There are no copyrights on book titles. F. H. Buckley nevertheless shows remarkable audacity in borrowing The Once and Future King from T. H. White’s children’s classic, published in 1958. White enchanted his readers with a fantasy based on the Arthurian legend, replete with swords and sorcery, while Buckley has given us a sobering account of the transformation of the American presidency into an elective monarchy. Nothing seems to connect these two works—Buckley makes no effort to do so—except, perhaps, for one improbable accident: White’s story, adapted to the Broadway stage as the musical Camelot, became the lens for liberals’ fanciful interpretation of John F. Kennedy’s presidency, a template today for progressives’ worship of their president-king.
Buckley devotes much of his time to historical analysis, but his book could easily highlight many stories on the evening news. President Obama began this year telling Americans that he was prepared to govern with a “pen and a phone,” a rare promise on which he has remained true to his word. Hardly a month passes in which the president has not acted on his own discretion, neglecting or contravening the will of Congress.
How does one grow presidential power? Let us count the ways: by selective enforcement of laws, by running government programs with unconfirmed “czars,” by acts of mass clemency, and by outsized use of regulation. Barack Obama is certainly not the first to avail himself of some of these techniques. Yet one fact is undeniable: He has brought governance by decree out from the shadows and into the bright light of day, changing it from something presidents once did but preferred not to speak about, to something that the president openly celebrates before cheering partisans.
Many remark on the advent of a “new normal” in the economic realm, in which millions now accept as a matter of course the absence of employment opportunities. Should people not also be worrying about a “new normal” in politics, in which the former balance among the political branches has been permanently subverted?
F. H. Buckley does not directly attribute the emergence of what he characterizes as this new “constitution”—our fourth by his count—to the Obama presidency. Though an admitted con-serv-a-tive, he is at pains to emphasize that his analysis is driven by a concern with broad institutional developments, not partisanship, which is more than can be said for the legions of commentators who have exhausted themselves going back and forth in their constitutional interpretations to fit their preferences for the person who occupies the White House. Still, since so many of the examples Buckley catalogues are drawn from recent events, it seems fair to say that the Obama presidency represents, for him, the fullest flowering of the new system.
For the progressive establishment in both the academy and the media, this concentration of power in the presidency was not meant to be. Recall how the organs of progressive opinion excoriated George W. Bush in his second term, not just because of his policy decisions but on the higher grounds of abuse of power. Progressives converted en masse to a version of constitutional literalism and convinced themselves that their leader must subscribe to it as well. And, directly to the point, Barack Obama engaged in enough rumblings about the outsized character of the executive power to satisfy the faithful. Fox News now specializes in rolling out some of the old recordings in which Obama, reminding his audiences of his pedigree as a teacher of constitutional law, talked the talk; condemning, for example, Bush “signing statements” that “undermine congressional instructions as enacted in law.”
Yet the truth is that Obama never articulated a full-blown doctrine of executive power, whether because he was uninterested or because he was too shrewd to tie himself down. If anything, he has remained an advocate of the living Constitution, which, so far as the powers of the presidency are concerned, has meant a Constitution that lives for him.
Obama’s use of his powers has met with a variety of responses from progressives. For a few, like the legal scholar Bruce Ackerman, who invested so much intellectual effort in attempting to curb the supposed executive abuses under Bush, Obama’s practices have been a matter of bitter disappointment. From conviction and a need to protect professional reputation, some have spoken out; most progressives, however, have turned a blind eye. If there is one topic that must not be broached in polite conversation, it is the question of constitutional limits on presidential power. Those who have braved this ban—at least in the secret compartment of their own thoughts—have probably come to admit to themselves that they were, all along, less devoted to the Constitution than to that more fundamental and ancient principle of right: Salus Obama suprema lex esto (The good of Obama is the supreme law).
Yet so bald a declaration no doubt would have left some uneasy and in search of a publicly defensible doctrine to justify Obama’s rule by the pen. They found it in the argument, conceived of by intellectual enablers inside the community of political scientists, regarding congressional “dysfunctionality.” Because of the grave emergency that is the opposition party in Congress not consenting to the president’s agenda, ordinary procedure and constitutional restraints must be relaxed or suspended.
A strong point of Buckley’s book is that he does not limit himself to the study of the American presidency but gives extensive treatment to executive power in Great Britain and Canada. Buckley speaks, in particular, with great intelligence about institutional developments in Canada—at least I believe he does, since there has never been an American with sufficient knowledge of that country’s history to qualify as a competent judge. Buckley is no exception; he is Canadian. His comparative approach enriches the analysis. Given the common elements of their history, people in all three nations have an idea of what is meant by “crown government,” or the rule of one person. At some point in the 19th century, all three nations managed, by different means, to move away from this system; but here they are today, Buckley argues, all slouching back to it. Modernity “insists on one-man rule. As in America, this is unlikely to change in Britain and Canada.”
