Explaining and Evaluating the American Unitary Executive: Biographical and Constitutional Perspectives on France, Haiti, and the Bolívarian States
Pacta sunt servanda
Volume I: February 22, 2021
Written by Nicholas Rice
Edited by Philip Mousavizadeh
Introduction
The framers of the American Constitution vested the “executive Power” (art. II, § 1, cl. 1) of the United States (U.S.) in the “Office” (art. II, § 1, cl. 2) of “a President” (art. II, § 1, cl. 1). In so doing, they set aside three competing executive structures extant prior to 1787: monarchic executives advised by parliamentary bodies[1]; diarchic executives[2], [3], [4]; and triumvirate executives[5], [6]. The decision was made on Monday June 4, 1787, when after days of debate the Philadelphia Convention resolved the question, “shall the blank for the number of the Executive be filled with a single person?” in the affirmative by a vote of 7-3[7] (Hund and Scott n.p.), thus birthing the American unitary executive.
This essay will attempt to explain and evaluate this unitary structure from a comparative historical perspective. Its methodology will proceed primarily from an analysis of the written[8] constitution; although in Part III we will evaluate the American unitary executive from a biographical perspective, this will be our only major departure from an originalist[9] historical, textual, and structural analysis of the Constitution. In Part I we will canvas the debate surrounding the nature of the executive power “vested” (art. II, § 1, cl. 1) in the President – affirming a moderate reading of unitary executive power – before locating that power in the historical context[10] to which the framers looked in framing it: the Roman Republic (509 BC - 27 BC) and the post-1648[11] European monarchies[12]. Part II will then evaluate the merits of the American unitary executive from a constitutional perspective, comparing it to the executive structures of the French First Republic (1792-1804), Revolutionary (1791-1804) and Independent (1804-1915)[13] Haiti, and the Bolívarian States of South America (1810-30)[14]. Finally, in Part III we will investigate how the boundaries of executive power were – in the cases of America as well as Haiti, France, and the Bolívarian States – as much biographical as constitutional. Having surveyed these historical comparisons to Haiti, France, and the Bolívarian States, we will be better placed not only to explain the constitutional and biographical origins of the American unitary executive but also to evaluate the unique clarity of its vision of executive power[15].
Part I. Rome and Europe: Historical Explanations for the Unitary Executive
The framers articulated the “executive Power” (art. II, § 1, cl. 1) in such a way that it would draw on the pragmatic strength of the European monarchies without risking their despotism, in so doing drawing on the historical counterpoint offered by the achievements and shortcomings of the Roman Republic. Before embarking on this twofold historical explanation, however, we must clarify the exact nature of executive power established by the Constitution. The breadth of presidential power is an intensely debated field of constitutional law. As there is not scope here to explore this debate in full, we will focus on its two principal schools: the strong (Barr passim) and moderate (Calabresi and Prakash passim) readings of executive power. There are a number of reasons to prefer Calabresi and Prakash’s reading to Barr’s, as their “moderately strong reading” (Amar 473) acknowledges both the “unitary nature” (Prakash 722) and “anti-unitary features” (Prakash 721) of executive power.
Barr’s strong reading of the unitary executive laments that “over the past several decades, we have seen steady encroachment on presidential authority by the other branches of government” (Barr 1). He invokes a Hamiltonian vision of the “energetic President” (Pildes 1382) wielding the “sceptre of expansive presidential power” (Pildes 1384) in the manner of Jackson, Lincoln, and Wilson (Pildes passim). He makes six arguments in support of this reading: first, that the unenumerated nature of presidential power – in contrast to the enumeration of Congressional (art. I, § 8) and judicial (art. III, § 2) powers – demonstrates an intention to grant the office extensive powers (Barr 2); second, that the ability of the President to independently superintend the executive – as opposed to the judiciary, which is subject to Congress (art. III, § 1) – by appointing and removing its officers at will, demonstrates the expansive nature of unitary executive power (Barr 2); third, that it was not the tyranny of the executive but rather that of the legislature that the framers feared, in light of the British doctrine of parliamentary supremacy established in the Glorious Revolution of 1689 (Barr 2); fourth, that the framers sought to avoid at the federal level the experience of the states, which were subject to overbearing legislative and anaemic gubernatorial authority (Barr 2); fifth, that the experience of disorganised leadership in the Revolutionary Wars (1775-83) motivated the framers to establish a strong unitary executive (Barr 2); and sixth, that the framers constructed a muscular unitary executive in order to remedy the weakness of the President of the Confederation Congress under the Articles of Confederation (1781) (the Articles) (Barr 2).
