The Survival of Presidentialism in America: Para-constitutional Practices

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International Political Science

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DOI: 10.1177/019251218800900401

1988 9: 247International Political Science ReviewFred W. Riggs

The Survival of Presidentialism in America: Para-constitutional Practices

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247-

The Survival of Presidentialism in America:Para-constitutional Practices

FRED W. RIGGS

ABSTRACT. Ubiquitous episodes of military rule in some 33 presidentialistregimes modeled on that of the United States suggest that it may not be thecontext but rather faults in this type of constitution that predispose it tobreakdowns. If this premise is correct then we need to explain why, despiteits fragility, the American Constitution has survived for 200 years.

Separating systemic from contextual factors, we look for "para-constitutional" practices, i.e. those that are a prerequisite to systemsurvival, even if they are not included in the written Constitution.

Presidentialism: A Problematic Regime TypeOn 25 May, 1787 a quorum of seven states (out of 13) having been obtained, theConstitutional Convention started 100 days of debate, in Philadelphia, producingagreements on an American Constitution that remains in effects to this day. On 25May, 1987 the city of Philadelphia opened a six-month celebration of this historicevent. Thomas Ferraro of United Press International reported from that city thatevery state in the USA would celebrate &dquo;to salute the enduring document, which hasserved as a model for national constitutions around the world&dquo; (Honolulu Advertiser, 25May 1987: A-8).

Ferraro’s journalistic euphoria mirrors the complacency of most American politicalscientists who tend, similarly, while analyzing the experience and problems ofgovernance in America, to take for granted the essential viability of its constitutionaldesign. They sometimes complain about the racism and sexism supported by theFounders, but they regard the longevity of the system as irrefutable evidence of itssuperiority and its export value as a model for emulation by would-be democracies. IfAmerican politics were to be studied within the context of comparative politics,however, such complacency could not be defended.

A Parochial AgendaSad to say, most Americanists know little, in depth, about other systems of

government, and American comparativists typically ignore American politics.Without further inquiry I dare not say that this limitation applies to compantivistsworking outside the United States. However, I submit that comparisons based on thehigher survival rate of Third World regimes which emulate &dquo;parliamentary&dquo; and

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248

&dquo;one-party&dquo; models as compared with the disasters universally experienced by thosewho follow the American model do raise fundamental questions that are almostalways ignored. American political scientists usually start their inquiries by studyingissues that appear on the agenda of the American Congress, President, courts andpolitical parties. Although this agenda sometimes includes complaints about theConstitution, it rarely challenges the basic viability of the system, or it directsattention to marginal changes-e.g. amendments (the 14th and 15th) designed toovercome its original blindness to slavery and current proposals to enhance the statusof women by adopting an &dquo;Equal Rights Amendment.&dquo;When Americanists analyze the Constitution, as they do in the opening chapters of

any textbook on American government (e.g. Burns and Peltason, 1960; Greenberg,1980; Harris, 1986; Lowi, 1976; Pious, 1986; Rodgers and Harrington, 1985;Weissberg, 1980), they focus on issues debated by the &dquo;founding fathers,&dquo; or theyanalyze the class, racial and sexist biases inherent in the design. Although they oftentake up problems of interpretation, they ignore fundamental constitutional questionsthat contemporary comparative studies might raise. When they do compare theAmerican regime with alternative models, they seek to explain the differences-ourperhaps to register a preference for the British system-but never, I believe, to

explain why the American Constitution survives.

A Terminological ObstacleOne apparent reason for this blindness may be terminological. We lack a simple termto characterize the most basic feature of the American Constitution; it has been calleda &dquo;federal&dquo; system, a &dquo;republic,&dquo; a &dquo;democracy,&dquo; a &dquo;presidential&dquo; regime. Theseterms name properties of the American system that it shares with some other regimes,but none of them identifies the key property that comparative analysis highlights. Theclosest, for our purposes, is presidential, but this word has several possibleconnotations.

&dquo;Presidential&dquo; is used, simplistically, for any regime whose head is called a

president. Some parliamentary constitutions, such as those of most Europeanrepublics, are &dquo;presidential&dquo; in this sense as distinct from constitutional monarchies.&dquo;Presidential&dquo; may refer to regimes in which the president is popularly, not

indirectly, elected. France under the Fifth Republic is presidential in this sense, but asits recent history shows, it remains essentially parliamentary. A third sense of&dquo;presidential&dquo; is a regime in which the president plays a strong leadership role,serving as the &dquo;keystone&dquo; of the polity. However, since there have been many weakAmerican presidents, the United States has only intermittently been presidential in thissense.

A fourth sense of &dquo;presidential&dquo; is the only one relevant to this discourse, namely:the notion of a regime-type (constitution) which provides for the power of the head(president) to be exercised independently of the elected assembly (congress). Theexpression &dquo;separation of powers&dquo; is distinctive: the independence of the president isbased on a constitutionally stipulated term of office, and the congress has an equallyautonomous term. Neither can, therefore, constitutionally remove or dissolve theother. (The impeachment of a president does not contradict this rule since it is onlyfor misconduct, not reasons of public policy and, of course, it does not bring theopposition party to power.) To be clear, I use presidentialist to mean a presidentialsystem of this type.’




249

A Flawed PrescriptionOne starting-point for analysis might be the proposition that some 33 Third Worldcountries (but only one in the First or Second!) have adopted presidentialistconstitutions. Almost universally these polities have endured disruptive catastrophes,usually in the form of one or more coups d’6tat whereby conspiratorial groups ofmilitary officers seize power, suspend the constitution, displace elected officials,impose martial law and promote authoritarian rule: recent examples in Korea, SouthVietnam, Liberia and many Latin American countries come to mind. Sometimes anelected president dissolves congress and rules by martial law, as Ferdinand Marcosdid in the Philippines. Very exceptionally, a popular revolution terminates a

presidentialist regime, as in Nicaragua. No country following a presidentialist model,except the USA, has been able to avoid at least one such disruptive experience. Inmany, the disruptions are frequent (Riggs, 1985: 34). 2By contrast, almost two-thirds of the Third World countries which adopted

parliamentary constitutions, usually based on British or French models, havemaintained their regimes and avoided the disruptions typical of all American-typesystems (Riggs, 1985: 32).3 This does not mean that they were well governed but onlythat somehow they were able to avoid military domination. It also means thatone-third of these polities did experience military interventions. No doubt otherfactors were also important. However, I doubt that cultural pecularities explain whysome parliamentary regimes survive and others collapse. A more significant factor isthe relatively great power of career bureaucracies (military and civil) in many newstates by contrast with the weakness of their institutions for self-government.

Incidentally, the democratic constitutions found in Western Europe, all of whichwere established after the American Revolution, uniformly rejected presidentialism infavor of some kind of parliamentarism. No doubt parliamentary systems have theirown inherent weaknesses, especially when they become highly polarized by themultiplication of parties. The purpose of this inquiry, however, is not to comparepresidentialist with parliamentary regimes, but only to use such comparisons tohighlight features of the American system that have contributed to the survival of itsconstitution.

Third World polities which opted for one-party regimes, following the Sovietmodel, have perpetuated their systems even more successfully than have the

parliamentary types (Riggs, 1985: 37).4 Mere survival, of course, is not the onlyimportant consideration and we much prefer multi-party competition to one-partyconformity. Nonetheless, it is important to understand why one type of democraticconstitution works so much better than another in Third World countries-and whya system that works so wretchedly elsewhere has nevertheless survived in the UnitedStates.

Explaining Failures and Successes

Although American political scientists are well aware of the many catastrophesexperienced by other presidentialist regimes, especially in Latin America, theyusually look for external variables to explain them-cultural or religious differences,educational and economic levels, ethnic problems, imperialism or dependency. Theyscarcely consider the relative success of parliamentary regimes, or even of single-partyregimes, as evidence of the basic fragility of presidentialist systems based on theAmerican model.




250

Insofar as similar contextual and environmental conditions prevail in all ThirdWorld countries, students of comparative politics might have asked why some regimetypes are much more unsuccessful than others. This question might also have ledthem to ask: &dquo;If presidentialism works so badly elsewhere, why has it neverthelesssurvived in the United States for 200 years?&dquo; Moreover, if we could discover thereasons for the American &dquo;success,&dquo; this might help us identify some variables thataccount for the failures in other presidentialist countries.Two general kinds of explanation are needed. One is environmental, or contextual,

and the other is systemic. A good example of a contextual variable is the legal cultureof a society-thus common law prevails in the USA, whereas codified civil law isnormal in Latin America. Some say that North American culture is more conduciveto conflict management and Latin culture more likely to accentuate

confrontations-but this is surely an oversimplification. The Roman CatholicChurch was established in most Latin American countries, whereas Protestantismand the separation of Church and State became the norm in the United States. Theopen frontier and opportunities for social mobility available to Americans contrastwith the more aristocratic or quasi-feudal social structure found in other

presidentialist regimes. Do such differences explain success or failure? No doubtmany contextual/environmental variables and historical accidents helped the fragileAmerican presidentialist constitution survive. But can we prove that they werenecessary-even if not suflicient-conditions for the survival of the Americanconstitution?A more fruitful line of inquiry, especially in a short article, may evolve if this

analysis is limited to systemic variables because they might be substantiated bycomparative inquiry. By investigating the failures of presidentialist regimes it may bepossible to discover if their breakdowns were linked with the lack of systemic featureswhose presence may be viewed as part of the explanation for the survival of theAmerican system.

Although the focus of this article is on the American Constitution, its real goal is topromote a new (institutionalist) mode of comparative government that explicitlyincludes both American and non-American systems. We need to transcend the

existing dichotomy between research on the Third World and studies of theindustrialized countries, and we must overcome the ethnocentric assumption that theAmerican formula for democratic self-governance can and should be emulatedelsewhere; but we must also remain humble, for even the best predictions arenecessarily flawed by chance happenings. Let us hope that we can establish someprobabilities even if we cannot demonstrate any certainties.

Systemic VariablesThe variables in any regime that belong to its constitution are systemic. I use this wordin its minimal sense of a set of interacting and interdependent parts. These partsinclude the basic rules governing political behavior and the authoritative allocation ofvalues, whether or not they are written out in a charter.When one speaks of an unwritten &dquo;constitution,&dquo; as in the British case, this is what

one means. However, because written Constitutions (charters) play such an

important part in the design of contemporary regimes, we are easily confused. Tokeep the two concepts distinct, I use &dquo;Constitution&dquo; or &dquo;charter&dquo; to mean a written

document, as formally amended and interpreted by judges; whereas &dquo;constitution&dquo;




251

will be used for any set of basic rules and practices governing political conduct,whether written or not. I also use &dquo;regime&dquo; in a special sense, to designate a politicalsystem characterized by a constitution, i.e. &dquo;the structure of political forms&dquo;

(Lasswell and Kaplan, 1950: 130). The actual practices of those who rule may or maynot conform to constitutional prescriptions; regime collapse in most Third Worldcountries results from the seizure of power by military groups.5The survival of a regime depends not only on the viability of its written charter but

also on the force of its unwritten prescriptions. I argue that some necessary features ofthe American constitution are not prescribed in its Constitution. Thus the survival ofa presidentialist regime may be possible only if some rules not expressed in its charterare followed. Most writers on the American government, I believe, tend to think ofthese rules as optional practices or historical accidents rather than as necessary partsof the constitution. However, if these norms are essential to the survival of theAmerican constitution, then they should be viewed as part of it, not as incidentalpractices.

