The Balkinization blog held a symposium the past week on Bruce Ackerman's new book, The Decline and Fall of the American Republic. Stephen Gardbaum wrote one of the reflections on Ackerman's book, and he also provides a nice recap for the uninitiated:
Bruce Ackerman’s The Decline and Fall of the American Republic is a profoundly important constitutional wake-up call. It presents a powerful, multi-layered, yet highly accessible argument that the body politic faces the serious and unprecedented structural risk of presidential extremism and lawlessness -- and a series of new checks and balances that offer the rare combination of pragmatism and originality.
I have not read Ackerman's book yet, so I cannot comment on it.. However, I would like to comment on Gardaum's essay, Empire Rises. Gardaum agrees with Ackerman's assertion that the presidency has turned out to be the branch that has proven the most dangerous to republican government, but, unlike Ackerman, he does not want to let the Framers off the hook. He contends that the Framers had all the evidence they needed to draw the right lessons. They simply decided to institute a strong executive:
I think the Framers’ error went beyond this wrong guess to the governmental structure that they established. This structure was inherently and latently flawed at the outset in the way that has come to pass, not precisely of course but generally – and the knowledge to have avoided this was available to them at the time. For the republican revolution that they wrought was not entirely without precedent. The first took place in 510 B.C. when Rome expelled its last king and established the republic. The new republican constitution split both the executive and legislative branches of government into two or more. It replaced the king with two magistrates, the consuls, who were jointly endowed with full executive power, and separated/divided legislative power among several citizen assemblies. The Roman Republic, which became a superpower along the way, lasted for just under five hundred years before it fell when a concentration of power in just one person – Augustus – effectively returned the state to a monarchy under the Empire. In deliberately rejecting the plural executive of the Roman Republic, a far larger version of which was tried and failed during the Articles of Confederation, the Framers hewed too closely to the monarchical structure of government they were nominally rejecting. They effectively replaced the king with a president, and the distinctive British conception of separation of powers between King and Parliament with the analogous one between President and Congress. Hamilton’s Federalist 69 on the differences between the powers of King George and (likely) President George – including an absolute versus a qualified veto of legislation – is arresting in its strained, almost scholastic reasoning and “methinks he protests too much” quality.
I think modern technology, the Party system, and the nature of modern warfare have enabled the presidency to become much more powerful than even Hamilton could have imagined, but the seeds of the imperial presidency were enabled by the Constitution. I have often wondered at the vast number of similarities between the American presidency and the British constitutional monarchy of the eighteenth century. If this analogy is truly the root of the Framers' conception of the presidency, then the implications for American constitutional principles are vast, e.g., the congressional power to "declare war" truly is only a legislative function and the authority -- indeed, the expectation -- to wage war rests with the executive. In seventeenth-century Britain, the legislative check on war-making was the power of the purse.
To provide true legislative oversight of the executive, the parliamentary system might, in some delicious irony, be the most effective structure. Without its separation of powers, parliamentary government provides the legislature the ultimate structural control of the executive: the Government comes from and answers to the majority of Parliament.
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