Barr seems to have a view of executive power more aligned with Hamilton’s, outlined in his speech at the Philadelphia Convention on June 18, 1787 (Garret 3 s.f.) and in his defence of Washington’s Neutrality Proclamation of 1783 (Garret 4), than with the one eventually adopted in the Constitution. Madison directly contradicted this Hamiltonian overreading of the power of the unitary executive when he stated on Monday June 4, 1787 that “it would rarely if ever happen that the Executive constituted as ours is proposed to be, would have firmness enough to resist the legislature, unless backed by a certain part of the body itself” (Hund and Scott n.p.). Though Barr is generally right in affirming the unitary (Calabresi and Prakash 568-70) and broad (Calabresi and Prakash 571-3) nature of the executive power vested in the President, there are a number of reasons to be critical of his reading and to treat with skepticism his dismissal of “independent agencies” (Barr 4), “the scope and intensity of judicial review” (Barr 6), and robust congressional oversight (Barr 5) as unconstitutional aberrations.
Barr’s first argument, concerning the unenumerated nature of executive power, is his strongest. Though he is right that the “executive power” (art. II, § 1, cl. 1) granted to the President is considerable (Calabresi and Prakash 570-81), it is also structurally qualified, distinguishing it from the “regal power” (Calabresi and Prakash 577) of George III. These qualifications are sixfold (Calabresi and Rhodes, qtd. in Calabresi and Prakash 578): first, the President’s powers as Commander in Chief extend to “the Militia of the several States” only “when called into actual Service of the United States” (art. II, § 2, cl. 1); second, the President’s ability to require “opinion[s], in writing” extends only to “the principal Officer in each of the executive Departments” and may concern only “subject[s] relating to the Duties of their respective Offices” (art. II, § 2, cl. 2); third, the ability of the President to pardon extends only to “offenses against the United States” (art. II, § 2, cl. 2), not including “cases of Impeachment” (art. II, § 2, cl. 2); fourth, the President’s power “to make Treaties” depends on the “Advice and Consent of the Senate” and requires that the concurrence of “two thirds of the Senators present” (art. II, § 2, cl. 3); fifth, the President’s appointment power is subject to senatorial “Advice and Consent,” and “Congress may by Law vest the Appointment of ... inferior Officers … in the Courts of Law, or in the Heads of Departments” (art. II, § 2, cl. 5); and sixth, the President’s power to appoint during congressional recesses is limited by the fact that these appointments will “expire at the End of [the Senate’s] next Session” (art. II, § 2, cl. 6).
Kent et al. support this reading of the structural limitations on presidential power with a textual argument for the President as an executive officer (Kent et al. 2121-40). Their argument concerns the phrase “faithfully execute,” which appears both in the ‘presidential oath’ (art. II, § 1, cl. 20-21) and ‘take care’ clauses (art. II, § 3, cl. 3). They conclude that its origins lie not in the British “coronation oath” – a conclusion also reached by Amar (Amar 177) in analysing the 1689 Act Establishing the Coronation Oath in England – but in “commonly used … oath[s] for mid-level and more ministerial offices” (Kent et al. 2159). The consequence of this textual argument is expressed by Prakash, who suggests that in the event of a conflict between presidential instruction and legal imperative, junior officers are obliged to obey the law before the demands of its first officer (Prakash 712-3). Though the “executive Power” (art. II, § 1, cl. 1) is vested in the President, they remain an officer of the law. The words “faithfully execute” thus indicate that the Presidency, contrary to Barr’s strong reading of its scope of executive power, assumes the “status [of] an office and rejects the residues of sovereignty” (Meyler 89).
Further, although the absence of certain “legal restraints” on executive power may seem to vindicate Barr’s expansive vision of executive power (Pildes 1387), he neglects the equal importance of political restraints. The power of the President is rooted in their “ongoing credibility” (Pildes 1387); indeed, “a close relationship exists between presidential credibility and effective power” (Pildes 1424). Public opinion may, for instance, encourage the other branches of government to exercise their discretionary powers in order to obstruct the President’s use of their – admittedly more substantial – residuum of executive authority. Presidents are thus also constrained in their use of the expansive executive authority that Barr claims the Constitution gives them by “strong incentives to adopt practices and take actions that establish and maintain their credibility” (Pildes 1388)[16].