In my &dquo;systemic&dquo; analysis, I speak of all the necessary features of Americanpresidentialism, whether or not they are formally embodied in its writtenConstitution, as its para-constitutional rules. Some para-constitutional features areprescribed in the Constitution, but their importance for the survival of

presidentialism is not well recognized. I cannot, therefore, use the term &dquo;unwrittenconstitution,&dquo; since parts of the American para-constitution can be found in itswritten Constitution. After considering several possible synonyms, I decided to usepara-constitution.6 6

Para-Constitutional featuresThose who write presidentialist Constitutions are well aware of all the features

explicitly prescribed in the American Constitution but, like Americans, they fail torecognize its (invisible) para-constitutional features and, like Americans, they mayview them as historical accidents or undesirable options. Some of these features areadmittedly costly since they violate some fundamental democratic values, as we seelater. However, if they are necessary survival costs, omitting them condemnswould-be presidentialist regimes to failure.Two kinds of comparisons help uncover the para-constitutional features of the

American constitution. First, one can discover through case studies when the absenceof a para-constitutional norm contributes to the collapse of a presidentialist system.At this stage I can offer only reasonable suspicions, and cannot be sure which featuresof American politics are really para-constitutional. Empirical research outside theUnited States should, however, strengthen or disconfirm these guesses. Second,comparisons with parliamentary systems will reveal what makes them work betterthan presidentialist ones. One can discover, thereby, some of the main pitfalls in anypresidentialist regime, and also highlight, by contrast, the compensatory (para-constitutional) features that permit it to survive in the USA.

In the next section I first discuss the essential distinctions between a

&dquo;presidentialist&dquo; and a &dquo;parliamentary&dquo; constitution, from which I then identify themost important problems or difficulties confronted by any country that emulates theAmerican presidentialist model. The remaining sections of this article speculateabout the para-constitutional (systemic) features of the American constitution thatmay help explain its survival. I should emphasize that this approach by no means




252

condemns presidentialism as a &dquo;bad&dquo; system. Like a piece of intricate machinery, itmay be hard to maintain but wonderful when it works. The system surely hastrade-offs: its best features produce exciting rewards but its worst features entailsevere costs. (Non-systemic contextual and environmental features of NorthAmerican geography, history and culture are needed for a fuller explanation, as notedabove, but lack of space prohibits their discussion here.)

The Comparative FrameworkA state qualifies as a &dquo;modern polity&dquo; only if it institutionalizes elected assemblies inaddition to its executive institutions.7 Moreover, modern polities can maintain anopen political system, only if their elected assemblies exercise genuine power. Suchpower both results from and supports a competitive party system.’ Bothparliamentary and presidentialist constitutions prevail in modern open regimes.Their survival depends on maintaining a balance between: ( 1 ) a politically powerfulelected assembly, and (2) an executive power (head) that is capable of governing.Structurally, the former must consist of a plurality of individuals able to make

unpredictable decisions, after debate, by taking votes. The latter requires that oneperson have the capacity and administrative support needed to make importantpolitical decisions promptly and clearly, after taking competing forces andconsiderations into account.

&dquo;Presidentialist&dquo; vs. &dquo;Parliamentary&dquo; ConstitutionsThe coexistence of two such complementary but potentially contradictory institutionsin the same polity generates a serious problem: how to accommodate them to eachother. Single-party regimes do not have this problem because the elected assemblycan only support the head and hence lacks autonomous power.Where assemblies have power, two solutions are found: the &dquo;parliamentary&dquo; and

the &dquo;presidentialist.&dquo; The crucial difference is whether or not the head of governmentcan be replaced by an assembly vote. When the head of government must followpolicies approved by parliament and cannot remain in office after a vote of noconfidence, we have a parliamentary regime. By contrast, when the head retains officedespite congressional opposition, the regime is presidentialist. Such heads can blockthe enactments of congress (as by a veto) and often execute policies not endorsed bythe assembly: although not the essence of presidentialism, these are its natural

consequences and they pose severe problems that are not easily solved. However, thepara-constitutional norms found in America permit solutions to these problems,though never without strain.

Dilemmas of PresidentialismIn any presidentialist constitution the separation of the powers of the President(head) and the Congress (assembly) generates at least four basic problems: (1)executive/legislative confrontations; (2) paralysis of the assembly; (3) weaknesses ofthe party system; and (4) the politics of the court. Comparative analysis will show, Ibelieve, that one or all of these difficulties has led to the collapse, especially by coupd’6tat and martial law, of more than 30 presidentialist regimes outside the USA.




253

Moreover, these four key obstacles to the survival of presidentialist regimes scarcelyarise as major issues in parliamentary systems.We need to distinguish between those parts of the American Constitution that are

necessary for its survival as a presidentialist regime, and others that could be changedwithout significance for the regime type. For example, its rule for the indirect electionof presidents via an electoral college reflects a political compromise that has little orno meaning today, nor has it any apparent para-constitutional value. Toughprovisions for amending the Constitution may hamper its adaptability to changingconditions, and one might argue that easier rules for revising the charter wouldfacilitate the survival of presidentialism.A presidentialist system may be federal or unitary. The American Constitution

provides for a federal distribution of power, and although this provision appears tohave no para-constitutional significance, I try to show that a federal-presidentialistsystem has a much greater survival potential than a unitary-presidentialist system. Icannot analyze all the interesting features of the American Constitution here,however; instead I focus on some para-constitutional features that contribute to thesurvival of presidentialism in America, whether or not they are stipulated in thewritten Constitution. No doubt there are others.

Exemtive/Legislative ConfrontationThe most critical contradiction found in a presidentialist regime, by definition, is thestructural antagonism between its head and its elected assembly, since each has afixed term of office and neither can suspend the other for political reasons withoutviolating the constitution. The impeachment power granted to Congress in theAmerican Constitution does not violate this rule since it involves only illegal orunconstitutional acts rather than public policies disapproved by the congress, andeven a successful impeachment would only replace the president by another memberof the same political party. Although the president can veto acts of congress, such aveto stands only when at least a third of the members of congress vote to sustain it,and the loss of a veto does not compel the head to resign, as no-confidence votes do inparliamentary systems. Although the American Constitution stipulates a distinctionbetween &dquo;Legislative&dquo; and &dquo;Executive&dquo; powers, these functions overlap so much thatgovernance is feasible only when both the president (head) and congress (assembly)can agree on important political issues.~

9

By contrast, in parliamentary systems, the head (prime minister) and the cabinet(i.e. the &dquo;government&dquo;) can be discharged by a vote of no confidence, or the headmay dissolve the assembly (parliament) and conduct new elections. As in a

presidentialist system, there is continual tension between head and assembly, but thistension does not paralyze the regime because, when it becomes acute, it can beresolved by a &dquo;cabinet crisis.&dquo; In a parliamentary system, therefore, the terms ofoflice of head and assembly cannot be fixed, but have to be held indeterminately,always subject to termination on short notice.No doubt these ground rules are familiar to all political scientists, but their

implications for the survival of presidentialism in the United States have not beenexamined by American political scientists. At least they have not explained howhead/assembly (executive/legislative) confrontations are resolved in the Americansystem when, by contrast, they so often destroy other presidentialist polities.




254

Paralysis of the AssemblyThe responsibilities thrust upon &dquo;congress&dquo; in a presidentialist system far exceedthose that burden &dquo;parliament&dquo; in a parliamentary system. A congress must make upits own collective mind on all major issues, independently of the recommendations ofthe president. Moreover, members of congress who reject a president’s recommen-dations may not suffer much, but they may lose their seats if they flout the preferencesof their electoral constituencies or those who fund their campaigns. Consequently theagenda of a congress becomes both vast and highly controversial, often leading toparalysis.By contrast, the agenda of a parliament is quite restricted. Since rejecting the

government’s recommendations (in a vote of no confidence) can cause a cabinetcrisis, there are serious political costs for voting against one’s party. Members of themajority party (or coalition) need to accept government policy and minority membershave to reject it. No doubt serious parliamentary debates on major policies occur and,in the final test, votes of no confidence are possible. The point is that the

parliamentary agenda is relatively simple and manageable by contrast with theagenda of a congress, and there is little danger of paralysis.

Dissolution of Political PartiesTo be successful in a presidentialist polity, a political party must win a nationalmajority of all votes cast in presidential elections. (Insofar as members of congress areelected in single-member districts, the normal situation, winning parties must alsocommand a majority in these elections.) In view of the great heterogeneity of popularinterests and passions in any society, it is always difficult to win an electoral majorityfor any one candidate. That candidate (and his or her party) must straddle most ofthe controversial issues of the day, and must have a personal style and character thatappeals to a popular majority-the appearance, charm, inoffensiveness, voice, moralcharacter and ethnicity of candidates may be more important than the issues theychoose to debate.

Because of the resources available to incumbents, it is always easier to winre-election campaigns than it is to mobilize opposition votes. Consequently one of themost serious obstacles to the perpetuation of an open presidentialist system arisesfrom the problem of how to sustain a viable opposition party. Normally the opponentsof any existing government form splinter parties representing a wide spectrum ofpositions and personal followings. They cannot coalesce into the kind of centristcoalition capable of winning a popular majority. Although the difficulties inherent inthe organization of opposition parties in presidentialist polities are very noticeable,even government parties experience many problems; their leadership is dividedbetween the executive, legislative and judicial branches, and their need to straddlemajor issues dilutes their appeal, not only to ordinary voters but also to potentialactivists.These problems become more obvious when one considers, by contrast, the

dynamics of political parties in parliamentary systems. First, they do not need towin a national majority insofar as only members of parliament from the electiondistricts have to be chosen. Moreover, if multi-member districts are used, parties maysucceed politically even when they never command a popular majority. Israel is anextreme case, with only one national constituency for Knesset elections. Because




255

parliamentary parties can adhere to well-defined policies and socially articulatedconstituencies, they can also enjoy the sustained loyalty of regular party members andvoting blocs.

Put differently, political coalitions may occur in a parliament after elections havebeen held, whereas in a presidentialist system they must be formed prior to electionsin order to assure a majority vote. This makes it much easier to organize andperpetuate political parties, including opposition parties, under parliamentary rulesthan under presidentialist ones. This difference also enables parties in a

parliamentary regime to perform many more functions than those that are viable forparties in a presidentialist system, including services specifically designed to sustainmembership and voter loyalties.