Faced with this disappointing prospect, Buckley seems of two minds about what might be done. On the one hand, for much of the time he comes close to suggesting that very little or nothing is possible. His comparative perspective serves to reinforce this conclusion, for if all of these nations are experiencing a similar result, it must be because of larger trends that are “irreversible.” Buckley cites the rise of the regulatory state, which gives broad discretion to administrative agencies (and, ultimately, to the executive), and the advent of the modern media, which inevitably favor the individual leader over a collective assembly. Add in mass elections and a public infatuated with charismatic personalities, and you have a recipe for crown government. Personal rule is our fate, and the best we can hope for is to avoid outright tyranny. If Buckley were asked, as Benjamin Franklin was in 1789, “What kind of government will we have?” his response might be: “An elective monarchy, if you can keep it.”
Yet it is doubtful that Buckley would have written The Once and Future King just to preach resignation. His prose explodes with energy and his disposition seems to favor the notion that if something must be done, something can be done. One strategy he suggests to arrest the further growth of executive power—a practical strategy that could be implemented within the current overall framework of American government—involves three partial remedies: First, institute national referenda, which would provide a counter-balance to the president’s public opinion mandate; second, adopt congressional reforms, which would make Congress more respectable and better able to stand up to the president; and third, make use of impeachment.
This attempt at provocation is amusing, but one wonders why Buckley does not go all the way and recommend regicide. Crown government never fully recovered after Charles I was dispatched.
Buckley’s other strategy falls into the realm of the fanciful, coming (as he says) “a bit late in the day.” It is for America “to adopt the parliamentary form of government.” Fanciful or not, this is where his heart lies, and much of the book is devoted to exploring the question of which is better, a parliamentary system or a separation-of-powers system. This old chestnut, once a staple of introductory university courses in American politics, has by now been baked, roasted, pan-fried, and, most recently, microwaved. Apologies are owed to the thousands of students whose intellectual development has been sacrificed on the slaughter bench of a vain pedagogical exercise—vain, that is, if its purpose is not merely heuristic (to understand something about these systems) but meant to offer instruction about a real choice.
As for which system is better in the abstract, no less an authority than Hil-lary Clinton could rightly ask, “What difference, at this point, does it make?” Legal framework is so embedded in the place where it grows up—its traditions and its party system—that it is impossible ever to know what results from the framework and what from the context. Nations that have enjoyed a fair degree of success—and America is surely one of them—would accordingly be foolhardy to indulge in experiments to change, wholesale, their political system.
Buckley provides an excellent survey of the issues in the old debate about democratic constitutional forms, and he has added both new considerations and modern methods of analysis. For the record, his conclusion is that a parliamentary system, hands down, is superior: not (as noted) for obviating one-person rule—that is impossible—but for better restraining it (prime ministers can more easily be sacked than presidents, for example) and for promoting more efficient government.
In the end, Buckley finds little that is attractive in a messy system of separation of powers, plagued as it is by rent-seeking legislators and in which there can be years of unresolved deadlock among competing power centers. Deadlock, however, shows how much power in the United States still lies with Congress, even accepting part of Buckley’s warnings about personal rule. Without deadlock, we would have today—and this is just for starters—a second and third stimulus package, much higher tax rates, universal preschool education, and wind turbines stretching from sea to shining sea. With all their power, presidents have often found their second terms to be, on the domestic side, experiences in pure frustration.
Many American readers might grant Buckley most of his points about the superiority, in the abstract, of a parliamentary system—and do so without being unduly disturbed. The fact is that this country has rarely sought to proselytize on behalf of the Constitution as distinct from representative government generally. Presidents have long met with democratic prime ministers without insisting on regime change as a precondition for discussion.
Where Buckley might definitely ruffle some American feathers, however, is in his contention that the Framers never wanted, indeed never really sought to institute, a separation-of-powers system, which only fully developed later. What they favored—“they” being the delegates to the Philadelphia Convention—was a system of congressional government and thus, really, a system akin to the parliamentary model:
With the fortuitous help of this historical discovery, Buckley hopes to eliminate all originalist claims in support of the separation-of-powers system and keep alive his slim but undying hope for a Prime Minister Marco Rubio or Elizabeth Warren.
Fortunately, authors are not responsible for the hype publishers put on book jackets; but the claim, in this case, that Buckley “debunks” the “myth” of the separation of powers—or that he intended to—seems about right. Americans can rest assured, however, that the myth is no myth, and that nothing of value has been debunked. It comes as no shock, really, to learn that many of the delegates entered the 1787 convention inimical to a strong executive in a separation-of-powers system. And it is no surprise, either, that many of them left the convention in the same state of mind. After all, hadn’t the United States recently fought a long and brutal war against the alleged tyranny of George III?