Barr’s second argument, concerning the ability of the President to independently superintend the executive branch, requires qualification. The appointment power of the unitary executive is substantially moderated by Congress: only Congress can create executive offices (Prakash 207 s.f., Calabresi and Prakash 592) just as only Congress can specify their powers and duties (Prakash 704-6). Therefore, while Barr is right that the President has unitary control over the executive branch – including the power to discharge (Calabresi and Prakash 595), strip power from (Calabresi and Prakash 598), nullify the acts of (Calabresi and Prakash 595), and act in the stead of (Calabresi and Prakash 595), any inferior executive officer – the size and nature of that branch is determined by Congress (Prakash 714). Further, the President can only appoint to “Ambassadors, … Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States” with senatorial consent (art. II, § 2, cl. 4) and, in the case of directors of independent agencies, can only remove them with due cause (Amar 220-1, Prakash 706-11). Furthermore, since the President lacks appropriations authority, Congress also controls whether offices of the executive are funded (Prakash 711-712). Finally, the President is restricted in how they manage their own constitutional powers: they cannot delegate presidential powers to others (Prakash 716), just as they cannot transfer the functions of one executive office to another (Prakash 717), or give to one executive officer the power to veto the decision of another (Prakash 717).
Barr’s third and fourth arguments, that the true fear of the framers was legislative dictatorship – both in the form of the British Parliament and the state legislatures – is confused. Although Barr is right that there is legitimate debate about whether certain “patriot royalists” (Helfman 2235)[17] – specifically, John Adams, Alexander Hamilton, and James Wilson – carried into the drafting of the Constitution their understanding of the Revolution as a rejection of the abuses of Parliament and an endorsement of the “reviv[al of] the prerogative powers of the Stuart Kings” (Helfman 2235), he is mistaken in extrapolating from this that the framers sought to invest the unitary executive they were creating with pseudo-monarchic power. Though the framers undoubtedly feared the excesses of Congress,[18] Barr’s overreading of the powers of the unitary executive does not follow: the framers also feared the excesses of the executive. Barr wants to see the President as the supreme constitutional guarantor; it is more likely, however, that art. II “envisioned the President as an officer who would generally defend the Constitution, but who might at times threaten it” (Amar 203-4). Finally, Barr’s fifth and sixth arguments, which relate to the desire of the framers to correct for disorganised leadership during the Revolution and for the ineffectual executive of the Articles, are inconclusive. The framers were undoubtedly influenced by these events, as expressed in the very act of establishing a constitution instead of rearticulating the Articles so as to grant more power to the President of the Confederation Congress. Considering the already significant bounds of the general “executive Power” vested in the President admitted by Calabresi and Prakash, these two historical arguments do not support Barr’s uniquely strong reading of executive power.
Even if Barr is right in his strong reading of executive power – and Ackerman similarly right in fearing that power (Ackerman qtd. in Pildes 1390)[19] – the fact that the American unitary executive has not yet lapsed into the dictatorships that rose in France, Haiti, and the Bolívarian States is testament to the strength of America’s unwritten checks on constitutional power, some of which we will explore from a biographical perspective in Part III. Having clarified the nature of American executive power as defined by the Constitution, we are better placed to offer a historical explanation of it with reference to both the Rome Republic and the post-1648 European monarchies. With reference to the Roman genealogy of the separation of powers, Ames and Montgomery survey Farrand’s Records of the Federal Convention (1911), demonstrating the prominence of discussions of “Roman government” (Ames and Montgomery 19, 20-3), specifically regarding the unitary structure of the executive[20]. Further, they claim that the system of “checks and balances” (Ames and Montgomery 19) on executive power that the framers instituted “to restrain, decentralize, divide, and balance the powers of government” (Ames and Montgomery 23) was inherited from Rome and not Britain (Ames and Montgomery 24-5).[21]
In addition to this Roman notion of separate powers held in balance, however, it was a fear of creating an American species of European monarchy that dominated the debate about executive power at the Philadelphia Convention. An executive council, reminiscent of the British Privy Council, was the most popular solution to the problem of a unitary executive that could potentially become monarchic. Edmund Randolph[22] and George Mason[23] of Virginia, Hugh Williamson[24] of North Carolina, and the antifederalist author Philadelphiensis[25] were all prominent opponents of the unitary executive and vocal advocates of such a council. At the conclusion of the Philadelphia Convention, those who refused to sign the Constitution[26] included this idea of a plural executive in the form of a council in the twelfth of their fourteen proposals for amendment: “[that] the legislative, executive, and judicial powers be kept separate; and to this end that a constitutional council be appointed to advise and assist the President, who shall be responsible for the advice they give” (McMaster and Stone, ch. iv). Federalists – notably James Madison and Elbridge Gerry[27] – responded to these concerns about a unitary executive lapsing into European dictatorship with explicit reference to the differences in the European and American executive models. Madison defended the idea of the unitary executive by arguing that “unity in the Executive, instead of being the foetus of monarchy, would be the best safeguard against tyranny,” repeating that the notion of the unitary executive in America would “not [be] governed by the British Model, which was inapplicable to the situation of this Country” (Hund and Scott n.p.).[28] Drawing on the separation of powers in the Roman Republic (509 BC - 27 BC) and hoping to avoid the tyranny of European monarchy, the framers thus articulated in the Constitution a moderate vision of unitary executive power that would be able to act effectively but not tyrannically.