The Politics of the CourtBecause of the inherent conflict between the powers of the president and the congress,it is difficult to maintain presidentialist ground rules. Both the president and thecongress will try to shift the balance of power and decision-making. To maintain thesystem, therefore, a kind of political &dquo;umpire&dquo; is needed. Such an umpire in theAmerican system is embodied in the Supreme Court and, indeed, in the wholejudicial system of subordinate courts. For the courts to exercise this umpiringfunction they must be politically shrewd enough not to discredit their authority or toimpose onerous duties on the president or congress, and they must commandexceptionally broad popular support. In effect, they truly must form a &dquo;third branch&dquo;of government, as prescribed in the American Constitution. In many presidentialistregimes the courts are not able to exercise this umpiring function effectively.By contrast, great judicial power is scarcely needed in other types of regime. In a

single-party regime, of course, the ruling party not only governs but it can easilychange the constitution and so no umpire is needed. No doubt, in parliamentarysystems, especially when there is a written Constitution, a court capable ofconstitutional review is necessary.10 However, since parliament can discharge agovernment, and the electorate can reconstitute the assembly, the ultimate judge ofthe constitution is the people rather than a court. Moreover, the assembly in aparliamentary system-especially with an unwritten constitution, as in

England-can amend the constitution by the same majority used to enact ordinarylaws. Hence there is little need for judicial review. No such authority can be given tothe congress in a presidentialist system. If congress were to be given the authority toamend the constitution, could presidentialism survive?

Para-constitutional Solutions

If these four problems do, indeed, pose systemic threats to the survival of

presidentialist polities, then must we not ask how they have been solved in America?To the degree that para-constitutional rather than environmental or contextualfactors can be found, they will interest political scientists in other presidentialistpolities simply because it may prove easier for them to adopt such rules than toaccomplish ecological transformations. Moreover, explanations of the failures ofpresidentialist regimes are more persuasive when they depend on verifiable

para-constitutional practices rather than on vague environmental conditions.Such considerations lead me, at least, to believe that it is important, when viewing




256

American government in a comparativist perspective, to investigate the systemic(para-constitutional) features before considering explanations based on the cultural,geographic and historical factors which have already received a good deal of

attention, especially in the literature on Latin American politics. Moreover, this

approach explicitly reverses the paradigm that blames other countries for their failureto make the American type of constitution work. Instead, it focuses attention on theintrinsic features of the constitution that make it more or less viable.

The President and CongressWhen serious tensions between president and congress arise in countries following theUS model, constitutionalism typically loses out. Since coercive weapons are availableto presidents, both as commander-in-chief and as head of government, they candissolve the assembly and even, if it resists,have its members arrested or executed.They then formally dissolve the Constitution and rule by martial law.More frequently, however, presidents also lose. When governments fail to solve

major issues, popular dissatisfaction leads to uprisings or revolutions. Althoughpopular revolutionary movements are not uncommon, much more frequently smallgroups of bureaucratic conspirators, headed by a few military officers, stage a coupd’Etat, suspend congress, depose the president and set up new (unconstitutional)governments.1 I

The President’s Role

To explain the American success-its continued capacity to avoid the dissolution ofcongress or the replacement of the president by a coup group-we can look first at theway the president’s role has been played. Later we look more closely at the

congressional role.An underlying issue involves respect for constitutionally prescribed rules of the

game; a special sense of &dquo;constitutionalism&dquo; identifies it with respect for rules whichlimit the exercise of power. To distinguish this special meaning of &dquo;constitutionalism&dquo;from its broader sense of following any rules prescribed in a charter, one mightsubstitute &dquo;civility.&dquo;12 Any strong president, especially in times of war and other greatemergencies, is urgently motivated to defy a congress that refuses to support hispolicies. Reacting to negative public opinion, adverse court decisions and otherfrustrations, he may aggressively expand the president’s power and suppressopponents. Tempted by personal ambition, he may also dissolve congress and rule bymartial law. Ultimately, he may extend his term in office, becoming a

&dquo;president-for-life.&dquo; Fortunately for the American Constitution, although &dquo;imperial&dquo;presidents have pressed hard against the norms of civility, in the last analysisconstitutionalism, in this sense, ultimately has prevailed.The opposite of a strong presidency may, historically, have proven a greater threat

to the American constitution. A president’s conduct may be unconstitutional in anegative as well as a positive sense. Thus a weak president cannot provide theleadership needed to cope with difficult issues as they arise. When this happens in theThird World, as it frequently does, it often leads to a military coup.

Although there has been much variation between the stronger and weakerAmerican presidents, on the whole they have taken a middle way, avoiding bothexcessive weakness and overpowering strength. Even the weakest presidents were




257

able to carry on the administration of government until their successors could beelected, and the stronger ones, especially wartime presidents, while they severelystrained relations with congress and court, ultimately respected these institutions andbacked away from trying to rule alone with military sanctions.The model set by George Washington as first president was especially important.

As commander-in-chief of the revolutionary forces, he had a great deal of popularsupport, but he was not personally ambitious and he was even reluctant to serve aspresident or to seek a second term. By contrast in other presidentialist systems, themilitary leader responsible for independence, after being elected president, oftenbecomes the first to undermine the constitution through a personal dictatorship.Abraham Lincoln exceeded his authorized powers when confronting the Civil War,

but his successor, Andrew Johnson, was impeached when he attempted to continueLincoln’s policies in the defeated South. Woodrow Wilson, writing in 1883/4,lamented the dangers involved in excessive congressional power at the expense ofcomplaisant presidents. 1 Later, as a strong wartime president, he personallyexperienced the frustrations caused by profound disagreements with congress.

Since Wilson’s administration, and more recently those of Franklin D. Roosevelt,Lyndon B. Johnson and Richard Nixon, more has been written about the dangers ofan &dquo;imperial&dquo; than of a &dquo;complaisant&dquo; presidency. Current tensions between theadministration of Ronald Reagan and congress, as manifested in the Iran-Contrascandal and the subsequent &dquo;Gulf War&dquo; shows how difficult it still is to maintain astable balance between presidential and congressional power. To reverse the

question, we may ask how the unstable balance that has been maintained was kept.

Election of presidentIt might be argued that American presidents have never faced such acute problems asthose that confront the presidents of similar regimes in other countries, but it wouldbe hard to prove such a proposition. Perhaps more testable propositions could bebased on the way American presidents are elected.The success of the American Constitution appears to require that its presidents

walk a narrow path between excessive dynamism and passivity. Since presidents areelected, we must investigate the electoral and party systems that select them. In theAmerican case, leaders strongly committed to a controversial position are unlikely togain the support of all the diverse factions whose support is needed to win a

presidential election, provided there is a vigorous opposition party that can mobilizeopponents of the controversial position. This argument may not hold in

presidentialist regimes with a hegemonic party since, in these countries, a presidentneeds only to win that party’s support. If this be true, then maintenance of a

two-party system (see the &dquo;Opposition Party&dquo; section) is also crucial to avoid theselection of immoderate presidents.The two-party system also prevents the nomination of an excessively complaisant

person since he would, assuredly, lose the election. Given the need for moderationattributable to the two-party system, presidential candidates must avoid the mostdivisive issues, and their campaigns tend to focus instead on personalities. Thewinner has to be a moderately able but compromising politician, one who can avoidboth activist and complaisant extremes.The American para-constitution includes a fossilized Electoral College which,

while it does not operate as the founders intended, does multiply a winning




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president’s electoral votes, thereby often creating the impression that he has won by alandslide. A constitutional reform that would directly measure popular votes forpresidential candidates, however desirable as a matter of democratic ideals, mightadversely affect the viability of the presidential office. By creating the illusion of agreat victory when the popular majority is very slim, the electoral college may reallystrengthen the position of otherwise weak presidents.

Role of Cabinet MembersOne may also argue that the systemic constraints imposed on a president keep anyincumbent from straying far from the narrow path. The most important of theseconstraints is surely the congress itself. It is, after all, the congress which not onlyauthorizes the president to implement the policies enacted into law, but also deniespresidents the resources to move far beyond them. To explore this proposition I lookmore closely (in the section on &dquo;Congressional Role&dquo;) at the way the American

Congress works. But before doing that let us consider the role of &dquo;cabinet&dquo; as a linkbetween the head and assembly.

In parliamentary systems this role is quite clear. Cabinet members are members ofparliament, and the cabinet is therefore a committee of the elected assembly (thereare exceptions such as the French Fifth Republic which, though parliamentary, hasborrowed presidentialist features). Parliamentary cabinets stand or fall together sincea vote of no confidence forces the government as a whole to resign, or it precipitatesnew elections. Not only does this compel cabinet members to reach policy agreementsamong themselves, but it forces the prime minister to accommodate his or herpersonal preferences to those of cabinet members. Failure to do so could precipitatethe resignation of one or more members (or parties) and a crisis of confidence thatwould overthrow the cabinet. A parliamentary cabinet also strengthens the hands ofthe prime minister insofar as he or she can count on the support of all its members,but it also compels the prime minister to defer to positions taken by anyone in thecabinet. In this sense a &dquo;prime minister&dquo; is literally only the first among equals.The cabinet in a presidentialist system cannot serve the same functions-to call it a

&dquo;cabinet&dquo; is actually a misnomer, it might more precisely be called an &dquo;entourage.&dquo;Although its members are nominated by the president and endorsed by the Senate,they do not stand or fall together as a real cabinet does. The authority of each&dquo;cabinet&dquo; member is that of a department head necessarily selected from outsideCongress by the president. The president may discharge any such member at will andis not obliged to follow the advice of the cabinet. This seems to strengthen thepresident but, in fact, it seriously weakens him: no doubt he has more personal powerthan a prime minister, but he has less structural capacity to control the electedassembly (Congress).

Actually, cabinet members often follow departmental policies that conflict withthose of other members and even of the president. Reformers at various times haveciticized this loose cabinet structure, recommending that laws or constitutionalamendments be adopted which would move the American system toward a tightcabinet structure like that found in England and other parliamentary systems,thinking thereby to strengthen the presidency.However, a loose cabinet may, para-constitutionally, help to sustain the American

presidentialist system. Quite often department secretaries speak for powerful intereststhat restrain a president, and at the same time they, rather than the president, may




259

spearhead projects designed to secure congressional endorsement for policies that arealso acceptable to the president. Instead of working as a coalition to support thepolicies of the government in congress, they become autonomous actors in a dynamicpolitical arena, making bargains, winning some points and losing others. Since theirpersonal reputations will stand or fall with that of the president, they are motivated toshore up a weak president and constrain one who is too dynamic.What arguments can be made to support this interpretation? Note first that power

is radically dispersed in the American political system, both within congress (see thesection on &dquo;Committee Structure&dquo;) and also among career bureaucrats whoseinterests rise and fall with the autonomy of their bureau or department. Nominateddepartment heads are apt to secure senate endorsement only when and if they havethe support of powerful interest groups, committees and public officials linked

together in relatively autonomous &dquo;subgovernments&dquo; or &dquo;iron triangles.&dquo; But afterwinning congressional approval, cabinet members enable a president to take creditfor the successes won by his departmental secretaries and their staffs.

