Has America Become an “Elective Monarchy”?
2014-10-26 · Guest: Frank H. Buckley (Author and Law Professor) · 52:48
The evolution of the American presidency into a monarchy
Bob Zadek interviews Frank H. Buckley about his book “The Once and Future King,” exploring how the American presidency has evolved from a limited executive role into a position with near-monarchical powers. They discuss the structural differences between the US system and parliamentary systems, the historical shift toward executive dominance, and the cultural veneration of the president.
Topics: Constitutional Law, Executive Power, Presidency, Parliamentary Systems, Separation of Powers, American History, Frank H. Buckley
Speakers: Bob Zadek, Frank H. Buckley
Introduction and “Hail to the Chief” [00:00]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show. That’s my name. I’m your host, Bob Zadek, every Sunday at 9:00 AM. Thanks so much for listening. We are the only live libertarian talk radio show on the air all weekend. Thanks so much for listening. 800-345-5639 is the button on your speed dial to join my conversation.
Forgive the rather pompous introductory music. That was, as I’m sure you all know, “Hail to the Chief.” “Hail to the Chief” is the traditional ceremonial music that is played when our king—I mean, president, sorry—when our president enters the room. It provides the appropriate pomp and circumstance for the majesty of the office.
That is the subject of today’s show. Do we have a king? Do we have a president? We all are disturbed by what seems to be a distortion in what we understood to be a balance—emphasize balance—of power among the executive, legislative, and judicial branches. The president seems to have tipped the scales so that most of the power resides in the presidency. Is that what the Founders wanted? Did the Constitution get it wrong? Or if the Constitution got it right, how did we go astray?
All of these questions have been troubling me for some time. I watch the media, I watch what’s going on, and it somehow strikes me as not how it was supposed to be. I couldn’t figure out what was astray, what had happened to our country, until I was introduced to Frank Buckley’s book, The Once and Future King: The Rise and Fall of Crown Government. Frank Buckley is about to join us this morning for an hour of explanation as to what exactly went wrong, if anything. Do we have a king? Do we have an office which is more than a king? And how do we get back the modest powers of the presidency that we all believe we’re supposed to have? Frank, thanks so much for joining us this morning.
Frank H. Buckley: Bob, thanks so much for having me. It’s great to be on.
The Framers’ Original Vision [03:10]
Bob Zadek: Well, Frank, your title is rather challenging, if not in-your-face: The Once and Future King. We fought, we are told, we fought a revolution to shed ourselves of the power of the king, of the power that resided too much, so say the Founders, in one individual, in one man—the king. The Founders abhorred any concentration of power, and if they had one driving motivation, it was to deliver power to the people through their elected representatives and not have the power reside in what was in England an hereditary office, unelected. Did the Founders mess up? Do we have a king? Your book seems to suggest that the president has somewhat kingly powers, if not more powers than a king would have. Tell us about the premise of the book.
Frank H. Buckley: Well, absolutely right. I mean, by the way, but first of all, let me say something on behalf of the Founders or the Framers. To say that 227 years later we ended up with something they didn’t like is merely to say that they weren’t omniscient. I mean, to a large extent, they had it running pretty well until fairly recently. And, you know, the idea that you could design a constitution that would work for 200 years—it’s not a criticism to say that 225 years later it didn’t work so well. These were just the most brilliant people. And not just brilliant, but with a political sense, a practical reason that a mere theoretician wouldn’t have. Thank God they were not academics. They were people in the real world. They had thought about the problems, and their debates are the most fascinating set of readings on the structure of liberty. I mean, it can’t be beat anywhere else, not even the Federalist Papers.
Bob Zadek: And I should mention that we are fortunate because James Madison, who was the man most instrumental—not the “Father of the Constitution” as most Americans believe, but certainly very influential—James Madison, although he was not the secretary of the Constitutional Convention, every night after these long debates went back to his room and from memory and from notes reconstructed, often verbatim, the debates. And he kept that book secret for many, many years so the country would not be affected by the debates. And those, much later in his life, were released to the public, and they are quite readable, and they become one of the crucial source documents in understanding the debates.
