made to ensue that he apportioned his time in accordance with the relative important of the issues arising. Austro-Hungarian foreign policy was shaped not by the executive fiats of the Emperor, but by the interaction of factions and lobbies within and around the ministry. Italy’s Victor Emmanuel III (r. 1900-1946) worked much less hard than Franz Joseph — he spent most of his time in Piedmont or on his estates at Castelporziano and, though he did make an effort to get through some diplomatic dispatches, he also spent around three hours a day reading newspapers and meticulously listing the errors he found in them. The Italian king cultivated close relations with his foreign ministers and he certainly supported the momentous decision to seize Libya n 1911, but direct interventions were few and far between. Nicholas II could favor this or that faction or minister and thereby undermine the cohesion of government, but was unable to set the agenda, especially after the fiasco of the Russo-Japanese War. Wilhelm II was more energetic than Nicholas, but his ministers were also better able than their Russian colleagues to shield the policy-making process against interventions from above. Wilhelm’s initiatives were in any case too disparate and ill coordinated to provide any kind of alternative operational platform.
Whether or not they intervened aggressively in the political process, the continental monarchs nonetheless remained, by virtue of their very existence, an unsettling factor in international relations. The presence in only partially democratized systems of sovereigns who were the putative focal points of their respective executives with access to all state papers and personnel and with ultimate responsibility for every executive decision created ambiguity. A purely dynastic foreign policy, in which monarchs met each other to resolve great affairs of state, was obviously no longer apposite — the futile meeting at Bjorko proved that. Yet the temptation to view the monarch as the helmsman and personification of the executive remained strong among diplomats, statesmen and especially the monarchs themselves. Their presence created a persistent uncertainty about where exactly the pivot of the decision-making process rested. In this sense, kings and emperors could become a source of obfuscation in international relations. The resulting lack of clarity dogged efforts to establishing secure and transparent relations between states.
…The king or emperor was the sole point at which separate chains of command converged. If he failed to perform an integrating function, if the crown failed to compensate for the insufficiencies, as it were, of the constitution, the system remained unresolved, potentially incoherent. And the continental monarchs often did fail in this role, or rather they refused to perform it in the first place, because they hoped by dealing separately with key functionaries within the executive they hoped to preserve what remained of their own initiative and preeminence within the system. And this in turn had a malign effect on decision-making processes. In an environment where the decision reached by a responsible minister could be overridden or undermined by a colleague or rival, ministers often found it hard to determine “how their activities fitted into the larger picture”.
Reasonable people often seem to think that resolving the ambiguities of the constitution is an issue with little practical value, or the value is too far in the future to be worth the effort. Certainly, the dangers of constitutional uncertainty can be managed as long as a political system is gifted with strong and intelligent leadership. But reasonable people are secretly unreasonable when they allow short-term crisises to forever delay the moment when the constitution is resolved. Unimaginable horror, war and death, are the punishment for waiting too long. The real pragmatists are the ones who spend their political capital on the seemingly unrewarding subject of constitutional reform.
Over the centuries, when people have praised the liberal spirit of the West, the thing they have most often been thinking of is the absence of arbitrary action. But if a nation lacks a consistent fundamental law, which is to say if it lacks a consistent constitution, then all actions in that society must be arbitrary, as they have no consistent base. Therefore a liberal society is one that keeps its constitution in line with its actual needs, and any society that fails to do so can only offer at best a simulation of due process. A liberal society that allows its actual constitution to grow distant from its formally ratified constitution is a society that is secretly illiberal, and is only one crisis or demagogue away from becoming formally illiberal, as happened in Hungary. The USA should follow a wiser path, and that means that massive changes to the constitution are urgently needed.Source