So loose, indeed, is the American cabinet structure that it seems to undermine

presidential leadership. The president must not only bargain with Congress, he hasalso to accommodate numerous subgovernments found within the executive

bureaucracy. To overcome this essential weakness, American presidents increasinglyrely on a growing &dquo;executive office&dquo; of staff assistants accountable directly to them. It tis formally organized through such agencies as the Office of Management andBudget, and various advisory councils. At its core is a small group of personalassistants, the White House Office, appointed without congressional review, whomust be highly sensitive to the personal preferences and style of their leader.The American &dquo;cabinet&dquo; is thus both a basic asset and a liability for American

presidents. The support of its members makes success possible and they keep apresident from making fatal blunders. They are simultaneously a president’s alliesand enemies. They are as necessary as the cabinets in parliamentary government, butthe two institutions are fundamentally different-it is unfortunate that we do nothave two terms for them. At least let us recognize that the organizational dynamics ofa parliamentary (tight) cabinet are quite different from those of a presidentialist(loose) cabinet.

False analogies mislead some critics to think that the American system might workbetter if its cabinet were disciplined. However, its very looseness and the president’sneed to bargain with each member may constitute an essential ingredient of thepara-constitutional formula that permits the American presidentialist system to

survive.l4

Congressional RoleA congress totally unwilling to accommodate itself to a president’s leadership orcontinuously insistent on policies repugnant to the president would create seriousimpasses regardless of who the president was. To sustain its authority, congress needsa power base that can protect it from attack by a frustrated president. Moreover, ifcongress could not handle the host of policy issues placed on its agenda, it would beparalyzed by the sheer burden of legislating. Failures on any of these counts couldlead to collapse and military dictatorship. The American Congress has avoided thesepitfalls by means of three para-constitutional features that enable it to avoidself-destructive battles with an unyielding president, to protect its authority and to do




260

its work: ( 1 ) party indiscipline and the president’s lead; (2) constituency orientation;and (3) committee structure.

Party Indiscipline and the President’s LeadA basic feature of the American &dquo;presidentialist&dquo; system is the lack of party disciplinein Congress. Of course indiscipline does not mean indifference. On some issues, suchas how the assembly is to be organized and who will receive choice committeeassignments, party discipline is actually strong. But on substantive policy issues, evenwhen party positions are clearly enunciated and carefully weighed, members oftenvote against their own party, usually because of competing local or committeecommitments. Some observers criticize this behavior. Citing the high levels of partyobedience normally found in parliamentary regimes, they argue that indisciplineleads to legislative anarchy. However, party indiscipline may be a necessarycondition for the success of a presidentialist regime where, if party discipline wereenforced, the capacity of government to govern would be severely impaired wheneverthe president belonged to one party and the opposition party had a congressionalmajority. &dquo;Most of the laws approved by Congress come from the Executive Branch even

though, as mandated by the Constitution, legislation should originate in Congress.However, the passage of administration measures requires the support of someopposition party members whenever that party has a majority. Otherwise therewould be relentless stalemate in Congress or the opposition would continuously passlaws unacceptable to the president and subject to his vetoes. Such a governmentalimpasse creates the very conditions that lead to coups or the usurpation of power by apresident. Some party indiscipline, therefore, is a para-constitutional necessity so thatCongress can endorse a more-or-less coherent array of public policies supported bythe president. The structural reasons for party indiscipline are apparent-above allthe inability of Congress to discharge the government.The ability of a president to win support from opposition members of Congress

obviously needs more than personal charm and persuasiveness, or appeals to

patriotism. Typically it requires offers of a quid pro quo, for example quite tangiblebenefits in exchange for cooperation on specific bills. In short, patronage and &dquo;pork&dquo;support for projects demanded by a member’s constituents are needed in order tosecure enough votes to pass many measures sought by the chief executive.

Constituency OrientationBut why should members of Congress be willing to give priority to local constituencyinterests and reject their own party’s leadership? This behavior is possible only in thecontext of a highly decentralized pattern of party organization.

In parliamentary regimes, political parties need enough control over nominationsto assure party discipline in assembly votes. To maintain that discipline, partiessupport only candidates willing to follow party guidelines. When loyal candidatescannot be found in a given district, the party may even parachute in outsiders,something completely unacceptable in American political practice. In parliamentarysystems, however, strong party organization armed with a coherent set of policies andguidelines can be achieved.By contrast, in the American presidentialist regime, the party system rewards




261

sensitivity to local interests. This necessity arises fundamentally from the need tosecure electoral majorities in every election, at every level. The national majorityneeded to elect a president is replicated in every electoral district where majorities arealso needed to elect members of Congress, governors, state legislators, mayors andmembers of city councils. No national party can select candidates capable of winningsuch local majorities. This fundamental dynamic has been reinforced by the system ofelectoral primaries, which enables candidates to secure party endorsement even

against the preferences of a party’s leadership.In the American system, therefore, candidates need to establish strong local

followings before they can secure their party’s endorsement, and electoral victorythereafter requires enhanced local support. But such support always carries

obligations. As a result, a congressional party caucus cannot control the votes of itsown members except on clearly partisan issues. Instead, the indebtedness of membersto local constituents impels them to trade votes for favors from the executive branchwhen it can help their supporters.

Committee Structure

A third para-constitutional feature of the American Congress derives from a differentsource, namely the extremely heavy workload or agenda that must be carried by anyassembly obliged to review and vote on an extraordinarily large number of bills. Bycontrast, members of a parliament are routinely called upon to endorse (or reject) themeasures sponsored by their cabinet, but they have to think seriously about theircontent only when major questions arise where a vote of no confidence may occur. Ofcourse they are free to heckle the government in question periods and the oppostionmay debate policies whenever they think public interest might enhance their

prospects in future elections. But such debates are not really expected to influencevotes on most measures.

Members of Congress, whose terms of office are as fixed as those of the president,are compelled by the Constitution to reach autonomous legislative decisions,regardless of where bills originate. No doubt they can simplify their task by refusingto consider most of the bills that are tabled. However, since many importantmeasures do need careful attention, responsibility has to be delegated to committeesor, in the contemporary American Congress, to a host of subcommittees. 16

This arrangement is para-constitutional: it is a necessary condition for the survivalof the system. By devolving responsibility for the bulk of legislation to its subsystems,congress reduces its plenary debate agenda to a manageable level. Members can limittheir span of attention in plenary sessions to a few special issues by giving theirapproval, after cursory review, to most committee recommendations. Nevertheless,everyone has the opportunity, when hard-pressed, to raise any question to the level ofa general debate.A fundamental consequence of this compartmentalization of congressional

decision-making, of course, is an extreme dispersal of power. Autonomous &dquo;empires&dquo;or &dquo;subgovernments&dquo; appear, sometimes referred to as &dquo;iron triangles&dquo; because theylink the interests of bureaucratic agencies and private interest groups with those ofcongressional subcommittees. The iron triangles, in turn, compromise the ability of apresident to command the public bureaucracy, each of whose many componentbureaux and divisions acquires a great deal of autonomy. Responding less to theauthority of the president than to congressional committees, they can pursue their




262

own purposes in a sustained way regardless of who comes and goes in the WhiteHouse. Although this obviously hampers presidential leadership, it results from a

para-constitutional feature of the system, and may provide a kind of systemic stabilitythat could be jeopardized by the sweeping reforms of a strong president.

Paradoxically, this also means that bureaucratic power, which is great in all

contemporary polities, is more conspicuous but less potent in the American

presidentialist system than it is in most parliamentary systems. Because parliamentshave little need for specialist committees, bureaucrats typically have no incentive tolobby publicly (indeed, they are typically forbidden to do so) nor to mobilize citizens’groups to support their projects. Instead, they can quietly and secretly exercise powerby means of policy &dquo;advice&dquo; to cabinet ministers. Appointed officials in a

presidentialist system lack such insider power and they must, therefore, not only seekoutside support for their programs, but remain sensitive to constituency interests inorder to survive.Even at the cabinet level (as noted in the &dquo;Role of Cabinet Members&dquo; section

earlier) departmental secretaries are torn between loyalty to the president and theirneed to accommodate both their official subordinates and congressional committees.In fact, the most serious political problem faced by an American president is not somuch tension with Congress as the need, somehow, to achieve more coherence andorder among dispersed and effectively autonomous bureaucratic subsystems in theexecutive branch of government.Members of Congress, individually, find themselves cross-pressured on three

dimensions: partisan, geographic and sectoral. The most conspicuous and publicdimension is, no doubt, the partisan insofar as members are expected to follow theleadership of their own party. However, much of their power is expressed throughcommittee membership in which sectoral interests, notably those associated with the&dquo;iron triangles,&dquo; prevail. The availability of &dquo;special interest&dquo; campaign funds-especially through &dquo;Political Action Committees&dquo;-has become an increasinglydecisive constraint on legislative action. But equally important, the geographicinterests of their home constituencies also play a major part in the decisions oflegislators, who must necessarily support activities which have visible appeal to thepeople (or groups) in their home districts. Obviously these geographic, sectoral andpartisan obligations intersect and often compete with each other. They promote partyindiscipline and a fragmented, uncoordinated political style: the trade-offs needed tomaintain the system.Although various geographic and cultural factors also affect the capacity of

American legislatures to survive, they are essentially contextual or ecological incharacter and may therefore be treated as historical accidents. However, the systemicfeatures explained above are not random accidents but may be regarded as

para-constitutional necessities for the survival of any presidentialist system.

Party SystemSeveral features of the political party and electoral system appear to have

para-constitutional implications: the low level of turnout at elections, high campaigncosts, propensity to vote, maintenance of an effective opposition party, the presence offederalism, ballot length and privatization. A few remarks about each are in order.




263

Voter ApathyOne of the paradoxes and limitations of a presidentialist system of governmentappears to be voter apathy. Despite its long history and the apparent commitment ofAmericans to representative democracy, voting turnout is notably less in the USAthan in virtually all parliamentary governments. I? We normally assume, of course,that popular participation in elections is necessary for the health of democratic

institutions. However, sad to say, a low voter turnout seems to be a cost entailed byvarious para-constitutional aspects of a presidentialist system. In addition, it couldeven be a para-constitutional feature. No doubt this hypothesis will be hotlycontested, and certainly American reformers, commentators, politicians and civicsteachers uniformly advocate higher electoral participation. Nevertheless, there is

reason to believe that if turnout levels were much higher, the capacity of a

presidentialist regime to survive would be sorely taxed. To explain this conclusion, Iconsider all the interdependent features listed below.