Frank H. Buckley: Well, you know, we have to thank him for that. But you know who I thank also is Dolley Madison. Because when the British burned Washington, we all know she walked out with the Gilbert Stuart portrait under one arm, but on the other arm she had Madison’s notes. Full marks for Dolley.
The Invention of the Presidency [08:31]
Bob Zadek: So we have the benefit of contemporaneous records of the debates. Now, the Founders, of course, had in their mind an important—and one of the very important and somewhat—it took a lot of time in sorting out this position which, frankly, the Founders invented. It didn’t exist on earth, which was the office of the president. It never existed before on earth. So they were inventing something that had never existed. And what was their thinking? How did they envision the office of the president?
Frank H. Buckley: Well, it’s interesting. You know, in the debates they go back and they talk about, you know, Greek republics and Roman republics, but the only example they really had was Britain. And what they knew was they all liked British government, but they couldn’t have it because they couldn’t have a king. So what they tried to do was build up something a little like the British parliamentary system, replacing a king with a president, but mostly ensuring that the president wouldn’t have the kind of power that George III had. I mean, they had had that, and they had had enough of that, and what they wanted was to prevent the accumulation of power in one person like the president. So they designed a presidency which really bears no resemblance whatever to what we have. It’s not the same thing at all.
Bob Zadek: Was it ever, now in the history of our country, was the office of the president as envisioned by the Founders—did it ever exist? And if so, how did it morph to something which they didn’t envision?
Frank H. Buckley: Well, what they had, what they designed was something which today we’d probably call congressional government. I mean, what they thought were the details, but they thought mostly the House of Representatives would be appointing the president. They thought it would work out that way. They didn’t envision, for example, the modern media. They didn’t envision a very thick federal state in Washington. I mean, you know, the Washington today that purports to do everything and interferes completely in state government—that was not the sort of thing they had in mind at all. What they thought was the president’s going to be there and he’s going to be really useful in a couple of ways. One is if the country’s attacked, defending the country. And the other thing is they had the image of a president executing the laws more or less the way that you would put together an IKEA desk based on the instructions. In other words, you know, you open up an IKEA crate, you’ve got a list of instructions and you just follow it and screw things together. They thought that’s what presidential government would be like. He’d get legislation and he’d just put it together roughly. They didn’t see him as having a broad discretion. And that’s of course what characterizes the presidency today. I mean, today a president can make laws by diktat, he can refuse to enforce laws he doesn’t like. And the idea of a balanced constitution, a separation of powers—I mean, the idea there was to prevent the accumulation of powers, but now it has the completely opposite effect because when there’s gridlock as there is now, the argument is made, “Well, the president has to act because nobody else can.” So the separation of powers turns out to be something that empowers a president and concentrates power in the hands of a single person. That was just the opposite of what was intended.
The Shift from Congressional to Presidential Government [12:42]
Bob Zadek: And of course, the reason the president steps into the void, if it is a void—I don’t think it is, but if it is—of course, it’s the old saw that nature abhors a vacuum. When there is a vacuum and nobody can operate—it’s like Alexander Haig when Reagan was incapacitated, grabs the microphone and says, “I’m in charge now.” Well, when the other branches of government are not acting, it’s like sitting in a conference and nobody is speaking. The next person who speaks owns the meeting. And the president just naturally fills that void. After all, it is natural for humans to gravitate towards power and to accumulate power. The Founders were well aware of that. If there was one noun the Founders feared among all others, it was “power.” And the whole premise of separation of powers, which we’ll get into today, was based upon the dilution of power so it didn’t concentrate. But that has now—the separation of powers doctrine is pretty much disappeared from political life. Now, Frank, was it always that way? Or was it a period of time in our history that the office of the presidency worked pretty much as designed in accordance with the IKEA manual, where it worked as designed and then things changed? And if things changed, what changed?
