F.H. Buckley

F.H. Buckley is a Foundation Professor at George Mason School of Law and the author of “The Once and Future King: The Rise of Crown Government in America” (Encounter Books, April 8, 2014).

To Love America Well

With this I end with thanks a month-long stint as a Law and Liberty blogger. It’s been great fun, even with the distractions that came from pushing my book, The Once and Future King: The Rise of Crown Government in America.

The book’s thesis is that, from an admirable patriotism and a less attractive ignorance of history, American libertarians do not adequately defend liberty.

We are all patriots first and philosophers second—and that is just as it should be. For American theorists, patriotism means elevating people such as James Madison to the pantheon of political philosophy. The British have Hume and Burke, the French have Rousseau and Tocqueville—and the Americans have Madison and Hamilton. To be sure, they’re not mediocrities. But then they’re not the people who made the deals that produced the Constitution, or whose beliefs informed its content.

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Government as an Incentive Problem

There is a tendency to liken modern parliamentary systems to the kind of one-man rule seen in most presidential regimes. The claim, made by Don Savoie and others, is that prime ministers are all-powerful. But it’s more accurate to see parliamentary systems as a kind of corporate government, with the PM as CEO and the party bigwigs as a not impuissant board. The CEO is fine as long as he seems to be able to lead the party into the next election, but if not he’ll find he’s not really in charge. As happened to Thatcher in 1990 and Jean Chrétien in 2004.

The PM’s incentives are only imperfectly aligned with those of the party and the nation. The party has better incentives, and that is why parliamentary government more closely resembles the idealized assembly described by Edmund Burke in his Address to the Electors of Bristol, an assembly “of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide.”

In a presidential regime, whose incentives are most closely aligned to the nation as a whole? The president, of course, and with the authority of the only person elected by the people as a whole he is in a good position to stare down a speaker from someplace in Ohio you never heard of.

Unless the president is term limited. Then it’s just him and the historians.

The Fog of Constitution-making

From a Canadian perspective, America looks a wee bit like a unitary state and not a federal country. In Canada, provinces can opt out of the Charter of Rights, Quebec has its own immigration policies, and so on.

Remember Trent Lott? He belonged to something nasty called the Mississippi Sovereignty Commission. Sovereignty… The word gave me pause. I turned to the web site of my native province to see how it described Canadian federalism. What it said was that Canada was a federal country and that provinces were sovereign within their sphere of competence, as defined by the British North America Act. That wasn’t a partisan issue either. At the time the province was governed by the New Democratic Party, which is sometimes said to be socialist but which in reality occupies about the same turf as the American Democratic Party (minus the corruption). I then turned to the State of Mississippi website and, clicking on a link that said “Federalism,” was directed to another link for “Federal resources available to Mississippi residents.” So much for Mississippi’s sovereignty.

The constitutional history of the two countries illustrate the fog in which we live when we seek to predict the future. The Framers of the American Constitution expected that their national government would be dominated by the states. They’d likely appoint presidential electors, and when a presidential candidate failed to win a majority of the electoral votes (as would nearly always happen, they thought), the election would be decided by the House, voting by state. But over time all of this was turned upside down and the national government became much stronger than the states.

Canada had the opposite experience. The British North America Act was prepared in the midst of the Civil War, and the Fathers of Confederation sought to avoid what they saw as the excessive grant of states rights in America. And so they adopted Madison’s national veto, giving the federal government the power to disallow provincial laws.

Again, however, that’s not how it turned out. The disallowance power was almost never used, as the political costs of overturning the democratic choices of provincial voters was simply too great. The Privy Council in London also helped, by expanding provincial powers over “property and civil rights” under BNA § 92(13).

There’s a story here. When appeals were taken from the Canadian Supreme Court to the Privy Council, soon after Confederation in 1867, the provinces retained the services of a freshly minted barrister, one who had recently emigrated to Britain. He was very sympathetic to the provinces and refused to accept briefs from the federal government in Ottawa. His name was Judah P. Benjamin. Of him it was said that, having failed to persuade one country to adopt the doctrine of states rights, he succeeded with a second.

When Judges Talk to Politicians

Imagine, if you will, that a president who has not shown himself overly careful about a strict observance of the Constitution, announces that he does not propose to abide by the term limits of the Twenty-Second Amendment, and that he proposes to run for a third term. He notes that the members of the Supreme Court might have a problem with this, but argues that they should not have the sole authority to interpret the Constitution, that he also might do so when backed by the will of the people, and that democratic government is the grundnorm of the Constitution and that inconsistent principles such as term limits must yield to it. There’s this chap called Larry Kramer, you see…

No, I don’t see this happening anytime soon, but bear with me.

Now suppose that the Chief Justice sends the president a letter informing him that the Court would rule that such an election would be invalid. Would such a letter be an abuse of the separation of powers? Might a judge publicly opine about the constitutionality of a proposed law or executive order, save in a judgment? Might he do so privately to the president?