Campaign CostsFor a political campaign to succeed in a presidentialist system, it must win a nationalmajority vote. To finance such a campaign, enormous expenses are involved. Untilthe 1880s these costs were moderated by reliance on volunteers who campaigned inthe expectation that victory would win them jobs, under the &dquo;spoils&dquo; system. Theexpansion of the merit system, while it undoubtedly improved the quality of publicadministration, also made American parties more dependent on financialcontributions by those who expected to benefit, for the most part, from conservative,property-oriented public policies.

In recent decades campaign costs have escalated fantastically with the

development of television. Individual candidates for president must now raise hugesums to pay for media blitzes in order to secure their party’s nomination and then theelection. Candidates for congressional seats and gubernatorial office have to do thesame thing, though on a smaller scale. In addition to radio and TV advertising,substantial additional expenditures are needed for consultants, polling, money-raising, travel and countless related costs. &dquo;Political action committees&dquo; (PACs),oriented to special interests, increasingly play a dominant role in the financing ofcontemporary American political campaigns. Admittedly, candidates for uncontestedoffices (usually local) can often win with quite modest budgets. ~8

Successful candidates, not surprisingly, are deeply beholden to the interestsbacking their campaigns. Such interests are usually seen as antagonistic to theinterests of the poor, who constitute a majority of the population. Although lip-serviceis typically given in party platforms to social policies that would help poor people,such policies compete with those favored by much more powerful interests committedto the free-enterprise system and the property rights on which it rests.

Propensity to Vote

Polling results tell us that active voters are mainly the better educated (and hence alsothe more comfortable) segments of the population. 19 The higher the level of popularparticipation in voting, the greater would be the contradiction between the intereststhat finance political campaigns and the interests of the voting majority. The




264

presidentialist system, therefore, works most smoothly when voting participationremains fairly low, and those able to finance campaigns see that their interests will bewell served. By contrast, of course, in parliamentary systems the more radical parties,advocating socialist, labor or peasant interests, are able to generate much widerparticipation among poorer segments of the population.A conspicuous reason for the skewed distribution of voters can be found in the

substance of party platforms. In order to secure the support of a majority of voters-a majority required by the arithmetic of a winner-take-all presidential competition-these platforms have to take ambiguous stands on many issues that divide publicopinion. But such issues are also likely to attract the greatest interest, especially thatof poor people. Strong stands for or against the &dquo;right to life,&dquo; &dquo;prayer in publicschools&dquo; or &dquo;equal rights&dquo; for minorities and women, while activating large votingblocs, also create a host of enemies.By contrast, declarations in defense of &dquo;motherhood,&dquo; of patriotism (national

defense), of social justice (in the abstract) and of high levels of employment-accom-panied, of course, by condemnations of &dquo;bureaucracy,&dquo; of excessive &dquo;taxation,&dquo; ofdrug trafficking and crime-are unlikely to offend any large body of voters. But sad tosay, they also fail to generate much enthusiasm, especially among the poor. The pricefor high voter turnout is lively and divisive political controversy, whereas low turnoutis linked to apathy and indifference. 20 This is not to say, of course, that

non-participation by the poor and deprived is a virtue. Quite the contrary; a livelyand just democracy would surely represent all citizens. The rules and motivationsfound in parliamentary democracies are more apt to stimulate widespreadinvolvement than are the rules of a presidentialist republic. Or, to put the negativecase, mass participation is less threatening to the survival of parliamentary than ofpresidentialist regimes.

Non-voters in America are typically more apathetic than alienated. Having little togain by voting, they assume that government will manage without them and theyprefer to improve their personal lot by non-political activity. Their attention is

focused, above all, on the quest for money and consumer goods, on sports, onTV-watching, on religion, even on culture and the arts. They prefer to leave the&dquo;nasty business of politics&dquo; to &dquo;politicians&dquo; and &dquo;bureaucrats,&dquo; people who are seenas unavoidably necessary and sometimes oppressive, but also usually as no menace toordinary life and sometimes even as protectors of freedom and human rights. Viewedin this light, the low level of voter turnout in American elections, although a sign offailure for democratic values, may also be viewed as a factor contributing to thesurvival of the system.

The Opposition PartyFailure to vote does not undermine the openness of presidentialist systems, but amore serious threat in many countries arises from the inability of an opposition partyto win elections. To account for this failure, remember that parties in a presidentialistsystem cannot perform many of the functions typically associated with parliamentaryparties. They cannot formulate coherent and specific public policies, they cannotcontrol the votes of their members in congress, they cannot control the nomination ofcandidates for election; they can only ratify and legitimize the campaigns of those whoare most successful in gaining personal support for their candidacy. Moreover, theycannot perform the host of supplementary functions often associated with parties in




265

parliamentary systems, such as insurance, housing and jobs. Such functions can beperformed by any party that needs only to command the votes of a stable electoralminority, but not by one that has to seek the support of an electoral majority.

Because parliamentary parties have many functions, they can readily survivedefeat. They continue to perform non-political functions valued by their members.Voters committed to the specific goals of a parliamentary party continue to support itin defeat. Moreover, such parties can win seats in parliament (perhaps the cabinet)even though they cannot command a popular majority. This also means that everyvote in a parliamentary election counts by building support for minorityrepresentation.By contrast, in presidential elections, voters for the losing party’s candidates may

feel they have gained nothing and wasted their time. There are few incentives toinduce them to remain loyal to a defeated party. Party &dquo;membership&dquo; is usually weakor non-existent. Only a small core of party &dquo;activists&dquo; remain faithful in times offailure 21 and those who vote with a winning majority may even feel that theirindividual votes do not count since the majority would have won anyhow.Above all, most voters cannot be enthusiastic about political parties whose

generalized platforms reflect little but compromises. They see small reason to favorone party above another, and often say that the real choice is between two evils, aperception shared with parliamentary systems having single-member constituencies,as in Britain and Canada. Apathy not only keeps citizens from the polls, but inAmerican elections one easily senses the indifference of fellow voters.

Financial supporters of a victorious party can, of course, expect various rewards.Generous contributors expect to be well treated, especially with regard to the

important policies they favor. Quid pro quo contracts are more likely to be awardedin local rather than national politics, but winning officials find various means to helpsustain and invigorate their own party, especially by patronage. By contrast, thosewho contribute to a losing party can expect few rewards. Without powerful patrons,losing parties in a presidentialist polity typically split into many small parties, eachbased on personal allegiance to a leader and commitment to specific causes that onlysmall parties can espouse. However, the more committed to such causes the

supporters of fragmented parties are, the more unwilling they become to cooperate insupport of a middle-of-the-road coalition party that might realistically expect to gainthe support of an electoral majority.

Tolerance and Federalism

Despite these natural obstacles to the maintenance of a successful opposition,opposition parties in the United States not only survive but are able to win electionsfrom time to time. Their success is, indeed, one of the essential keys to the long-termsurvival of the US presidentialist system. How do we explain it?One reason relates to tolerance. When the parties, as in some presidentialist

systems, view their opponents with deep hostility, the victorious party seeks to

destroy its defeated opponent. However, in the American system, the rival parties areso bland and similar that while the winners typically denounce their opponents, theydo not try to suppress them. The competing parties are more like rival football teamsor fraternities; each would like to win but neither will be destroyed by defeat.However, this is only a negative consideration.




266

More importantly, the survival of opposition parties in America is attributable tothe continuing vitality of federalism-and of spoils. Self-governing institutions at thestate level-and in municipalities and rural jurisdictions-enable a party that isdefeated nationally to retain power in state and local government. Such partiesmaintain their organizational vitality because the rewards of success are available tothem locally. Significantly, the spoils system for appointing public officials continuesto prevail in local government and is still widespread nationally. Although thepractice is condemned as harmful to good administration, it sustains the vitality oflocal party organizations. Thus an administratively inefficient process may be quitefunctional for the continuation of open politics in a presidentialist regime.

Since, for reasons explained above (in the section on &dquo;Party Indiscipline&dquo;), thebasic structure of American party organizations is both indisciplined and localized,the viability of local parties does not depend on national victories. Indeed, one shouldthink of American national parties as shifting coalitions based on the support ofautonomous local parties and diverse socioeconomic interest groups, especially thoseincreasingly represented by &dquo;Political Action Committees,&dquo; or &dquo;PACs.&dquo; Consequent-ly, when national political campaigns are organized, the opposition forms as a

coalition of successful local party organizations, and it can sometimes win the

presidency, especially when the incumbent has made conspicuous mistakes orsuffered from humiliating policy defeats, when the economy is foundering, when theruling party’s candidate is personally unattractive, or when rampant corruption andinefficiency in government prevails.

Party indiscipline in congress is replicated by split voting in the precincts. Just aslegislators often put constituency interests ahead of party loyalty, so electors may votefor the candidates of different parties-one candidate for president but a rival party’scandidate for Congress. Thus the strength of local party organizations, based onfederalism and spoils, helps explain both the ability of an opposition coalition to winthe presidency, and the fact that one party can win the presidency while the oppositeparty gains a majority in Congress. When this happens, the support of members ofCongress also helps to sustain the party that failed to win the presidency.As noted above, strong local party organization also dictates the localist orientation

of members of Congress and supports the party indiscipline needed to keep the systemfrom collapsing. We may conclude that federalism is, therefore, not a completelyseparate aspect of the American Constitution but is a para-constitutional featureneeded to assure the survival of an open presidentialist regime. To the degree thatcountries emulating the American presidentialist model are unitary, not federal, thisstructural difference helps to account for their difficulties. This is not to say, of course,that federalism and parliamentarism are incompatible. It may well be that

parliamentary federal systems work better than those that are unitary, but I wouldadd that a unitary parliamentary system has better survival prospects than a unitarypresidentialist system.

Long BallotsElectors in a centralized parliamentary government may concentrate on the selectionof members of Parliament. Because they usually have strong party identifications,their choices are further simplified; after deciding which party best expresses theirinterests, they can easily vote for all of its candidates.