Frank H. Buckley: Well, there were two big changes really. One was the growth of power in Washington and the lessening of power in state governments. I mean, the convention in Philadelphia in 1787 that gave us our Constitution was importantly a battle between some nationalists and some states’ rights people. And the states’ rights people would have walked away from the convention probably figuring they had won. Because what they got was equal representation of the states in the Senate, and that drove the nationalists nuts. They also got presidential electors chosen by a method determined by state legislatures, and they thought the state legislators would basically pick the people who pick the president. And if you never got a majority of people, a majority of votes in the Electoral College, it gets kicked over to the House of Representatives.
Bob Zadek: And you also had the indirect election of senators until the 17th Amendment.
Frank H. Buckley: That’s correct. So state legislators would do that, and the people they’d appoint would be people sent up there to represent their states. So, you know, that was the pattern that lasted certainly early in the 19th century and through much of the 19th century. And then it just slowly began to change. And one thing that happened was something the Framers never predicted, and that was democracy. And if you read the debates, you’ll be astounded at how much they hated the idea of democracy. And that wasn’t going to last. And by the 1830s, you had a strong move away from it. I mean, the idea that electors would be chosen by state legislatures—that was pretty much gone by 1828, just two states at that point. State legislators appointing senators—that lasted until the early 20th century, 1911. But so, you know, there’s a gradual shift of power from the states to the central government. And the other thing is, you know, the power of the central government expanded particularly under FDR, but also over the last 20 or 30 years, increasingly so as well. Then you have things like the modern media, which tends to make a rock star out of the president. So all of those things had the effect of concentrating power in the presidency.
And I guess the last thing is there’s only one person elected by all the people as a whole in America, and that’s the president. So when you get a battle over, say, the debt ceiling between the president and Congress, it’s a battle between the guy elected by the whole country and some guy elected by some place in Ohio you never heard of, and it’s no contest. So all of those things combined together tended to make the president the dominant figure. And it was a slow process. For a long time, Congress was a co-equal partner in all of this. I mean, legislation was really important. And what we’ve seen in the last couple of years is it ain’t necessarily so. The president asserts the power to rule by himself, by decree. And you’re right, actually, about the idea of nature abhorring a vacuum. I mean, the argument is made by people in the New York Times, for example, “Well, somebody’s got to do it.” I mean, for the Framers, the idea that there might be gridlock and nothing would happen, they’d just say, “Okay, well, where’s the problem?” You know, if I can look out my window and see Congress right now—I’m in Alexandria—if I think they’re not legislating, I’m thinking life is good. But that cuts against the grain. And there is a lot of stuff, there is a lot of legislation we’d like to work at. I mean, Obama gave what, 59 waivers? So that thing needs patching up. I think everybody thinks that thing needs some kind of patching up. There’s a lot of bad laws out there. The immigration system, whatever side you’re on, is completely broken. The tax system is a major embarrassment. And you just can’t get those things done. And it’s not yet the case, maybe we’re close, that the president can do all of this by himself. But the problem with the separation of powers here is that it’s turned into a one-way ratchet where bad laws get enacted and you can never reverse them. I mean, a parliamentary system like the one they have in Great Britain has this advantage: it has a reverse gear. And we don’t get the reverse gear effect so much here. It’s hard to pass, but it’s worse still hard to repeal.
Comparing US and Parliamentary Systems [17:50]
Bob Zadek: Frank, you’re a Canadian by birth, although you are an American citizen now, as you have pointed out, just in time to pay taxes.
Frank H. Buckley: Yeah, right. That was Tax Day of this year.
Bob Zadek: That you became a citizen. I first started to notice that the Canadian—the parliamentary system in Canada—that starting with, in my mind, the banking, the alleged financial crisis we had in 2008 and 2009 and the housing bubble, Canada didn’t have it. A lot of the really sicknesses in the American political life, Canada didn’t have. And it started to draw my attention. I have always been an American exceptionalist—we are special, the shining city on the hill—but I couldn’t help but wonder what was Canada, Canada being a parliamentary system as well as, of course, a very special country, what was Canada doing better than us? And I really started to wonder, is our system of government, the core system, does it have structural weaknesses as compared to a parliamentary system where the chief executive, the prime minister, is not elected—it’s elected by the party in power, but not by the people directly—but things seem to go a lot smoother. And in England, of course, there is a king or queen, but mostly ceremonial. And in your book, you draw a distinction between the chief executive, the head of state, and the head of the country—those aren’t your exact words, but help us understand why it is important.
