Observations on the U.S. constitutional crisis
I’m a bit surprised that Pierre Trudeau’s famous “sleeping with an elephant” speech has not been getting more play in recent weeks:
What is happening in the U.S. right now can rightly be described as more than just a “twitch and grunt.” It is a full-scale constitutional crisis. And I’m not even talking about all the weirdness with Elon Musk. Trump’s executive orders are challenging the basic understanding that has prevailed since the Second World War about who exercises power in the U.S. federal government.
Unfortunately, calling it a “constitutional crisis” tends to make a lot of people’s eyes glaze over. Constitutional experts have an unfortunate habit of making constitutional issues sound incredibly boring. This is too bad, because there is a sense in which the “constitutional” level of politics is where the most important action occurs.
The other unfortunate thing about constitutional conflict is that it usually involves what everyone calls the “separation of powers” between the three branches of government. Most people who have taken a politics or civics class were forced to memorize the list of these branches (legislative, judicial, executive), but instructors often fail to explain why the separation of powers was such an important political innovation. The separation of powers is a really big deal! (as I shall try to explain below)
I do not intend to comment on any of the specific actions taken by the Trump administration. There’s so much going on that it’s difficult to keep track of, and the administration has already generated lawsuits that will take years to sort out. What I would like to do is take it back to basic principles of liberal-democratic political philosophy, in order to focus on what is so disruptive about the current state of play in the U.S..
First up, it is important to understand that the doctrine of the separation of powers represents an attempt to solve the most fundamental problem in political philosophy, which is often attributed to Plato in the form of a question: “who guards the guardians?” (or in the alternate translation, “who watches the watchmen?”). I know, I know, it’s actually from Juvenal, not Plato… quis custodiet ipsos custodes
The state is often defined, following Max Weber, as the institution that exercises a monopoly on the legitimate use of force in a given territory. When formulated in this abstract manner, it sounds like a bad idea to have an institution with that much power. Under particular circumstances, however, it can be good. For example, if the state were to use this power only to enforce the law, then it might be beneficial overall. Indeed, as social contract theorists like Hobbes and Locke argued, individuals might voluntarily surrender their right to engage in private uses of force in return for assurances from the state that it would use its power, not to oppress them, but to ensure order and enforce compliance with the law.
The big question then becomes, once you create an institution with this much power, how do you make sure that it only gets used for its intended purpose? How you prevent it from becoming a tyranny? Any particular state official can be controlled by setting someone “above” that person to supervise, but that solution is regressive – eventually you wind up with someone at the top, who is not supervised by anyone. This is in the nature of hierarchy. So how do you keep this person from using their authority merely to entrench their own power, rather than to advance the public interest?
Authoritarian political systems have yet to find a solution to this problem. After the cultural revolution, for example, China adopted a constitutional provision that barred their President from serving more than two terms of office. But when Xi Jinping came along, he simply amended the constitution to allow himself to stay in the position indefinitely. Vladimir Putin did essentially the same thing in Russia.
The naive view of liberal-democratic societies is that we solve this problem by having periodic elections, which allow the population as a whole to evict those at the pinnacle of power from office. And yet, as the example of Russia (and many other countries) shows, democratic elections are not sufficient, as powerful leaders can easily corrupt the democratic process. The most important bulwark is actually the separation of powers. (Indeed, this is a big part of what puts the “liberal” into liberal democracy).
The separation of powers strategy is intended to resolve the “watchmen” problem by breaking up state power and putting it into three different compartments, then requiring all of them to act together in order to employ force against a citizen. So under the classical definitions, there is the legislature, which provides a definitive statement of what the law is to be, the judiciary, which determines the application of that law to specific circumstances, and then the executive, which actually undertakes the enforcement actions needed to bring about compliance with the law. And so, for example, legislators are incapable of directing the use of force, or of imposing specific punishments on individuals, they can only make laws, which they must then hand over to the other two branches to implement.
In the classic doctrine of separation, as articulated by Montesquieu, excessive concentrations of power are avoided by encouraging a modest amount of rivalry between the three branches. Structurally, the arrangement is similar to that of a modern military, which is usually divided up into three or more different branches, each of which is encouraged to be mildly antagonistic toward the others. This reduces the chances of a military coup, because of the difficulty getting all of the branches to act in concert against civilian authority. (For example, if the army becomes seditious, one can always search for allies in the navy and air force.)
Conceptually, the separation of powers solution is inelegant, because there is often no clear specification of where “ultimate” authority lies. And yet, however unsatisfying it may be to intellectuals, the classical liberal aspiration is to make the ongoing tension between the branches of government a feature, not a bug, of the constitutional order. The expectation is that it will generate a certain amount of internal paralysis, so that the state will only be able to act coercively when there is widespread agreement that it should do so.
In practice, the liberal arrangement has the obvious potential to generate problems, because in cases of conflict between the branches there is no clear adjudication procedure. (This is similar to the problem that arose under the old medieval Gelasian arrangement, according to which the emperor and the pope were each accountable only to God, without any procedure for dealing with cases where they disagreed with one another.) Because of this, liberal-democratic societies typically produce, through a quasi-evolutionary process, a set of constitutional conventions to address this impasse problem by granting ultimate decision-making power to one of the three branches.
One of the major differences between Western political systems is that different countries have made different decisions about which branch should be “supreme” over the others, with some choosing the legislature, others the judiciary, and others the executive.
Canada is governed by a norm of parliamentary supremacy, which means that regardless of what sort of question or conflict arises, ultimately any issue can be settled by a vote of parliament. This feature of our system was inherited from Britain, where legislative supremacy is a constitutional convention. (This convention was preserved in our country, in the transition to a written constitution, through the introduction of the notwithstanding clause into the Constitution Act of 1982.)