267

In the American federal/presidentialist system, by contrast, voters must not onlychoose among candidates for legislative and executive office at three or more levels ofgovernment, but they must also select from numerous nominees for other

oflices judges, district attorneys, school board members-and they are expected toparticipate in party primaries to help select candidates. Although candidates oftenhave party labels, split voting means that choices based on complex assessments ofpersonal competence and appeal are salient. (In parliamentary systems, by contrast,it is more common for voters to support their party, regardless of candidate-which isnot to say that the personal qualities of a candidate are irrelevant.) Since

presidentialist voters may also have to make difficult policy choices in a referendum,conscientious citizens must invest a lot of time when preparing to vote. Indeed, thechoices required of American voters are so numerous and problematic that manypotential citizens just want to avoid the trouble of voting. In California, according toHerbert Alexander, director of the Citizens’ Research Foundation, 200 or more votingdecisions are required of each citizen. Those with less education or free time find sucha responsibility truly onerous. Satisfied that others can make better choices, they mayrationalize their abstention by arguing that it makes little difference who wins (Pious,1986: 140).One of the classic reforms promoted by American political scientists involves the

substitution of short for long ballots, making many posts appointive rather thanelective. It was argued that this change would greatly increase the level of citizenparticipation in elections. Some claim that there is more &dquo;democracy&dquo; in theAmerican electoral system than in others simply because voters make more choices.In this sense, those who vote are, indeed, more involved in the political process. Butto the degree that fewer citizens vote, the system is less democratic. Given this

trade-off, I would agree that, if shorter ballots encourage more people to vote,democratic ideals will be enhanced. However, in terms of system survival, lowturn-out is a positive factor. To put it baldly, one price for the survival of a

presidentialist system may be the barriers it puts in the way of popular participationin elections. No doubt this is unpalatable to those who think of the presidentialistsystem as an ideal form of democracy.The inherently elitist character of presidentialist democracy becomes apparent at

the local level. The more local elected officers there are, the more one findsincumbents committed to a political party and willing to sustain it in the face of

widespread voter apathy. After all, to win an election one only needs a majority ofthose who do vote. Moreover, to maintain an open presidentialist system we need twoviable parties, each capable of winning electoral majorities. Thus it may be that thesurvival of a presidentialist system is incompatible with high levels of voter

participation. If a large electoral turnout is desired, the easiest way to achieve it is bycommand, as in single-party dictatorships, or by minority representation, as in

parliamentary systems.So long as locally based party organizations can sponsor many office-holders

-both by election and by spoils-the resource base needed to support the nationalelectoral campaigns of two major parties can survive. The trade-off is between moredemocratic participation and the survival of an open presidentialist system. If a

greater voter turnout leads to system collapse and dictatorship, then what is the gainfor democracy? Alternatively, a transformation leading to some kind of parliamentaryregime might produce a system that could be both more popular and more open.




268

Prir~atization

No doubt many Americans do invest a lot of energy in elections and polls, but morefrequently than not they involve private rather than public organizations. One mightsuppose that experience gained in private elections would enable voters to participatemore actively and intelligently in public elections. However, there may be a kind ofbacklash. Many individuals find participation in private elections-in churches,trade unions, professional societies, corporate boards and ethnic associations-veryinteresting because their votes count a lot and because they have a personal stake inthe outcome. By contrast, they often find public elections boring and they think theirindividual votes count for little, so why should they bother?Another conclusion-admittedly speculative-might by that the multiple outlets

for private &dquo;political&dquo; action by Americans greatly reduces their demands on

government. People find so many non-governmental channels for their energies andthe satisfaction of their wants that they downgrade the significance of government.Moreover, to the degree that government itself can privatize public functions, as bytransferring them to corporations and non-profit organizations, it may simplify thetasks of governing. Were it not so, governing a large-scale industrial society by meansof an extremely clumsy formula for representative government would becomeunmanageable, provoking the kinds of collapse that occur in all other presidentialistpolities. Admittedly private interests can also mobilize support for costlygovernmental policies: thus the net impact of privatization may be indeterminate.More data are needed to support a stronger conclusion.

Moreover, reliance on private organizations may be viewed as a contextual ratherthan a systemic (para-constitutional) feature of American governance. No doubt itexists also in parliamentary systems. However, it may have a special importance in apresidentialist system. One way to reward the financial supporters of costly electoralcampaigns is to sponsor the transfers of many governmental responsibilities to

non-governmental organizations. The current Reagan administration is, of course,strongly committed to such &dquo;privatization&dquo; and it depends on the capitalist (freeenterprise) system to manage many tasks that might otherwise be handled bygovernment. Accordingly it may be that the propensity of American government toshirk responsibility for many tasks is a para-constitutional feature that helps it tosurvive.2Does the same argument apply to political parties? As noted above, parliamentary

parties perform many functions not performed by American political parties. Sodiluted, indeed, have the functions of these parties become that they do little morethan ratify nominees for public office and manage their campaigns. Increasingly,autonomous PACs finance the candidates, especially during the pre-electoral&dquo;primaries.&dquo; The representation of specific political interests is handled by a host ofprivate associations and their lobbyists rather than by political parties. Theprivatization of political parties has stripped them of all but their core function. Thusthe continuation of a two-party system in a presidentialist regime, and hence its

survival, may also require the privatization of most party functions.A fundamental contextual feature that also helps us explain the resilience of the

American presidentialist system is the common law tradition which permits manyfunctions to be handled privately that, in other countries, place burdens on thegovernment. Even more significantly, the common law helps us understand howAmerican courts can independently relieve an embattled presidentalism of many




269

burdens, including many tasks of public administration, and also acquire the powerneeded to exercise the functions of judicial review, which we look at next.

The Supreme Court and Constitutional ReviewThe maintenance of a constitution which institutionalizes both confrontationsbetween president and Congress and a deeply problematic cleavage between federaland state governments clearly needs a powerful umpire, the Constitutionallymandated third (judicial) branch of government. The need for such an institution,however, by no means assures it success.

This point gains weight from comparative analysis: polities which emulate theAmerican presidentialist system are rarely able to maintain the practice of judicialreview. No doubt courts perform basic functions in all these countries, but when theychallenge the acts of a president or congress, they lack the power to enforce theirjudgments. Without defending this opinion here, let me ask how the American

Supreme Court sustains its authority to review acts of congress and the executive.23At the systemic level we may ask what Supreme Court practices are para-constitutional. Because the answer to this question may not be persuasive by itself, Ineed also to consider two environmental (ecological) factors, namely the prevalenceof common law in America and the strong political position of the legal profession.

Court Discretion

No specific practices of the Supreme Court appear to explain its political potency, buta long tradition of political sensitivity has led the justices to avoid battles which theywould probably lose. Normally they select cases discreetly, reserving the right toreject not only those that would give them an excessive case load, but also those thatcreate no-win confrontations. 21 Moreover, they scrupulously deny themselves anovertly policy-making role, even when their decisions do, in fact, shape policy.

Interestingly, the Constitition itself did not explicitly provide for constitutionalreview: Article 3 merely assigns &dquo;The Judicial Power of the United States&dquo; to the

Supreme Court and such inferior courts as Congress may establish. AlexanderHamilton argued (Federalist Paper No. 78) that it would be the duty of the courts &dquo;todeclare all acts contrary to the manifest tenor of the constitution void.&dquo; No doubtothers shared his opinion, but that did not resolve the issue.

It remained for the Court itself to set a precedent-a precedent that could be citedas strong evidence under the stare decisis traditions of the common law-in the famouscase of Marbury vs. Madison ( 18Q3). John Marshall, as chief justice, created a model ofcourt behavior that is as important for the survival of the American system as was theconduct of George Washington in creating a model for the presidency. Marshall couldhave destroyed the credibility of the Court by adopting either of the two obviousoptions presented in this case-to condemn Madison’s confiscation of thecommissions for would-be justice William Marbury and others, or to accept thishigh-handed executive action. The former option would have placed the Court indirect conflict with the president, whereas the latter would have meant capitulation.

In this apparently no-win dilemma, Marshall found a third option, relying on aprocedural question. Although at face value his decision diminished the power of theCourt, his claim that Congress lacked the constitutional authority to grant the Court




270

primary jurisdiction in cases of this type shrewdly avoided confrontations with eitherthe president or Congress yet established a strong precedent for judicial review. Bothpresident and Congress, by accepting the decision, confirmed the Court’s right toreview the constitutionality of their acts. 25

It may be argued, however, that even the shrewdest decisions by a court could not,alone, generate enough power to adjudicate successfully the acts of Congress and thepresident. That the American Court could maintain so much power must, instead, beattributable to the peculiar respect for court decisions entrenched in the commonlaw.26 Significantly, the countries in which presidentialist systems failed generallyhave codified legal systems in the civil law tradition.

The Common Law

We need to recall the origins of common law in England as a type of customary lawframed by justices of the peace, typically local notables. When royal justices offeredcommoners a court of appeal against arbitrary actions by local magnates, the powerof the monarchy grew. In the British context royal courts became the guardians ofnew property rights claimed by a growing middle class without thereby destroyingthe vested rights of a landed aristocracy.As transferred to America, the rights of free enterprise became dominant, and

aristocratic privilege-except in the Southern plantations-was not institutionalized.Put differently, American history began without feudalism. The &dquo;middle class&dquo; didnot have to contend with an &dquo;upper class,&dquo; and so its values soon became dominant.Common law provided a well-entrenched basis for the development of capitalism inAmerica without requiring governmental intervention. As it evolved, the courts incommon law were autonomous and were viewed by the middle classes as bastions ofprivate property independent of state policy. In this context the Supreme Courtbecame a great defender of property and contract, rights which were also guaranteedin the Constitution.27 For the Court to sustain the Constitution was also, then, tosafeguard property rights. On this premise the Supreme Court gained strong backingfrom a solid middle (capitalist) class.The importance of this point becomes more apparent when we consider the

situation in Europe, and especially in contemporary France. There feudal privilegespersisted until the late 18th century, even though a centralizing monarchy cameincreasingly to support bourgeois interests by means of a royal bureaucracy whoseintendants, throughout the realm, facilitated the sale of land by impoverishedaristocrats and thereby supported social changes that favored the rising middle class.The French Revolution was directed as much against the last vestiges of feudalprivilege as it was against the monarchy, but in the aftermath of the revolution, legalchaos prevailed. To cope with this anarchy, the Napoleonic Code was prepared as acodified and state-imposed scheme for rationalizing legal norms. However, thiscodified civil law had to be interpreted by government oflicials and the administrationof justice became bureaucratized, not politically autonomous as it had developed inthe common law tradition.These environmental conditions seem to be so important when trying to explain the

success of judicial review in the American case that we cannot rely, in this instance,on a para-constitutional (systemic) argument. The point gains further weight whenwe consider the political importance of the legal profession.




271

The Legal ProfessionIn countries with a civil law tradition, it is not difficult to learn the codes which offerthe basic principles of jurisprudence in a form that is both relatively compact andsystematic. Law students even have time left over to study a wide range of non-legalsubjects. Moreover, because the administration of law is bureaucratized, law

graduates tend to enter the government service as officials. Lawyers do not form anautonomous professional class with its own power base.The common law tradition, by contrast, imposes on its students a long and difficult

learning process based on the case method, that is on studying precedents found in avast array of previous judgments. This method clearly takes a great deal of time andenergy. It produces a class of private legal practitioners who are not officials but areuniquely qualified to interpret and argue the law. They also have a great vestedinterest in the maintenance of a system which they alone fully understand and fromwhich they derive many benefits.