Frank H. Buckley: Well, I’ll tell you this. I mean, look, I’ve been living in the States for 25 years now and became a citizen. But I had the sense when I moved here, a growing sense that I’d moved from a republic in Canada to a monarchy in the United States. Now, Canada is not a republic. I mean, the head of state is the Queen. I mean, it’s actually a perfect system because she visits about once every other year, which is about as much as you’d want. But she’s there, and what she does—she’s represented by the Governor General—but what she does is she kind of deflects the impulse to worship a politician. And I call this Jack Sprat’s Law. What I say is that what you want—you remember Jack Sprat and his wife?
Bob Zadek: Who would eat no fat, his wife would eat no lean, and between the two of them, they eat the platter clean.
Frank H. Buckley: Exactly. So I said it makes sense to keep those two offices, head of state, head of government, separate because if you revere the Queen in some kind of an abstract way, and the Queen has no power whatsoever, that’s not politically dangerous. But if you’re asked to revere the president who combines both head of state and head of government offices, if you’re asked to revere the president, then you’re conferring a psychological edge to him that’s completely absent with a prime minister. In Britain and Canada, one’s accustomed to laughing at politicians because they’re just jokes in the end. I mean, there are some fine people and all that, but you don’t take them seriously. Whereas here, there’s something almost disloyal about laughing or disliking a president. And I’d even argue that the Bush Derangement Syndrome of ten years back was an example of that, in the sense that, you know, if you’re an American, you feel obliged to revere the president, and if you can’t revere him, then you have to hate him. And those emotions of reverence and hate are completely absent in a political system like Britain or Canada because people aren’t taken seriously in the same way. But here, if there’s a major tragedy, then you require a healing speech by the president and Peggy Noonan’s going to blubber all over herself reading it. Or if there’s some great accomplishment, you need a Presidential Medal of Freedom or something. And the whole effort in a parliamentary system is to move that away from guys with power. And so you never notice the Queen in the background. She’s just kind of taking up all the oxygen with respect to the ceremonial office. She’s taking that away from guys with power. And that’s a kind of a healthy development. You need a wall of separation between the ceremony and the power.
Accountability and Challenges [22:58]
Bob Zadek: We need Thomas Jefferson walking around the White House in his pajamas and slippers, opening the front door and letting in the visitors. That’s what we need. This is Bob Zadek. We’re talking—we’ve got to go to break, Frank, for about a second. This is Bob Zadek and I’m talking with Frank Buckley. Frank has written The Once and Future King, describing not England or Canada, but the United States. The Once and Future King: The Rise and Fall of Crown Government in America. 800-345-5639 to join the conversation. We’ll be back in 60 very short seconds.
[Commercial Break]
Bob Zadek: Welcome back to the Bob Zadek Show, every Sunday at 9:00 AM. The show of ideas, not attitude. Thanks so much for listening. 800-345-5639 to join my conversation with Frank Buckley, who has written The Once and Future King, describing not England or Canada, but the United States. The Once and Future King: The Rise and Fall of Crown Government, yes, in America. Do we have a king, or do we have the worst of a king and a president? How did we go astray from the office of the president which the Founders have given us?
You know, Frank, right before the break, you really struck a chord with me when you talk about this—the reverence we are supposed to give to the office of the president and how we celebrate. And one of my real complaints is we celebrate in February Presidents’ Day, as if we are celebrating, thank God we have had presidents. The only significance of a president, he was for a point in time the best politician. And here we despise our politicians, and yet the one who is the best of this horrible profession, the best of this horrible profession, we venerate him with his own day. And how I look with envy in the British and Canadian system when the prime minister goes into the well of parliament, the House of Commons, and is confronted by yelling, angry commoners in the House of Commons, asking him somewhat rude, occasionally, but very pointed questions, and the prime minister just takes it. And I compare that with a presidential press conference where there’s protocol and respect and answers are given or questions are supplied to some degree in advance. What a difference between the prime minister’s visit to the House of Commons and what goes for a confrontation with the president in America.