By contrast, France is governed by a norm of executive supremacy. (For a pretty good explanation of how this works, along with a defence of the practice, see this book by Pierre Rosanvallon.) This is reflected most clearly in the fact that the French President, who is the head of the executive branch, appoints the Prime Minister. There are mechanisms through which the legislature can contest this, but so far the convention of deference to presidential power has prevailed.
The U.S., by contrast, has evolved into a system governed by the norm of judicial supremacy, with the Supreme Court acting as the ultimate authority over legislative and executive decisions. It is important to emphasize that this is also a constitutional convention; it is not part of their written constitution. (This is an important point: the fact that a country has a written constitution doesn’t mean that it doesn’t also have an unwritten constitution, or that the former is more important than the latter.)
There is an important wrinkle in all of this, which is that many of these systems were not invented from scratch, but rather evolved from older political systems. In particular, the British system evolved from a feudal monarchy. What we call “the executive” is a descendant of the power of the king and the “legislature” is descended from the body that used to represent the nobility (i.e. parliament). The British decided to keep the monarch unelected, but slowly transfer all of his/her legislative powers (de facto, if not de jure) to parliament. The lower house of parliament was then transformed into a democratic legislature through extension of the franchise.
The Americans, on the other hand, decided to preserve many of the traditional powers of the king in the office of the President, but to give the office democratic legitimacy by having its occupant be elected. Thus the U.S. constitution essentially froze into place, in the office of the Presidency, many of the powers of an 18th century monarch. For example, the U.S. President’s cabinet functions in much the same way that the British cabinet functioned in the 18th century, when it was basically a group of advisors to the king. In parliamentary systems, it only became conventional for cabinet to consist of elected members of parliament much later on – an evolution that never occurred in the U.S.
As Juan Linz pointed out (in a justly celebrated article), presidential systems tend to suffer from a particularly acute version of the impasse problem. In a parliamentary democracy, legislative supremacy is a pretty stable arrangement because only members of parliament are able to claim democratic legitimacy. Appealing to the sovereignty of the people, along with the representative principle, is usually enough to get the executive and judiciary to back down in a confrontation. In a presidential system, by contrast, both the head of the executive branch and the members of the legislative branch are able to claim democratic legitimacy. This is one of the reasons, Linz suggests, that presidential systems are so unstable. When an impasse develops between the executive and legislative, neither side may feel any need to back down. This often leads to the intervention of a nondemocratic force – perhaps the courts, or in the worst case the military – to break the impasse
Again, different societies try to avoid this problem in different ways. One way is to strip the president of any real power, and to make that person just a figurehead (such as in Germany). Another way is to give the President a lot more power, which is what France did in 1958 (with the founding of the Fifth Republic). In the U.S., however, no such definitive moves have been possible, because of the constitutional straightjacket, which prevents any fundamental reform of the 18th century division of powers. The Trump administration is now upsetting all of this, by openly defying Congress (refusing to implement laws that have been passed, as with the Tiktok ban) and, increasingly, the judiciary (dropping the Eric Adams prosecution).
The key thing to recognize is that Trump is challenging a constitutional convention. If successful, his actions may create a permanent realignment of power between the branches of government in the U.S. The fundamental problem, I should note, is that the U.S. has a completely dysfunctional legislature. Since power abhors a vacuum, the rise of judicial power in the 20th century was driven by this legislative weakness. People wanted certain outcomes, and since Congress was unable to deliver, they were happy to have those outcomes imposed by the courts. But judicial supremacy has a number of pathological effects on government, including a near-complete disregard for questions of cost and efficiency. The current play by the Trump administration to expand executive power is a response to both of these issues — the absence of an effective legislature and the accumulated inefficiencies of judicial rule.
All of this seems likely to further exacerbate the tragedy of the Democratic Party in America, which has basically painted itself into a corner on these issues. Democrats are convinced that many of the problems faced by Americans can only be resolved through an expanding the role for the public sector. They have trouble convincing Americans of this, however, because the U.S. public sector is supremely incompetent when it comes to carrying out even simple tasks. The reason that the U.S. public sector is so incompetent is that the executive branch is shackled by accountability relations, both to the public and to the courts, that are inconsistent with efficient public administration. The only way to solve these problems is to grant more discretionary power to the “administrative state,” which is to say, the executive. Democrats, however, are not willing to do this, because they are too afraid of what Republicans would do with unshackled executive power.
The problem is further exacerbated, at the moment, by the fact that Republicans are acting on so many bad ideas for the reform of the administrative state. This leads Democrats to want to fight back against the changes, using the only remedy currently available to them, which is judicial power. This is why Trump’s actions have generated an average of two law suits per day since he has taken office. Yet by relying on the judiciary to stymie executive “overreach,” Democrats are doubling down on the most dysfunctional aspect of the American system. After all, if there is one thing the U.S. government is good at doing, it’s preventing anyone from changing anything. This “vetocracy” is the most significant barrier to the realization of progressive policy goals. And yet Democrats are now relying on precisely these features of the system to control Trump.
The lesson they will learn from all this, somewhat predictably, aligns with the conservative view of the Roberts court, which is that the administrative state needs to be subjected to more careful judicial oversight. At best, this will reinforce the status quo. But it is precisely frustration with the status quo that is driving voters toward increasingly desperate solutions, like voting for Donald Trump. I find it extremely difficult to see how anyone breaks out of this vicious circle.