Part II. France, Haiti, and the Bolívarian States of South America: Constitutional Evaluations of the Unitary Executive
The unitary executive, understood as framed by Calabresi and Prakash and in the historical context of its Roman and European counterpoints, struck a balance between an overly ineffectual divided executive and overly potent unitary one. In Part II, we will ask why – from a strictly constitutional perspective[29] – the American executive succeeded in establishing and maintaining republican government where France, Haiti, and the Bolívarian States all stumbled[30]. Parts II A and B will trace each nation’s constitutional history before examining what that constitutional history reveals about the logic of the American unitary executive. The French Directory offers the example of an executive that was fragile and divided, its weakness allowing Napoleon to establish an imperial regime that negated the original promise of the Revolution; inversely, Haiti and the Bolívarian States offer examples of overpowered unitary executives that also quickly lapsed into military dictatorships.
A. The French Directory
It is difficult to skirt the historical parallels between the American (1775-83) and French (1789-99) Revolutions (Berman 321-9). The spirit of the National Constituent Assembly’s Declaration of the Rights of Man and of the Citizen (1789) echoes that of the American Declaration of Independence (1776); further, Thomas Jefferson – principal drafter of the 1776 American Declaration – collaborated with Marquis de Lafayette – principal author of the 1789 French Declaration– in producing the later document (“Marquis de Lafayette” n.p.). In addition to these textual parallels, the contextual positions of the two nations were also similar. Though the threat of war was more imminent in France during the Revolution than in America at the time of the Philadelphia Convention, both were fragile revolutionary states attempting to defend themselves from wary and vindictive European monarchies.
Despite these textual and contextual similarities, the different historical trajectories of the U.S. and Revolutionary France mean that it is on the basis of their constitutional differences that we must evaluate their executive structures. While the Constitution framed at the Philadelphia Convention remains in place today, France’s constitutional history during the First Republic (1792-1804) was turbulent (Tucker 242-5). Between 1791 and 1804, the Kingdom of France (1791-2) and the First French Republic had six constitutions, the Constitution of 1791 being the first written constitution in its history. It was moderate: retaining the monarchy, vesting the sovereignty of the Kingdom of France in the Legislative Assembly, providing for a franchise restricted by gender and property, and establishing a system of indirect election through local electors (“Constitution of 1791” n.p.). Though the Constitution of the Year I followed quickly in 1793, it was written by the radical Montagnard faction of the National Convention – opposed by the conservative Girondins and moderate Maraisards – and was never actually implemented[31].