Frank H. Buckley: Yeah, I think it makes a really great difference in terms of the quality or the character of the person who rises to office. I mean, there’s a tendency towards an expansion of the executive branch in every country like Britain or Canada and the States because of the modern media and the expansion of government and all of that. But boy, it keeps you honest if you have to walk into the House of Commons and take all the slings and arrows of outrageous fortune. You referred to, I guess indirectly, to a press conference with Obama a couple of years back. The Daily Caller sent some guy who was pretty rude to question Obama about immigration issues, and he just called out questions. And you could see Obama becoming visibly angry. I mean, it is not the case that a president should be questioned. That’s really rude. And afterwards, it was the White House press corps who dumped on the reporter for his impertinence, his want of deference to the head of state of the country. It’s just extraordinary. I mean, look, the Queen is not treated that way in Britain. I mean, you don’t go around arguing with her, but she comes out and meets the public. And as for prime ministers, if you have to stand up and take questions on every single issue of the day for a lengthy period of time from an opposition bench that’s really tried to embarrass you, you get somebody who’s better on his feet and maybe wittier and more in command of everything that’s going on. In other words, it’s not that he read it in the newspaper two days ago. And of course in Canada, you have to do it in two languages. All of that tends to produce a different kind of leader than the thin-skinned, imperious person who can rise to the top of American politics. I mean, they’re not all like that, but I think the current occupant could be so described.
The “Imperial” Presidency and Non-Enforcement [28:47]
Bob Zadek: Frank, as an example, we have a clip of how President—how warmly, and I say that in quotation marks, President Obama takes to being challenged by the press corps. I’d like to play the clip of the type that you referred to in your book. Raymond, if we can play the clip of the reporter interrupts President Obama.
[Audio Clip of Reporter Interrupting Obama]
Bob Zadek: Well, there we have a very annoyed president. How imperial can you be? This is the Fourth Estate asking Obama—he had the temerity to go off-message and to ignore the teleprompter, and Obama is beside himself with anger. Like, how did this reporter get past security? This is what passes for dialogue in America. And this is one of the few times we get to see the unscripted character of the president. Oh my God, this is exactly what you referred to in your book.
Frank H. Buckley: Yeah, I know. I find it pretty shocking. But the reason why Obama was shocked was because nobody else ever did this. And in Dover, by the way, at the end of it all, remember how he kept saying, “This is not the time for questions”? When his comments were finished, he just walked away. And you got this little guy saying, “What about this? What about that?” And he just walked away. You’ve got a cocoon around the president which is really effective in terms of protecting the bumbler, the incompetent, the person who doesn’t have his handle on everything that’s going on. You may or may not think that describes President Obama, but the point is you can get somebody who is like the gardener Chancey in Being There, who just is protected from anything which might test him. All he’s got to do is deliver a speech or two, and that’s it.
Bob Zadek: This is—your book is so relevant to what’s going on in a week and what will be going on over the next two years as we again—the battle is joined for the presidency. Where we have the examples of this accumulation of power in the presidency. One of the great examples, of course, which has been in the media every day, is the president’s refusal to enforce laws that he does not like. Clinton did it—I don’t recall Bush doing it, but I’m sure that he did. This transcends any kind of party affiliation. We are talking about governmental structure, not party affairs. But the president’s ability without constitutional protections of simply selecting laws to enforce, laws not to enforce, and in effect making laws, is something which the Founders would be aghast over. Now, the examples, of course, are immigration, they are in certain tax laws. Clinton refused to enforce the Beck decision, the Supreme Court decision that prevented unions from forcing union members to support political causes they didn’t approve of. It was the well-known Beck decision. So this, of course, has been happening for a long time. And the issue is one of what’s called “standing.” That is, under our system, you can’t bring a lawsuit unless you are directly affected by somebody else’s behavior, action, or inaction. And when the president says, “I’m not going to enforce immigration laws” or whatever law, when the president makes that decision, there’s nobody who has sufficient standing to bring a lawsuit to compel the president to act. And so it is a real structural deficiency. And how far back does this go? And do you see—is it possible to be optimistic and say, “Well, this will change, a different president will behave differently, or Congress will behave differently”? How did we get here?
