—Miguel Schor, Professor of Law, Associate Director of the Drake University Constitutional Law Center, and the Class of 1977 Distinguished Scholar
[Editor’s Note: This is one of our ICONnect columns. For more on our 2024 columnists, see here.]
Presidentialism has a comparatively poor democratic track record. In a famous essay entitled “The Perils of Presidentialism” written in 1990, the Spanish political scientist Juan Linz observed that the “vast majority of the stable democracies in the world today are parliamentary regimes” with the United States being the most important exception. Linz argued that parliamentary government, which fuses the legislative and executive branches, is a better institutional design than presidentialism which separates the two branches. Presidentialism is prone to break down as conflict between the two branches is endemic and over time presidents emerge victorious with too much power. Presidentialism, unlike parliamentarism, has fixed terms and the inability to recalibrate politics during a crisis has often proved deeply problematic. These are undoubtedly the lessons to be drawn from the experience of Latin America with presidentialism, which is where Linz drew his empirical lessons. The issue is what lessons can be gleaned about the perils of presidentialism from the democratic travails currently facing the United States.
The United States will hold a plebiscitary, post-truth presidential election on Nov. 5, 2024. The term post-truth became Oxford Dictionary’s word of the year in 2016 following the twin political earthquakes of that year—Trump’s election and Brexit—which were built on misrepresentations and polarizing rhetoric. No post-truth claim has worked greater democratic harm, however, than the assertion that Biden was not legitimately elected president in 2020. Biden won the election, but the false belief that he did not paved the way for the January 6, 2021, attack on the Capitol. Those post-truth beliefs have exacerbated the tensions surrounding the 2024 election. The election will be a plebiscite between a charismatic candidate facing multiple indictments who denigrates institutional checks on power and a more conventional candidate with long experience in government who believes in institutions.
Linz was quite right to argue in 1990 that the United States enjoyed success with presidential government because its parties were moderate and willing to compromise. Presidentialism (and separation of powers) worked tolerably well from the 1930s until the 1990s as the political parties were ideologically heterogeneous and capable of bargaining. Starting in the 1990s, however, the parties became increasingly ideologically polarized and gridlock became the norm. The result has been democratically disruptive. The United States now enjoys an incompetent federal government that facilitates citizen mistrust of institutions while providing a fertile terrain for demagogues who promise that they alone can fix the nation’s ills.
The Trump presidency and its political aftermath add important data points to our understanding of the perils of presidentialism that complicate Linz’s focus on institutions. Democratic erosion is fueled by systemic attacks on the conventions—the political understandings—that undergird institutions. British constitutionalists have long argued that conventions, which are the unwritten “rules” of political morality, are critical to democratic survival. The two most important democracy sustaining conventions, as the political scientists Steven Levitsky and Daniel Ziblatt point out, are “mutual toleration, or the understanding that competing parties accept one another as legitimate rivals, and forbearance, the idea that politicians should exercise restraint in deploying their institutional prerogatives.”
The emergence of these twin norms was critical to the success of the early American republic as the nascent political parties learned, in the jostle of political competition, to accept the opposition as legitimate. The institutional complexity embraced by the framers requires that political actors compromise by not pushing their institutional prerogatives to destructive ends. Separation of powers worked in the early American republic because the representatives of the different branches deliberated and argued over the “precedent-setting nature of contemplated action.” The American constitutional experiment, in short, succeeded in the early nineteenth century less by the brilliance of its design than by the emergence of the norms needed to sustain republican government.
The democratic travails currently facing the United States illustrate a submerged vice to presidentialism that Linz failed to appreciate because his data set was primarily based on the historical experience of the republics of Latin America. Linz wrote his piece, moreover, in 1990, which is when democratic erosion in the form of extreme polarization began to take root in the United States. That vice is that the conventions needed to sustain republican government have proven to be built on rickety foundations. Trump, both as president and as a candidate for the presidency, has been able to systematically erode (with the help of willing collaborators) the conventions needed to sustain republican government with remarkable ease. Parliamentarism, it turns out, does a better job of sustaining the political-constitutional conventions critical to democratic survival for three reasons.
First, presidentialism is open to capture by an outsider short on political experience but long on media exposure. Outsiders typically exacerbate executive-legislative conflict as political parties help socialize politicians in the “implicit rules that govern the democratic game.” Candidates do not need a political party to run for the presidency and, in any case, the link between a presidential candidate and his party can be purely opportunistic. Parliamentary regimes obviously are not immune to a takeover by an unfit outsider but peer review by party elites play a larger role in candidate selection which, much as Hamilton surmised, will temper this possibility.
Second, presidents wear two hats as they are both the head of government who has the job of implementing and formulating policy and the head of state who represents the nation. “Many parliamentary governments,” on the other hand, have “non-executive heads of state who represent the nation.” The model for this division is the British constitution which divides the government into an efficient portion—parliament and cabinet government— that does the work of governing and a dignified portion—the Crown—that provides legitimacy. This division of executive power proved influential to European state builders who believed that the presence of a ceremonial head of state would make it difficult for a demagogue to rise to power. A ceremonial head of state can reduce the stakes of politics by reminding competing factions of the importance of conventions. The soft power of ceremonial heads of state will be reduced if the conventions that cabin political competition and dampen polarization are eroded whereas presidents may find it in their self-interest to attack such norms.
Third, parliamentary efficiency has, somewhat paradoxically, an important pay-off in terms of limiting power. Constitutions require a host of sub-constitutional rules found principally in statutes to operationalize and limit executive power. Legal academics Bob Bauer and Jack Goldsmith, for example, note that the Trump presidency ruthlessly exploited weaknesses in the executive branch and argue that reforms are critical to protect against future abuses of presidential power. Reforms of this nature will prove remarkably difficult as elected officials care about partisan advantage but, contrary to the framers’ vision of separation of powers, often do little to protect the prerogatives of their respective branches.
It was long thought that wealthy, long-standing democracies were immune to democratic breakdown and erosion. A global democratic recession is puncturing that belief and testing that empirical observation. Presidential and parliamentary governments alike are facing exogenous shocks in the form of climate change, illegal migration, globalization, and new information technologies. The United States, however, is likely to face a more severe democratic crisis than its peer (and overwhelmingly parliamentary) democracies for two reasons. The first is that presidentialism, on balance, is somewhat more susceptible than parliamentarism to the erosion of democracy sustaining norms. The second is that no long-standing democracy enjoys the degree of institutional and electoral complexity that Americans take for granted as the norm. The crises the nation faces today require a legislative response. The likelihood of that occurring is low, which will aid the political prospects of demagogues who feast on democratic dysfunction.
Suggested citation: Miguel Schor, The Perils of Presidentialism (and the Lessons of the United States), Int’l J. Const. L. Blog, Apr. 10, 2024, at: http://www.iconnectblog.com/the-perils-of-presidentialism-and-the-lessons-of-the-united-states/
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