Since the Constitution of 1791 was so short-lived and the radical 1793 Constitution of the Year I never implemented, we will begin in 1795 with the Constitution of the Year III, which bears certain striking similarities to its American counterpart. The Constitution of the Year III was the result of the Thermidorian Reaction: a revolt led by the National Convention that ended the Reign of Terror of the Committee of Public Safety (Tucker 244). It was far more conservative than the radical Constitution of the Year III: it established a tax-based franchise; a bicameral legislature resembling the English Parliament and comprising a Council of Five Hundred and a Council of Ancients; and a five-man executive Directory, which was nominally elected by the legislature but constituted a sort of “ineffectual dictatorship” (Tucker 244). Five important parallels arise from a comparison of the U.S. Constitution with the Constitution of the Year III (Anderson n.p.). First, much like the powers given to Congress (art. II, § 1, cl. 3-13) to elect the President and Vice-President from a shortlist of five in the event of a tie in the electoral college, the Council of Ancients was empowered to pick the five Directors from lists composed by the Council of Five Hundred (titl. VI, art. 133). Second, like the clauses specifying a minimum age of 35 for Presidents (art. II, § 1, cl. 18) and senators (art. I, § 3, cl. 5) and 25 for members of the House of Representatives (art. I, § 2, cl. 2), the French Constitution of the Year III specified an age of 30 for a member of the Council of Five Hundred (titl. V, art. 74) and 40 for a member of the Council of Ancients (titl V, art. 83) or Directory (titl VI, art. 134). Where the U.S. Constitution imposed this age limit on the presidency to prevent the unqualified sons of famous statesman gliding into office on the fame of their fathers name (Amar 70-1) and to ensure that any presidential candidate had relevant experience, the Constitution of the Year III reinforced this implicit guarantee by specifying that a Director had to have previous experience ministers (titl. VI, art. 135) and by prohibiting nepotistic election (titl. VI, art. 139). Third, since a new Director was chosen every year on rotation, the functional term length of a Director was five years (titl. VI, art. 137), only a year longer than that of the American President. Fourth, like the American President, the Directors had the power to nominate government ministers, ambassadors, and other officials (titl VII, art. 191). Finally, like the President, Directors had no appropriations power (titl. XI, art. 317), meaning they had to rely on the support of the legislature to finance their ambitions.
Just as the American framers sought to avoid the despotism of European monarchy, so too did the framers of the French Constitution of the Year III seek to avoid the tyranny of the Committee on Public Safety; in so doing, however, they created an executive so weak that it yielded to the dictatorship of Napoleon, who brought a de facto end to the Republic in his ‘Coup of 18 Brumaire’ (9 November 1799). The weak non-unitarian Directory of the Constitution of the Year III thus led to the Constitution of the Year VIII, adopted on 24 December 1799, which established a triumvirate Consulate with Napoleon as dictatorial ‘First Consul’; with this Constitution, Napoleon “shut down the revolutionary era and substitute[d] himself for it” (Tucker 244). The Constitution of the Year X (1802) then augmented Napoleon’s dictatorial powers, making him ‘First Consul for Life’. Although Napoleon’s ‘Coup of 18 Brumaire’ had put a de facto end to the First French Republic, its de jure end only came in the Constitution of the Year XII (1804), which established the First French Empire and changed Napoleon’s title from ‘First Consul for Life’ to ‘Emperor of the French’, patriarch of the imperial dynasty of the House of Bonaparte. France would have to wait until after the First Empire (1804-14), the Bourbon Restoration (1814-30), the July Monarchy (1830-48), the Second Republic (1848-52), and the Second Empire (1852-70) to obtain stable republican government in the Third Republic (1870-1940) with the adoption of the French Constitutional Laws of 1875; even then, however, Vichy France (1940-44) was still to come.[32]
Before continuing to an analysis of Haiti and the Bolívarian States of South America, we must ask what a comparison with the American unitary executive reveals about why France’s divided executive collapsed into dictatorship. The first and most profound structural reason concerns the non-unitarian structure of the Directory: the Directors could not, in Edmund Randolph’s words, act with the “vigour, despatch and responsibility” that were “the great requisites for the Executive department” (Hund and Scott n.p.). Second, if we accept Hartz’s ‘liberal society thesis’[33] (Abbot passim), the French history of feudal and monarchic rule almost foredoomed to tyranny any executive the French revolutionaries designed. Third, although the Directory successfully dealt with the external military threats France faced – prosecuting successful campaigns leading to the 1798 Peace of Loeben with the Holy Roman Empire that concluded the Wars of the First Coalition (1791-98) – its domestic legislative enforcement powers – unlike those of the American President – were minimal.