The Royal Prerogative and Executive Discretion [33:51]
Frank H. Buckley: How far back does it go? Well, I don’t know, maybe the 12th century. It was called the “royal prerogative,” and it was a very different idea of what the executive—
Bob Zadek: The royal prerogative, which of course was in favor of the king.
Frank H. Buckley: That’s right. But you have the same sort of thing here. It’s called the power of the executive, the executive authority.
Bob Zadek: The non-enforcement power.
Frank H. Buckley: Yeah, the non-enforcement power. And you know, in a way you can’t get away from that because it’s not like that IKEA box, the set of instructions I talked about. The Framers hated the idea of the royal prerogative. But in the end, you’ve got to give the executive some slack. And if you want an argument for that, the best argument I know is from John Locke in the Second Treatise. He just said, “You know, you’re going to pass laws that with the benefit of hindsight just shouldn’t be enforced.” You also get in America laws which are passed which are unconstitutional and which you wouldn’t want the president to enforce. Here’s an example: same-sex marriage. Now, the president went off on a bit of a limb in which he instructed the Department of Justice not to pursue litigation opposing same-sex marriage, but then the Supreme Court backed him up. So he basically got that one right. So where you would want the president to be able to exercise his discretion in small ways where things are broken with respect to constitutional rights, on Obamacare for example—you remember the horrible rollout, things were broken, the websites didn’t work—in circumstances like that, you just can’t enforce things. It would make sense for the president to say, “Well, we have to wait till we get the web design fixed.” So there are things like that, and that’s been going on forever. But the problem is it seems to have been taken to the next level by Obama. I mean, George Bush had his signing statements, and when Bush said he wanted to reserve the power of the presidency with respect to military matters, Elizabeth Drew in the reliably liberal New York Review of Books detected the whiff of fascism. Well, now with things like immigration, we are really seeing that at an exponentially larger level. I mean, Congress, for example, refused to pass the DREAM Act to regularize young undocumented people, so Obama did it by himself. Now we hear suggestions that he’s thinking of somehow giving green cards to undocumented people, which would really be extraordinary. There may be a way of doing it or weaseling around the law, but if that were to happen as it’s been announced it would after the election, then you have to wonder what was the congressional election all about? I mean, why do we need Congress except as a venue for the State of the Union address or the inauguration?
Congress’s Abdication and the Power of the Purse [37:43]
Bob Zadek: Well, Frank, when one thinks about the premises in your book, which cannot be argued with—they are so persuasive—can’t we get some solace from the fact that Congress does have, in the wisdom of the Founders, the power of the purse? And if we—assuming we have a Republican Senate after—in a week from now, or starting the first of next year actually—assuming we have a Republican Senate, so we can have bills and we can have funding bills that will be controlled by the Republicans, can’t they through the power of the purse fund or defund what has to—what is the will of Congress? And hasn’t Congress been complicit in this by over time for political reasons delegating so much of what was their power, just saying to the president, “Here’s a very broad statute, you deal with the details”? And in doing so, Congress has abdicated their role as representing the people. They’ve just said, “Okay, president, you can sort of be Congress as well, we will give you the power through a statute.”
Frank H. Buckley: Well, there’s only one problem with that, and that is Congress is elected by the people. Ultimately, you’re asking what the people will stand for or what they won’t. And remember that what you’re describing as a Republican take the Senate is a power that the Republicans have had for two years now when they took the House. I mean, after taking the House, they could use the power of the purse to block Obama. And what that gave us was the almost refusal to raise the debt ceiling in 2011. And ever since then, the Republicans have caved on the issue. They gave a clean increase to the debt ceiling back in January of this year. You know what happened was the Republicans stood firm in 2011 and they realized that they had alienated the voters. See, it’s not just that one has an imperious king-like president, but you also have an electorate that seems to be happy with that. Just before the break, you mentioned Thomas Jefferson wandering around with his pajamas and slippers. He didn’t even deliver the State of the Union address, he just sent over a letter. And then think of the 2008 Democratic convention in Denver with those Roman columns, and imagine what the Framers, good Republicans all, would have thought of that. I mean, they would have been physically ill. I mean, if you had said, “This is what it will lead to,” they would have said, “Oh, that’s Caesarism. I mean, that’s exactly what we didn’t want. We wanted a republic, and this doesn’t look like a republic.” But it worked well with the voters. So ultimately, the question is, would American voters be happy or unhappy with this development? And they seem not particularly unhappy. I mean, this is the sort of thing that seems to attract, not repel voters.
