skip to Main Content

The Ascendancy of Crown Government in the U.S.

The Ascendancy Of Crown Government In The U.S.

The Once and Future King: The Rise of Crown Government in America. F.H. Buckley. New York: Encounter Books, 2014.

 

A national book chain in Canada has as its (parochial and somewhat defensive) motto “The World Needs More Canada.” One hopes they will be stocking many copies of Frank Buckley’s engaging and lively new book since it easily could be subtitled “The United States Needs to Be More Like Canada.” Buckley’s thesis is that America has been poorly served by its choice of presidential government over the parliamentary form. At first, this appears a staggering suggestion: as the sole remaining ‘superpower’ worthy of the name, and the economic engine of the postwar economy, surely the U.S. style of government warrants praise and emulation, not derision. Buckley does not deny the national triumphs of the United States, but he argues its achievements were arrived at in spite of the gridlock-enabling and executive-dominated model of governance, not because of it.

As far as executive dominance is concerned, Buckley traces “the long arc of American constitutional government” as moving from “monarchical” government in the colonial period to “congressional government” then to “the separation of powers” and finally back to “Crown government and rule by a single person.” Hence his title, “The Once and Future King.” Over the same period, Buckley identifies a similar but differently ordered progression in British and Canadian constitutional history: Crown government giving way to a separation of powers and then to “legislative government” by “an all-powerful House of Commons” before finally arriving at its own centralization of executive power. So while Canada has also seen the rise of executive dominance, Buckley argues that its parliamentary system, being less subject to gridlock, works better, especially nowadays.

It is a strange and refreshing experience to be a Canadian reader of this book, which is primarily aimed at Americans, since it presents the Canadian constitutional framework so favourably. While the 1982 Charter of Rights is regularly celebrated, domestic constitutional scholarship regarding our governing institutions tends to be sharply critical, usually calling for substantial reform or evincing a grudging acceptance of a lamentable status quo. Indeed, recent titles suggest that Canadians need to recognize the “Tragedy of the [House of] Commons” and “Democratize the Constitution.” The central target of these critiques is excessive executive-domination. In Buckley’s book, by contrast, the “winner-take-all government of parliamentary systems” is prized for its ability to transcend the gridlock built into the American version of separated powers. Compared to the immovable and deadlocked American system, Canadian government is spry and nimble. In terms of simply enacting laws, Buckley observes that “[g]etting legislation passed or repealed in America is like waiting for three cherries to line up in a Las Vegas slot machine… in a parliamentary system, one needs only one cherry from the one-armed bandit.” Canadians will be shocked to hear how responsive and adaptive their governing institutions are, but Buckley is right in drawing the comparison to the U.S., where legislative inertia often prevails even when the same party controls both the House, the Senate and the Presidency.

Canadians have the edge when it comes to public debate too, especially when it comes to Question Period. As Buckley argues, Americans would likely benefit from daily exchanges between the government and its opposition. We sometimes hear of politicians “living in the bubble” – Vice President Cheney, for example, required hotels he was staying at to preset the televisions to Fox News – and Question Period in Canada punctures this by ensuring that critical words reach the eardrums, if not necessarily the minds, of those of in power. As Buckley notes, it also helps prevent prime ministers from being “idolized or revered,” leaving them more often as “figures of fun… or the butt of slanging matches.” The modern U.S. President, by contrast, is the centre of a number of “republican” state ceremonies that “mimic those of royalty,” including the “quasi-regal” State of the Union address, one of the few occasions where the President speaks directly to legislators but with no interaction and always fully scripted. In an amusing aside, Buckley wonders how American political figures would have fared in a parliamentary system. While lions of the legislature like Daniel Webster and Daniel Patrick Moynihan might have achieved greater power, a parliamentary system would have impeded “the ill-informed (Eisenhower), inarticulate (George W. Bush), thin-skinned (Nixon), and grandiose (Obama).”

While the virtues of parliamentarianism are real and often underappreciated, one might wonder whether Buckley overestimates them as they currently exist in Canada and whether he is perhaps overselling the Canadian case to his American readers. When Buckley emphasizes the spirited debate that can occur in Parliament, he tends to refer to the British House of Commons and not the Canadian one, save for a seven-page excerpt of the 1956 pipeline debate. In Canada today, it is commonplace to hear gripes about the lack of serious legislative debate, with Members routinely speaking past one another (Parliamentary Secretary Paul Calandra, in particular, has made an art of the non sequitur) and backbench members of the governing party often asking embarrassingly praise-laden questions of Ministers. With very strong party discipline – an oft-cited dysfunction of the parliamentary system that “Once and Future King” discusses only in passing – Canadian citizens rarely see policy demonstrably justified or effectively challenged; legislative proceedings are more Kabuki theatre, a symbolic representation of the decision-making and politics that occurs off-stage. For all of its open conflict and strife, the relationship between the U.S. executive and legislature is at least semi-transparent. In parliamentary systems, trade-offs or compromises are often opaque and consensus is typically forged through the incentive of career advancement or by the threat of expulsion from the caucus.