But there was a critical group of delegates that included Gouv-er-neur Morris, James Wilson, Alexander Ham-il-ton, James Madison (by the end), and, presumably, George Washington, who, drawing on the model of New York’s constitution, thought that an independent executive was essential to the new system they aimed to create. The constitutional system was meant to correct for excess in the revolutionary spirit and to establish a strong executive without instituting crown government. It was this position that was written into the text and approved by the delegates.
From an originalist perspective, what is important is not what this or that delegate may have thought at this or that moment, but what is in the text of the Constitution; and where there are questions of how the text is to be understood, originalists point to how it was understood by those who ratified the document, as they possessed the relevant legal authority. By this stand-ard, no one was under any illusion.
Forget, as Buckley does, about the proponents of the Constitution who defended a strong presidency. Look, rather, at the opponents. One of their main objections to the Constitution, echoed in state after state, was that it provided for too strong an executive. An even more compelling piece of proof against the idea that the Framers favored “congressional government” is to be found in Washington’s presidency, which is well known for its demonstrations of strength and independence. Are we to suppose that this man, who presided over the Constitutional Convention, was in error about what was in the Constitution? Or worse, that this man, who as a youth purportedly could not persist in a lie about chopping down a cherry tree, engaged in the unseemly business of fabricating and perpetuating a myth?
Before our current president-king abdicates, some serious reflection needs to be given to how we can restore constitutional balance in our separation-of-powers system. Doing so will require a return not to the thought of the original progressives from the turn of the 20th century, who rejected the idea of separation and sought to build an outsized president who would dominate the whole of American politics, nor to the progressives of 2004-08, who sought to tie in knots the president’s field of action in foreign affairs. It will require, instead, a return to the logic of the Framers who fashioned the Constitution. By this logic, it is inadequate to speak of a one-dimensional characterization of the presidency as strong or weak: Determining the president’s role in this system depends on distinguishing between a zone of law, where the guidance of policy by general rules is possible and in the public interest, and a zone of “high” discretion, where policy cannot be set, or set effectively, by general rules.
The empire of law applies mostly in domestic affairs, the empire of high discretion in foreign and national security affairs and in situations of grave emergency. The Constitution places the zone of high discretion in large measure under the control of the executive and the zone of law under the control of the lawmaking process, where Congress and the president share control. The great imbalance that has grown consists of the president’s accumulation of more of the power in this realm, sometimes assuming it outright and increasingly using control of “low” discretion, which is granted to regulatory administration in modern government, not just to administer but to set broad “legislative” policy.
Every crisis presents an opportunity, and conservatives must ready themselves to articulate a doctrine of constitutional balance. This task requires the discipline to avoid the trap of deriving constitutional principles from a reaction to recent partisan experience or from calculations of near-term partisan advantage. Just because a president or a Congress has exercised power in ways one disapproves of, there is no reason to curtail and deny that power.
If conservatives prepare themselves to lead, they may be surprised at the prospect they have of succeeding. Not only has progressive constitutionalism discredited itself intellectually; if it appears that there is a good prospect of a Republican president being elected in 2016, progressives may be desperate to deal. In the zone of law, progressives—count on it—will not want to extend to a conservative president the new pen-and-phone powers that they have so slavishly and ignominiously acquiesced to over the past six years.
By renouncing these powers, conservatives must demand of progressives that they, too, elevate the limitations to a constitutional status. To avoid punishing themselves for following principle, conservatives must add a proviso that the next president will reserve the option to undo by the pen whatever the last president did by the pen. This proviso would be advanced not in the name of claiming any inherent presidential power but in the name of correcting an unconstitutional abuse of power. After that, the pen goes back into the pocket.
In the other zone of high discretion, a different strategy should be followed. Conservatives should “pocket” a good many of President Obama’s claims and practices and endorse many of his signing statements. No matter how much conservatives might have disagreed with how Obama used his discretionary powers, what matters, from a constitutional perspective, is that he used them. President Obama renounced much of what lecturer, senator, and candidate Obama once took to be progressive constitutional doctrine.
His stand as president should be taken as the new and true progressive standard, isolating the old progressives who never tired of screaming about the imperial presidency for partisan advantage. Of course, there has always been debate about exactly where in security and foreign affairs the zone of law ends and the zone of discretion begins. There is no magic formula. But the Constitution establishes, the nation wants, and the world needs an American president with broad authority in this preeminently executive realm.
Achieving constitutional restoration, even under the best of circumstances, is a tall order. F. H. Buckley has helped to pose the problem. For its solution, we will need all the wit, wisdom, and wizardry of T. H. White’s Merlin.
James W. Ceaser is professor of politics at the University of Virginia and a senior fellow at the Hoover Institution.