Fourth, constant threats of invasion by wary and vindictive European monarchies, realised in the Wars of the First and Second (1799-1802) Coalitions, in addition to the still-extant possibility of domestic revolution, inclined France towards adopting a strong executive capable of guaranteeing external security and internal stability (Tucker 243 s.f.). Where the need to defend against external threats motivated the American framers (Amar 471-7) to establish a strong unitary executive, in France it led to the establishment of a plural executive that ultimately lapsed into dictatorship. Fifth, unlike the U.S., France had a large and centrally controlled standing army. The framers of the U.S. Constitution recognised that land armies posed a unique threat to liberty (Amar 45), as they were the military organ – as opposed to the navy – most capable of instituting tyranny; for this reason, they required that federal funding for the army lapse every two years unless actively re-appropriated by Congress (art. I § 1, cl. 13). France, with its strong standing land armies, was for this pragmatic reason more prone to falling prey to military dictatorship – as it did with Napoleon in 1799 – than America. Sixth, the absence of a federal system in France allowed executive power to be more easily seized and thus abused. Centralisation of government in Paris was the inheritance of decades of feudal and monarchic rule, predisposing any revolutionary regime towards nationalism and against federalism; moreover, France, unlike America, did not have a history as an alliance of independent states – as was the case under the Articles of Confederation (1777-81) – that would have allowed for federalism to develop. Where the framers could rely on a federal system to balance the risks of a unitary executive, the French could not; though they sought to compensate for this by establishing a plural executive, the Directory was so weak as to precipitate the very tyranny they had sought to avoid.
Finally, though both the American and French revolutionary regimes were anxious to be recognised as legitimate by the European powers, America more successfully navigated this anxiety. Though Adams advocated giving the President a more elaborate title to cast him more in the image of a European monarch (Amar 135), the framers ultimately decided against it, relying on the unitary nature and substantial powers of the President to make him recognisable as an equal to European monarchs. The French revolutionaries chose a more radical path – establishing a plural executive that ran counter to centuries of monarchic rule in Europe and resurrected neo-classical titles that recalled the imperialism of antiquity – and thus allowed for an even more radical reactionary reversion to pseudo-monarchic unitary rule under Napoleon. Not only did Napoleon induce Pope Pius VII to attend his coronation in Paris in order to shroud his military dictatorship in the garb of divine mandate (Tucker 244) but he further attempted to install family members on the thrones of Europe in order to create a sense of monarchic legitimacy surrounding the House of Bonaparte (“Bonaparte Family” n.p.). The divided executive of the Directory, which emerged briefly from the dictatorship of the Committee for Public Safety before collapsing again into Napoleonic tyranny, reveals the merits of the balance the Constitution struck in creating a unitary executive capable of effectively guaranteeing republican government.
B. The Presidencies of Haiti and the Bolívarian States
Although less studied than comparisons to the French Revolution, comparisons to the Revolutionary (1791-1804) and Independent (1804-1915) Haiti, as well the Bolívarian States of South America (1810-30), are equally fruitful in revealing the comparative merits of the unitary structure of the American executive. After being under Spanish rule as part of Hispaniola (1492-1625) and French rule as Saint-Dominigue (1625-1791), Haiti underwent a Revolution (1791-1804) that established the First Empire of Haiti (1804-06). It would take 208 years and 27[34] constitutions before Haiti would establish a constitutional system approximating republicanism in the 1987 Constitution of the Republic of Haiti with Amendments through 2012. Explanations for Haiti’s politico-legal instability sit at a complex nexus of geography[35], culture,[36] and history[37]; however, here as with our analysis of France, we will focus on the constitutional factors alone. The most consistent problem that plagued the early Haitian constitutions was the power they granted the unitary executives they established. Haiti’s first constitution – the Constitution of Saint-Dominigue (1801) – established revolutionary general Toussaint Louverture (1743-1803) as Governor for Life (titl. VIII, art. 28), similarly to the way Napoleon was made First Consul for Life in 1802 and in contrast to the way Washington chose to return to Mount Vernon instead of seizing power at the head of his Continental Army in 1783. Though the Constitution possessed some republican features – limiting future governors to five-year terms (titl. VIII, art. 29) and establishing a legislature in the Central Assembly (titl. VII, art. 19) – it also constitutionalised the potential for revolution by allowing the “highest ranked General” to “take … control of the government” should the Governor fail “to convoke” citizens for an election on time (titl. VIII, art. 33).