Moreover, the preoccupation of law students with the study of legal cases at theexpense of other subjects produces a kind of professional bias that leads to a

single-minded acceptance of legal precedents, and blindness to non-legal modes ofpolitical analysis and social interpretation. All those who use and benefit from legalservices support both the system and its innumerable practitioners.

Because of its common law tradition, therefore, the United States has a stronglyentrenched legal profession, a well-respected and understood autonomous system ofcourts and judges, and a commitment to the rule of precedent which enables commonlaw to flourish. That tradition sustains the view that when the Supreme Court rendersa &dquo;landmark decision,&dquo; it truly expresses the supreme law of the land. After the Courtunambiguously asserted, in Marbury vs. Madison, its right to declare an act of Congressunconstitutional, that precedent not only became sacrosanct but it also rationalizedand defended the existing powers and privileges of the legal profession.To question the Court’s power of judicial review, then, would be tantamount to

undermining the whole system of law, justice, private property and sacred contracts.Widespread popular acceptance of the values inherent in the prevailing legal systemtended to turn public opinion against any efforts by the president or the Congress tolimit the Court’s power. Moreover, the full financial weight of the ruling circles in acapitalist society could be mobilized to support a protective legal system and its apexorganization, the Supreme Court.No doubt there are other historical and structural factors that reinforce the

constitutional powers of the Supreme Court in the American polity. For example,under the federal system each of the fifty states also has a supreme court with thepower of judicial review. Their own authority is buttressed by the authority of the USSupreme Court. Consequently, even when that Court declares a decision by a statecourt to be unconstitutional, the state court cannot object without therebyundermining its own authority. Hence, in order to reproduce the judicial reviewpowers of the Supreme Court at the state level they must also continuously reaffirmits validity nationally.

In concluding, I may observe that the rules for amending the US Constitution areflexible enough to make amendments possible once there is enough support frompublic opinion, but strict enough to maintain the continuity and myth of the originaldocument. Nevertheless, amendments do offer a safety valve against unpopular Courtdecisions. If such a decision is widely viewed as sufficiently arbitrary and contrary to




272

the general interest, the Constitution itself can be amended, thereby altering theground rules for all later judicial interpretations.

Conclusion: An Agenda for ResearchNo doubt a full explanation of the survival of a presidentialist system of governmentin the United States for 200 years will require us to take into account not only thesystemic (para-constitutional) features explained above, but also many historical,geographic, cultural, social and economic factors. Thus, the common law, whoseimportance as a basis of support for the umpiring functions of the US Supreme Courthas just been explained, belongs to the American cultural and historical backgroundrather than to its constitutional system.

Other environmental conditions are almost as important. For example, the abilityof American legislators to make Congress work despite its agenda overload might beattributable to an historical background in which experience with elected assembliesantedates the development of a large bureaucracy, building on the culturalfoundation created by a form of Puritan church organization which supportedcollegiality and debate among members. By contrast, in most of the presidentialistregimes of the Third World bureaucratic structures had become well establishedbefore the new constitutions and elected assemblies were adopted. Morevoer,ecclesiastical patterns of organization based on hierarchic authority were also wellentrenched. Regrettably, such matters could not be investigated here; the aim hasbeen to show, more modestly, that the study of American politics will be strengthenedby a comparative approach. Such an approach compels us to ask why a form ofgovernment that has universally experienced disruptive episodes elsewhere hasnevertheless survived continuously in the USA. Preliminary inquiry reveals the

presence of para-constitutional practices which, though not formally recognized assuch, are so integrally linked with the formal Constitution as to be necessary for itscontinued viability. This inquiry has not led us to conclude that the system is a &dquo;bad&dquo;

one, only that it is difficult to maintain. However, the para-constitutional conditionsfor system maintenance have their costs as well as their benefits. Both aspects shouldbe taken into account.

Inquiries into the environmental and contextual basis for continuation of theAmerican regime are also needed. They may explain not only why the formal featuresof the Constitution have survived, but also why and how its para-constitutionalinfrastructure developed and persists.The propositions offered here are admittedly speculative. Even if they prove to be

invalid, they should open a line of rewarding inquiry: the comparative study ofpresidentialist systems. Until now, studies of the American presidentialist system havebeen predominantly non-comparative, and comparative presidentialist research hasbeen focused almost exlusively on the Third World, under the premise thatenvironmental or cultural constraints are more important than the structural featuresof presidentialism. We now need, I think, to bring the two domains together in acomprehensive approach to comparative presidentialist regimes that includes boththe United States and all countries that have attempted to emulate its constitution.This is the sort of fruitful enterprise that one-country specialists on the USA andcomparativists should undertake on a comparative basis. Such research should, ofcourse, be followed by global comparisons among other regime types, includingparliamentary and one-party systems and &dquo;bureaucratic polities&dquo; dominated by




273

appointed (usually military) officials. Such an enterprise would recapture much of thevigor of the earlier &dquo;comparative government&dquo; tradition but reinvigorate it in light ofthe accomplishments of &dquo;comparative politics&dquo; and &dquo;world systems&dquo; theory.

Notes

1. There are precedents for the use of presidentialism: see, for example, papers presented byJuan Linz and others at the American Political Science Association conference in

September 1987 under the heading: "The US Constitution Abroad: the Failure ofPresidentialism"

2. Thirty Third World countries with presidentialist regimes have experienced disruption bycoup d’état since 1945: of these 21 are in Latin America, 7 in Africa, and 2 in Asia. Threeothers have been disrupted by other means. Not one has been able to sustain an

uninterrupted series of constitutionally prescribed presidential and congressional elections(Riggs, 1985: 34). The US did, of course, experience a major threat to its survival duringthe Civil "War between the States." Nevertheless, the Federal government in Washingtonand the authority of President and Congress persisted throughout this highly traumaticperiod.

3. Forty-three Third World countries had parliamentary regimes when they were liberatedfrom imperial rule: of this number, 29 remained intact as of 1985, and 13 experienceddisruption by coup. Grenada, an exceptional case, apparently had a "revolution" (Riggs,1985: 32).

4. Thirty-four new states opted for a single-party regime when they became independent: ofthese, only 5 succumbed to coups (Riggs, 1985: 37).

5. The American regime is based on a written Constitution, as subsequently amended andinterpreted by the courts. No doubt this Constitution has, in practice, changed over theyears. Nevertheless, it has not been displaced, and it has retained its most crucial features.However, not all constitutional practices are written up. Some of them belong to theAmerican "rule" which, according to Lasswell and Kaplan (1950:208), is "the pattern ofruler practices." "Naked rule" exists in a polity whose Constitution has been suspended, asby coup d’état, or the imposition of presidential dictation. The "rule" in America hascontinuously rested, with all its revisions and marginal distortions, on a survivingpresidentialist Constitution.

6. Other possible terms might be "cata-constitutional," "quasi-constitutional" or "infra-constitutional." Cata-constitutional, derived from cata- in the sense of "down from," seemsparticularly apt but this neologism is rejected here because it does sound strange. Sincepara- has several meanings that seem be relevant—"alongside," "subsidiary to"—I havechosen to stick to para-constitutional. Readers who find one of these synonyms more

appropriate should substitute it when interpreting the text.7. Not all contemporary polities are "modern." Some traditional monarchies—Saudi Arabia,

for example—have modernized their bureaucracies and economies without creating anational elective essembly. Moreover, many contemporary polities are ruled by "coupgroups" who have seized power by violence (or the threat of violence), thus violating theirown Constitutions. All "modern polities," as this term is defined here, are constitutionalregimes, but not all constitutional regimes are modern. Pre-modern regimes typically hadunwritten constitutions—and even, as in England under the Magna Carta, a writtencharter.

8. Single-party regimes are "modern" because they have elected assemblies, but theseassemblies lack political power because the party that selected their members can controltheir votes. Only when the outcome of assembly votes is unpredictable can a legislativebody exercise real political power. An assembly’s votes are unpredictable only when itsmembers represent competing political parties or factions, and powerful assembliestherefore have a vested interest in safeguarding the rights of voters who criticize those in




274

power. No other institution of government has such a vested interest in protecting therights of regime opponents. (Even powerful assemblies, of course, may have no interest inprotecting the rights of non-constituents—as South Africa, Israel and the antebellum USdemonstrate.) Since modern constitutional regimes that prohibit opposition parties haveweak elected assemblies, they typically cannot sustain an open polity. Some scholars denythat such regimes are "constitutional," but in so doing they are giving a narrower meaningto the word. As used here, a regime is "constitutional" if it follows a basic set of groundrules. For many, by contrast, a regime is "truly" constitutional only if it imposes effectivechecks on the exercise of executive power, something that does require powerful electedassemblies.

9. To reduce confusion between the institutions and their prescribed functions, I use theterms "head" and "assembly" for two structural categories found in all modern polities. Thehead of any polity with an American-type constitution is called a "president" and its

assembly is called a "congress." How the "executive" and "legislative" functions aredistributed between president and Congress is a political problem not easily solved byConstitutional prescriptions, but it is often misleading to use functional terms to refer tothe former as "the executive," and the latter as "the legislature."

10. In Canada, since the adoption of the Canadian Charter of Rights and Freedoms in 1982,the importance of judicial review has no doubt increased. My point is not that

parliamentary systems do not need powerful courts and judicial review, but only that thesurvival of a presidentialist regime depends even more heavily upon this process.

11. Government based on unconstitutional violence is an endemic phenomenon in the ThirdWorld today. Strangely, we have no accepted term for such political systems; they may becalled "military" or "personalist" regimes, but these terms identify systems, not the rootstructure. They might be called "tyrannies" but some constitutional regimes are tyrannical,and military rulers are not necessarily tyrants. We could speak of them more precisely as"bureaucratic polities" or systems of "naked rule," but neither of these terms is fullysatisfactory. Until we find a more widely acceptable term for the phenomenon, we shallcontinue to confuse regimes operating under constitutional norms with those in which suchnorms have been suspended (Riggs, 1981).

12. According to Robert H. Jackson, "Political civility and the liberty, stability, order,certainty and other political goods which consort with civility, is the point and benefit ofconstitutionalism" (Jackson, 1987: 12). No doubt "civility" ordinarily refers to politeness,but in this extended sense, a "polite" respect for others becomes "political" deference (seealso Friedrich: 32-43).

13. "The presidential office," Wilson wrote, "has fallen from its first estate of dignity becauseits power has waned; and its power has waned because the power of Congress has becomepredominant" (Wilson, 1956:48). Introducing this edition, Walter Lippmann pointed outthat Wilson’s later book (1908) had reflected a complete reassessment based on optimismthat the power of the presidency was resurgent, a view that influenced his own subsequentdecision to seek the presidency. He also noted (Wilson, 1956: 16) that, "the tendency of thesystem is to become unbalanced," but it is a balance that can be righted. Wilson grew up inan era when the balance had radically turned towards Congress, but subsequently, and inpart because of Wilson himself, it tilted towards the presidency.