The Veneration of the Office and Accountability [43:50]
Bob Zadek: Although American voters react—and you pointed this out earlier this morning—American voters react, and this is not a criticism, this is just human nature, they don’t have a lot of time to wallow through political blogs day and night, and they react to mainstream media. And you pointed out earlier how mainstream media venerates the office of the presidency, so that over time is picked up and becomes the way to look at the office. I remember when Obama gave his State of the Union message and Judge Alito, Supreme Court Judge Alito was in the audience, and muttered when Obama criticized, I believe it was Citizens United, and Alito muttered something vaguely disrespectful under his breath. That was on the front page of every paper in America, as if how dare he, how dare he even suggest something negative and disrespectful about the president. It’s the veneration, and you are exactly right, the veneration that the Brits and the Canadians leave to the Queen or the King, that we are hungry for somebody to venerate, so the president gets that job. And that bestows upon him, in and of itself, enormous power, that veneration. Because as you pointed out, he speaks for all of the people, and that’s what we get wrong.
Frank H. Buckley: Well, as you were talking, I was trying to remember about republicanism in America. I mean, the Framers had a sense of republican virtue. George III said that George Washington was the greatest man in the world because he didn’t become king when he could have. And people like Washington and Lincoln, for whom we celebrate properly Presidents’ Day, these were people who had a certain innate—if not modesty, then a sense that they should not do anything that looked king-like. And where has one seen that? I mean, when I think back in recent American history, you know who I think of is Harry Truman.
Bob Zadek: I was going to say the same thing. Harry Truman was the last small-r republican president.
Frank H. Buckley: Yeah, but and the thing is this appealed to people. In fact, the guy he ran against, Tom Dewey, was just the opposite. I mean, talk about somebody imperious, that was Dewey, somebody full of himself. Whereas Truman was admirable, and Eisenhower as well. I mean, we’ve just seen the ceremonial side of it, the Roman emperor side of it, increase of late. And I guess one wonders, well, is this a permanent change in the American voter? I mean, we have a different kind of electorate. We have some people who are devoid of knowledge of the Founders’ principles and with no sense as to the greatness of their principles—I’m referring of course to the millennials. But then again, we immigrants were nothing to write home about either.
Impeachment as a Structural Check [46:21]
Bob Zadek: You know, another point in your book that really got me thinking is you had a discussion about—and I’m not trying to seem a bit Looney Tunes here and please forgive me—but the relationship of impeachment. Now, in fact, in a parliamentary system, impeachment is ordinary. Having the equivalent is, of course, calling for a new government, which is the functional equivalent of impeachment of the prime minister, except it’s not personal. It’s structural, it’s the party in power. But we treat impeachment as something which has to be related to a blue dress and something which is very nutty and very extreme. But impeachment, that is saying you’re not behaving the way we thought you were going to behave and therefore you have crossed a line and you’re out of here—impeachment I wish were something more ordinary, so it at least existed as an important check on excessive presidential power or misbehavior.
Frank H. Buckley: Well, that’s right. I mean, if you turf out a prime minister in England because he loses a vote of no confidence, it’s as you say, it’s not a black mark against him, he just didn’t have the voters behind him. With tongue in cheek in my book, I said I’d like to see presidents impeached for high crimes and misdemeanors or maladministration or just for the spirit of the thing. And that got some people riled up. But the whole point was to say you revere the president and he’s just an ordinary mortal, and getting rid of him should be no different than firing a CEO who’s not doing the job properly. The big difference is that the way it’s structured in America is it’s not just the high crimes and misdemeanors, which was not the case of Clinton, but it’s that two-thirds vote in the Senate that’s required to remove. And you’ll never—it happened only once in American history that you had a president of one party and a Senate, two-thirds of a Senate and the House on the other party, and that was 1868.