Overwhelming party discipline is typically portrayed as the central element in Canada’s most discussed institutional shortcoming: the executive-domination of the legislature. For the most part, Buckley approves of Canada’s energetic executive, which in his view might have even satisfied the most monarchical of the American Founding Fathers: “Hamilton would unquestionably have preferred the BNA Act to the Framer’s Constitution.” Still, Buckley recognizes that executive dominance is “like a virus that attacks different people, with different constitutions, in different countries at the same time.” In Britain, Canada and the U.S., all formal limits on executive power have yielded to three powerful forces, according to Buckley: the tendency of power to localize around an individual instead of a group; a pervasive media that “has made a star of the executive, at the expense of the legislature”; and, finally, the growth of the regulatory state, with its preference for vague legislative guidelines implemented by executive actors with vast discretionary powers. Buckley convincingly argues that the current American system of “strong” presidential government means “the president makes and unmakes law without the consent of Congress and spends trillions of government dollars; and the greatest of decisions – whether to commit his country to war – is made by him alone”. Here, the Canadian one-armed bandit potentially pays out; with an easier path to the passage of legislation, the powerful executive has more reason to exercise power within that process than in seeking ways around it. In essence, the American separation of powers has placed so great an obstacle to the expression of power through legislation that it has encouraged presidents of all parties to do whatever they can to avoid those checks-and-balances. And as Buckley demonstrates, what they can do without legislation is already considerable, rapidly increasing and thus poses a real threat to liberty.

In the broader comparative perspective, the argument that the parliamentary system is better positioned to mitigate the excesses of executive-domination is difficult to evaluate. Buckley uses a number of metrics and the overall impression is convincing. Still, when individual practices are placed under the microscope, they prove somewhat slippery. It is true, for example, that the convention of responsible government making the budget a confidence measure allows the executive to present a complete, synoptic budget, certainly a markedly better process than the American practice of allowing for decentralized “earmarking” of funds by individual representatives. However, the difference can be overstated. The current Government of Canada has made a regrettable habit of passing “omnibus” budget packages that contain entirely unrelated provisions simply to ensure they are not considered on their own merits. While this abuse of the legislative process might be more palatable than congressional earmarking, simply because it is coordinated by a single actor rather than five hundred and thirty-five potential pork-seekers, it is not all that comforting from the perspective of representative and rational governance. In any case, Buckley spends little time exploring how parliamentary systems might better address the challenges of executive dominance since he is ultimately focused on the American predicament.

In the American context, Buckley dismisses the claim made by Eric Posner and Adrian Vermeule that the high level of education and income mobility of the American citizenry means that presidents who exceed their authority will be punished at the ballot box. Similarly, Buckley does not hold out much hope that the constitutional checks on executive power can be reenergized by enlightened Supreme Court judgments. Courts have gotten it wrong, according to Buckley, both when they have weakened and strengthened the executive (there are instances, he tells us, like the line-item veto, where the Court might have reasonably have strengthened executive power). Excessive executive power is “likely a permanent feature of American government,” according to Buckley, and “unlike in Britain and Canada, it cannot be reversed without changes to an extremely inflexible Constitution.”   In the final chapter, Buckley offers some solutions “short of amending the constitution (or waiting for a revolution in Supreme Court jurisprudence)” and suggests the use of direct democracy on national issues, changes in congressional procedures and more frequent use of impeachment to rebalance the executive-legislative relationship. Each proposal reflects – in at least a fun-house mirror fashion – a Canadian practice: the national referendum on the Charlottetown Accord, the dictates of responsible government, and especially the requirement that the executive retain the confidence of the House of Commons. While the direct democracy connection is tenuous at best, the idea that Americans could learn much from the Canadian model of responsible government is a compelling one.

Finally, although Buckley’s comparison of American and parliamentary constitutionalism has great value, his conventional presentation of them as “two different models for democratic self-government, one with a separation of powers and one without,” may be questioned. As Buckley is well aware, “separation of powers” is an amorphous concept open to a variety of particularizations. Although some domestic scholars deny it, Canada most certainly has a separation of powers, even though it hews closer to the British particularization than the American variant. Canadian Responsible Government, which Buckley accurately describes in some detail, presumes just such a separation of power; otherwise the executive could not be said to be responsible to the legislature. A separation of powers – if not the separation of powers – is baked into all the progeny of British constitutionalism. After all, it is the British Constitution, the model for Canada’s, which Montesquieu praised as best protecting liberty through a separation of powers that inhibits the ‘enactment of tyrannical laws, executed in a tyrannical manner.’

So why does Buckley suggest the absence of a separation of powers in Canada and Britain? Like many others, he implies that the supposed “fusion” of the executive and the legislative branch disqualifies it from bearing the label. It is a separation too thin or too soft to treat seriously. Although Buckley is right to invoke the Bagehotian “efficient secret” of British Constitutionalism – allowing for the Cabinet to buckle the executive and legislature together – it is a mistake to suggest that the parliamentary system is devoid of a separation of powers along Montesquiean lines. While the formal separation may not be as visible in daily political controversies, it lies latent and ready to exert its force in situations as ordinary as periods of minority government and as extraordinary as a constitutional crisis. As M.J.C. Vile noted, the parliamentary system falls short of a “pure” separation of power, but so too does every other system, including the American variant, since a truly “pure” implementation would not allow for any inter-branch interaction whatsoever. Even the American system, as James Madison explained, involved the “partial agency” of each branch in the affairs of the others. What Buckley is really doing is comparing one way of checking and balancing separated powers with another; with this important qualifier, his argument that Canada and Britain have struck a better balance is convincing.

“Once and Future King” is an effective cure for U.S. constitutional myopia and an invitation to even more comparative study. In this regard, the epigraph to the book, from Thomas Paine, is instructive: “The prejudice of Englishmen, in favor of their own government… arises as much or more from national pride than reason.” By reasoning about his own government, Buckley has encouraged us all to resist easy patriotism and instead engage in a global conversation about good governance and how to best ensure it.

Dennis Baker

Dennis Baker is Associate Professor of Political Science at the University of Guelph in Canada. He is author Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation (McGill-Queen's, 2010).

Back To Top