14. One authoritative analyst concludes that "the Cabinet as a collectivity has only a symbolicvalue ... In the day-to-day work of the Cabinet member, each man fends for himselfwithout much consideration of Cabinet unity" (Fenno, 1959: 247). Each cabinet member,in a sense, is a soldier used by the president to mobilize congressional support and/or tolead and coordinate a departmental empire. "In the final analysis," writes Fenno, "it is forno one but the President to decide whether a Cabinet member is an asset or a liability"(1959: 213). Although the president nominates cabinet members, each nominee soondiscovers "that the successes and failures of his official lifetime may depend upon thelegislature. His department is powerless without the money which only Congress can give;its functions can be expanded or altered only if Congress passes a law ... it may be




275

subjected to a searching congressional investigation ... or, it may be reorganized out fromunder him ..." (1959: 203). "In formally institutionalized ways, in informal contact ...department head - legislative - interest group relations develop and become

counterweights to presidential control" (1959: 199). The term "cabinet" is misleading,implying unity of action where there is none, but its members, severally and autonomously,can help the president influence congress, or help congress move the president—they areessential and flexible links between these two major components of a presidentialist regime.There might be less misunderstanding of the American "cabinet’s" role if we used adifferent term for it, such as "entourage."

15. Although the authors of the American Constitution worried about "factions," they had noclear ideas about "political parties," which subsequently evolved outside the boundaries ofthe formal Constitution. The party system has, of course, remained in flux, but weak andundisciplined parties appear to be necessary for the survival of a presidentialist regime.

16. Morrow (1969: 3) explains how the Constitutional provision for separation of power hasgenerated potent congressional committees vested with a right to apply their own

judgment to administration proposals, leading often to "open conflict between thePresident and Congress ...." Although Morrow provides a detailed analysis of the formaland informal workings of these committees, he does not explicitly recognize how necessarythey are for the survival of a presidentialist regime.

17. Seventy-two percent of eligible adults registered for voting in the USA in 1984 comparedwith 85 to 95 percent in Western European democracies. Actual voter turnout in the USAwas 53.2 percent compared with from 72.6 to 91.4 percent in 18 parliamentarydemocracies, except for India, which had only 60.5 percent—still a higher level than theUSA. The only democracy with a lower turnout than the USA was non-parliamentarySwitzerland, with 51.7 percent (Pious, 1986: 139-40).

18. According to a recent report by the US Federal Election Commission on congressionalexpenditures, during the 1985/86 two-year election cycle, candidates for 34 Senate seatsraised $214 million and spent $211 million, an increase of 24 percent over 1984 spending.Similarly, candidates for 435 House seats in 1986 raised $257 million and spent $239million, also a 24 percent increase over 1984 (Honolulu Advertiser, 10 May 1987: A-20; forfurther details see Alexander and Haggerty; 1987). According to this report, campaignspending during 1983-4 exceeded $1.8 billion, a 50 percent increase over the cost of theprevious presidential election cycle.

19. According to US Census Bureau statistics there is a direct correlation of voter turnout witheducational and income levels (Pious, 1986: 145-8).

20. A high voter turnout (83.7 percent) in Chile’s 1970 election led to the victory of a socialistcandidate, Salvador Allende, followed by radical social reforms which benefited the lowerclasses. It should be noted, however, that the Chilean constitution permitted congress toselect the president when no popular majority occurred, and in this case there were threecandidates: Allende’s Socialists received a plurality (36.3 percent), showing that in fact thevoters were highly motivated, as in parliamentary systems, by special interest appealsrather than majoritarian compromise "platforms." As a tragic sequel the alienated middleclass and powerful domestic interests, with US backing, supported a military coup and theresulting dictatorship of Major General Augusto Pinochet. In any regime, presidentialistor parliamentary, the election of a president will attract more voters than will the electionof assembly members.

21. Parliamentary regimes that follow the British example of single-member constituenciesrequiring a majority vote suffer some of the costs of presidentialism at the local level wherea defeated opposition party is more easily demoralized. Party discipline and membershipsupport is probably strongest in polities, such as in Western Europe, with multi-memberconstituencies and proportional (or list-based) electoral systems. In these systems voterstypically support their own party, regardless of candidate, and even though they win only aminority of the votes.

22. A current example in the USA involves the unwillingness of the Reagan administration to




276

accept any responsibility for long-term nursing care of the elderly. Instead, privateinsurance is viewed as the answer, even though this policy favors only the affluent.Middle-income persons in need of long-term nursing care must become impoverishedbefore public support can be secured. In most parliamentary regimes, by contrast, healthcare for the elderly is a governmental responsibility.

23. Constitutional review is not needed so much in non-presidentialist regimes. In single-partyregimes, the absolute power of a ruling party leaves no room for an umpire. Where there isno written Constitution, as in England, Parliament and the electorate have the finalauthority on constitutional matters. In a Commonwealth country, like Canada, wherethere is now a written Constitution, judicial review by the courts has come to play a moreimportant role, yet even so I doubt that it equals that of the USA in importance.

24. In Worcester vs. Georgia, Chief Justice John Marshall ruled that the laws of Georgia violatedtreaties with the Cherokee nation, and hence broke the Constitution. However, the courtwas unable to compel either the state of Georgia or President Andrew Jackson to obey itsdecision. Jackson is reported to have said, "John Marshall has made his decision, now lethim enforce it!" "In the end," writes his biographer, "Marshall had been able to donothing to protect them [the Cherokees] because the other two branches of governmentwould do nothing, and because most Americans wanted nothing done" (Severn, 1969:

232-3). This sad experience taught Marshall and his successors a strong lesson.25. This is not to say that the powers of the court were not subsequently challenged. Indeed,

President Thomas Jefferson wanted to "get" Marshall and launched his campaign byinducing Congress to impeach Justice Samuel Chase for his political views. "It was nosecret that the man Jefferson really wanted to oust was Chief Justice Marshall" (Severn,1969: 133). Marshall himself, as a witness in the proceedings, had to walk a tight-rope, buthe persuaded the senators that officials should be removed from office only for "high crimesand misdemeanors," as Constitutionally stipulated—such a rule, after all, would alsoprotect members of Congress in disputes with the president.

Subsequently Marshall built powerful constituencies for the Supreme Court. Thus inDartmouth College vs. Woodward he extended the Constitution’s contract clause to cover

corporations, thereby enormously expanding their power and provoking "a scramble forcharters as the full import of the decision became understood" (Severn, 1969: 181). InMcCulloch vs. Maryland he sustained the power of Congress at the expense of state

legislatures on Constitutional grounds (Severn, 1969: 187). For a scholarly overview of therole and politics of the court see Schmidhauser and Berg, especially Chapter 3,"Legitimacy and Judicial Power" (1972: 19-38).

26. A century and a half ago Alexis de Tocqueville wrote: "The peace, the prosperity, and thevery existence of the Union are vested in the hands of the seven Federal judges. Withoutthem the Constitution would be a dead letter ... Their power is enormous, but it is the

power of public opinion. They are all-powerful as long as the people respect the law"(1954: 156-7). When writing this, de Tocqueville must have reflected on the growingdisrespect for the law and the historical dynamics that led to the French Revolution and,eventually, the Napoleonic Code (de Tocqueville, 1955).

27. Article 1, section 10 of the Constitution stipulates that no State shall pass a law "impairingthe obligation of contracts." The first amendment declares that no one shall "be deprivedof life, liberty, or property, without due process of law."

References

Alexander, Herbert E. and Brian A. Haggerty (1987). Financing the 1984 Election. Lexington,MA: D.C. Heath.

Burns, James MacGregor and Jack Walter Peltason (1960.). Government by the People: The

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de Tocqueville, Alexis (1954). Democracy in America, vol. 1. New York: Vintage Books.de Tocqueville, Alexis (1955). The Old Regime and the French Revolution. New York: Doubleday.Fenno, R. F., Jr (1959). The President’s Cabinet. Harvard University Press.Friedrich, Carl J. (1967). "Some reflections on constitutionalism for emergent political orders."

In Patterns of African Development: Five Comparisons (Herbert J. Spiro, ed.). Englewood Cliffs,NJ: Prentice-Hall.

Greenberg, Edward S. (1980). The American Political System: A Radical Approach. Cambridge,MA: Winthrop.

Harris, Fred R. (1986). America’s Democracy: The Ideal and the Reality. Glenview, Il: Scott,Foresman.

Jackson, Robert H. (1987). "Civil science: A rule-based paradigm for comparativegovernment." Unpublished paper presented at American Political Science Associationconference.

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Lowi, Theodore J. (1976). Incomplete Conquest: Governing America. New York: Holt, Rinehart andWinston.

Morrow, William L. (1969). Congressional Committees. New York: Charles Scribner’s.Pious, Richard M. (1986). American Politics and Government. New York: McGraw-Hill.Riggs, Fred W. (1981). "Cabinet ministers and coup groups." International Political Science

Review, 4: 159-88.Riggs, Fred W. (1985). "Bureaucratic power and administrative change" (unpublished

manuscript).Rodgers, Harrell R., Jr and Michael Harrington (1985). Unfinished Democracy: The American

Political System. Glenview, II: Scott, Foresman.Schmidhauser, John R. and Larry L. Berg (1972). The Supreme Court and Congress. (esp. ch.3,

"Legitimacy and judicial power," pp. 19-38). New York: Free Press.Severn, Bill (1969). John Marshall: The Man Who Made the Court Supreme. New York: David

McKay.Weissberg, Robert (1980). Understanding American Government. New York: Holt, Rinehart and

Winston.

Wilson, Woodrow (1908). Constitutional Government in the United States. New York: Columbia

University Press.Wilson, Woodrow (1956). Congressional Government, fifteenth printing. Cleveland, OH: World

Publishing.

Biographical Note

FRED W. RIGGS is professor emeritus of political science at the University of Hawaii.Most of his research has been in the field of comparative and developmentadministration, with a focus on Third World polities. However, his first book,Pressures on Congress, involved a close look at the legislative process in the UnitedStates, and he has taught courses on American politics and administration in acomparativist framework. Recently he has become interested in institutionalistanalysis as a basis for reviving the comparative study of governance. He is the authoror editor of a dozen books and a couple of hundred articles. In recent years he hasdevoted much of his time to the conceptual and terminological problems faced by




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social scientists as they seek to write clearly and simply about a wide range of newphenomena and problems, working with a standing committee (COCTA) of theInternational Social Science Council, under the auspices of Unesco. ADDRESS:Department of Political Science, University of Hawaii, Honolulu, Hawaii 96822,USA.




Documents

The Survival of Presidentialism in America: Para-constitutional Practices