Bob Zadek: That was Andrew Johnson.
Frank H. Buckley: Johnson. Even then, you know, and John F. Kennedy wrote Profiles in Courage to celebrate the one guy who switched his vote to save the presidency. And the reality is that it seems the guy was bribed, number one, and number two, Kennedy didn’t write the book, Ted Sorensen did. So I would have preferred a simple majority. That was actually—you pointed out in your book, you pointed out that Gouverneur Morris was the one who slipped that one by the Framers.
Frank H. Buckley: Yeah, he was kind of the unknown genius. Maybe the smartest guy in the room next to Franklin. And he just, I think he just twiddled James Madison around his finger. But on the subject of two-thirds versus one-half of the Senate, on Clinton, the vote to remove in the Senate was 50-50. Okay, and like we all think it went down to defeat and it did, but it was 50-50. And but for that last-minute change which was so late in the day nobody even talked about it, the move from 50% to two-thirds to remove a president in the Senate, but for that in 1998 on a 50-50 vote, you know what would have happened? Al Gore casts the deciding vote. Yeah, and wouldn’t that have been fun to see? If Al Gore votes himself into the presidency. Right. And you know, we know how ambitious the guy was. So it would have been fun to see him squirm.
Potential Structural Changes [52:41]
Bob Zadek: And on the two-thirds vote, just for the benefit of our listeners, the rules in the Constitution as ultimately drafted required a majority vote—there’s impeachment, which is like the indictment, and that’s done in the House and that requires a majority vote. And then to convict, think of the Senate like the jury. To convict, you need a two-thirds vote in the Senate. But originally in the earlier drafts of the Constitution, that was a majority vote. And it’s only when the Committee on Style was sort of tidying up the draft of the Constitution that Gouverneur Morris changed it and no one objected because people were, as you pointed out, Frank, people were just too tired and hot and they wanted to go home, so nobody cared all that much that it got changed.
Frank H. Buckley: They were there for four months. This was in the last two weeks, and there was so much stuff thrown in in the last two weeks, they never got around to talking about it.
Bob Zadek: And if Gouverneur Morris didn’t make that change, Clinton might not have served out the balance of his term. Maybe that depends on what was in Al Gore’s mind. Maybe. I think at that point there might have been some vote switching. We have only a minute left, Frank. What is—if you can see, is there a or several structural changes, putting aside the unlikelihood of them happening, that would make things better than they are now in so far as the power of the presidency is concerned?
Frank H. Buckley: Well, here’s the thing. There have been a lot of suggested constitutional amendments, and it’s probably the case that they’ll never go anywhere. But a constitutional amendment that’s detailed and specific is one that can be overturned by the Supreme Court effectively. And so the power to nominate judges to the Supreme Court turns out to be one of the president’s most important powers. So my change would be, let’s go back to the way it was intended to be: let Congress appoint the president and let Congress have the ability to remove the president by majority vote.
Bob Zadek: And if that seems extreme, that’s the way it is in a parliamentary system.
Frank H. Buckley: Yeah, you know, and when I mention that, people say to me, “Oh, that sounds like a parliamentary system. Americans won’t like that.” And I say, “Yeah, funny, that was huge in Canada.”
Bob Zadek: And the lesson, you know, Frank, the lesson from the book for me was I have a huge amount of both curiosity about and respect for a parliamentary system. It just experience shows us that that system, dare I say, works better than the system in which our country has morphed into. It wasn’t the system from the Founders, it was where we’ve morphed. Frank, thank so much for giving us an hour of your time. Sorry for playing “Hail to the Chief.” I know it doesn’t suit you all that well. I thought it’d just piss you off a little bit. But Frank, thanks so much for having us with you. The book is a must-read. Please read Frank’s book, you’ll enjoy it. Bob Zadek saying so long for now, I’ll be back next Sunday. Thanks a lot, Frank.
Frank H. Buckley: Bob, thank you so much.