I’m not sure if I see an answer in the Code of Conduct for federal judges. We’re not talking about the kind of political advice that Felix Frankfurter gave FDR. Instead, we’re talking a legal question. But still…

That, very roughly, is the constitutional issue in Canada, where Chief Justice Beverley McLachlin sent Prime Minister Harper a letter, which he told the press he had refused to open. At issue was a constitutional principle, the right of Quebec to have three civilians appointed to the Supreme Court, in order that appeals from la belle province on questions of droit privé should not be decided solely by common lawyers. The government proposed to appoint, as a Quebec judge, a member of the Federal Court who was formally a civilian but whose docket consisted solely of the kinds of cases heard by the Federal Circuit in the U.S. The proposed appointment was within the letter but not the spirit of the Constitution, and one could see this going either way. What the Chief Justice wanted to do was tip off the PM that the Supreme Court would have problems with the appointment, and indeed the Court subsequently ruled that it was invalid. Harper is no fool, and one expects he knew what was in the letter. Perhaps he thought that he had more to gain than to lose in taking on a very left wing Court. That’s what I’d conclude from his public announcement that he refused to open the letter. Bit of a slap in the face, that.

So here you have a politician refusing to accept a letter from the Chief Justice on the grounds that this would violate norms of judicial integrity and separation of powers. Was Harper more Catholic than the Pope? Or is a Chinese Wall required as a prophylactic, to ensure that private communications not stray into a cosy Frankfurter-FDR relationship?

In which I review a book I won’t read

So there’s yet another biography of Madison out, and this one is by Lynne Cheney. I might have bought it for the author, not the book’s subject, as it’s hard to see this sort of thing as much more than a display of patriotism. The French have Rousseau, the Germans Kant, the British (or Scots) Hume. The Americans have Madison, and must make the most of him, even if he is not much read outside of their country.

One of the Philadelphia Convention’s turning points came on July 17, when Gouverneur Morris argued for an elected president on a theory of separation of powers. He was joined by Madison two days later, but Morris was there first. I suspect he persuaded Madison to drop the Virginia Plan and the idea of a Congressionally-appointed president because this would have strengthened the states, after the adoption of the Connecticut compromise with equal representation of the states in the senate. Everyone would have expected, moreover, that state legislators would mostly do the appointing of senators. Madison was a nationalist, like Morris, and what Morris had done was to unite the nationalists around the idea of an elected president. That’s not what the Framers thought they had agreed to, in the end, but as that’s how it turned out it’s Morris we have to blame.

What Madison had wanted was rep by pop in the House, an appointed Senate and a chief executive appointed by the legislature. He also wanted a “national veto” over state laws, and each one of these may be found in Canada’s constitution, the 1867 British North America Act. It’s all very well to call Madison the “father of the Constitution,” but do be careful about the constitution to which you refer.

Senate Reform in Canada

Last week the Canadian Supreme Court wisely rejected the government’s plans for Senate reform in Reference Concerning Reform of the Senate. The Harper government had proposed a number of changes, including the popular election of senators, through a simple Act of Parliament without a constitutional amendment and this, said the Court, the government could not do. The government had even contemplated abolishing the Senate altogether, and all of this was entirely inconsistent with the scheme of government enacted in the British North America Act. The Senate is an integral part of the government, the Court held, and absent a constitutional amendment it must remain an appointed and not an elective body. “Introducing a process of consultative elections for the nomination of Senators would change our Constitution’s architecture, by endowing Senators with a popular mandate which is inconsistent with the Senate’s fundamental nature and role as a complementary legislative chamber of sober second thought.”

What the Fathers of Confederation had rejected was an American Senate, with the gridlock of the separation of powers. Of course, the government must have expected this, and the Reference was little more than a bit of red meat tossed to its Alberta base, by way of diverting them from more substantive questions.

The President’s Non-enforcement Power

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Are there any limits to the president’s discretion not to enforce a law? Conservative scholars think so. I say they’re wrong, and that we are witnessing the rise of what I call crown government in The Once and Future King. Where conservatives see a constitutional crisis, I see the inevitable working out of the pathological logic of presidential government.

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Everyone expects the Inquisition

There’s been another naughty pastor. No, not the usual, but instead a minister who mentioned Christ’s name when asked to pray at a town council meeting. (They will do that!) Happily, the offending pastor need not repair to Capri, for the Supreme Court upheld the prayer in yesterday’s decision in Town of Greece v. Galloway. I’m especially delighted, since it means that pastors need not follow the advice I gave them in The American Spectator. Since obscene speech enjoys First Amendment protection, and since it doesn’t raise religious establishment problems, I suggested that pastors might prudently lace their sermons with a few F-Bombs.

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Puzzling Questions

the-once-and-future-king-20141Legal scholarship is too often a game of small ball, where vast efforts are expended in pursuit of minimal gains, like a game of football with 50 downs, or trench warfare where lives are expended for mere inches. How vastly more interesting are Sir Thomas Browne’s puzzling questions. “What Song the Syrens sang, or what name Achilles assumed when he hid himself among the women, though puzzling Questions, are not beyond all conjecture.”

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