Although the death of Louverture in 1803 prevented the development of extended dictatorship under the 1801 Constitution, Jean-Jacques Dessalines (1758-1806) – like Louverture, a revolutionary general – soon realised this dictatorial potential in declaring Saint-Dominigue independent under the Constitution of Hayti (1805), which established him as Jacques I, Emperor for Life (Tucker 283-4). Even after Dessalines’ death in 1806, species of dictatorship endured: the Kingdom of Haiti was declared by Henri Christophe in the north, while the State of Haiti was declared by Alexandre Sabès Pétion in the south (Ferguson and Girault n.p.). In the south, Pétion adopted the Constitution of 1806, creating a nominally republican regime that “proved to be merely a variation of the authoritarianism of Toussaint and Dessalines” (Gaffield 93). The 1816 Revision to the Constitution of 1806 then reinforced this authoritarianism: Pétion was made lifetime President (titl. VII, art. 142), a bicameral legislature was created that could only consider presidentially proposed bills (titl. V, art. 55), and judicial “Tribunals” were appointed comprising “commissioners” that could be nominated and dismissed by the President (titl. VI, art. 152) (Sabourin et al. n.p.). In the north, the unitary executive of Christophe’sConstitution of 1807 was equally dictatorial: the President, who was to serve for life (titl. II, art. 8) (Corbett, n.p.), “was also to be Generalissimo of the army and was intended to have almost complete political and military control” (Gaffield 96). With the death of Pétion (1818) and Christophe (1820), new President Jean-Pierre Boyer continued the precedent of militaristic dictatorship set by Louverture and Dessalines, invading Spanish controlled Santo Domingo (1821-2) and unifying the Republic of Haiti (Ferguson and Girault n.p.).[38] Though his was a relatively long dictatorship[39], Boyer too was ousted in a military coup by Charles Rivière-Hérard in 1843 (Ferguson and Girault n.p.).
Between 1820 and 1915, the Republic (1820-49) and Second Empire (1849-59) of Haiti had 1 Emperor and 23 Presidents, the majority of whom were assassinated in office or overthrown by revolution (Ferguson and Girault n.p.). The practice established by the dictatorial unitary executive of the constitutions of 1801 and 1805 spawned this series of military dictators, many of whom were so confident in the military power of their executives that they saw no need to constitutionalise it. When they sought to symbolically aggrandise the already exorbitant power of the executive, however, they did so constitutionally: the Constitution of 1849 established Faustin Soulouque (1782-1873) as Faustin I, Emperor of Haiti; and the Constitution of 1874 granted Michel Dominigue (1813-77) even broader executive powers, dissolving the bicameral legislature and establishing an executive Council of State to aid in government.[40] From the time of its first constitution in 1801 until 1915, Haiti had 27 leaders: all but Lysius Salomon, Pierre Théoma Boisrond-Canal, Cincinnatus Leconte, and Michel Oreste were generals. Haiti, unlike France in 1875, would have to wait 208 years for a constitution establishing stable republican government.[41] The Constitution of 1987, though suspended in 1988-9, was in place until 2012, when it was substantially amended to form the 1987 Constitution of the Republic of Haiti with Amendments through 2012 (Delva n.p.). These amendments established a semi-presidential system, a bicameral legislature, a new permanent electoral commission, and a constitutional court (Delva n.p.). Even now, however, the future of this republican government under Jovenel Moïse (2017-) remains in doubt (Lederer n.p.).
The Bolívarian States of South America, like Revolutionary and Independent Haiti, showcase the dangers of overly puissant unitary executives. From 1717 until 1819, modern day Venezuela, Colombia, Panama, and Ecuador existed under Spanish rule as the Viceroyalty of New Granada. Its dissolution began in Venezuela with Francisco de Miranda’s establishment of the First Venezuelan Republic (1811-12), which in 1811 formally declared its independence from the Kingdom of Spain in the Venezuelan Declaration of Independence (Martz and Heckel n.p.). After this ill-fated first attempt at independence, Simón Bolívar fought a series of wars (1813-19) against the royalist forces of the Viceroyalty, in 1819 declaring himself President of Gran Colombia (1819-31), which comprised the territories of New Granada (now Colombia and Panama), Venezuela, and Ecuador (Masur n.p.). In reality, however, only New Granada was under his control: Venezuela would be liberated in 1821 and Ecuador in 1822 (“Simón Bolívar” n.p.). After earning the epithet ‘the Liberator’ in freeing Gran Colombia, Bolívar had now to constitute Gran Colombia as a state and earn his second byname as ‘the Lawgiver’.
In 1819, the Congress of Angostura created Gran Colombia, declaring Simón Bolívar President and promulgating the Fundamental Law Establishing Gran Colombia. In 1821 it met again – this time as the Congress of Cúcuta – to adopt the Constitution of Cúcuta for Gran Colombia (Espinosa passim). Bolívar was displeased by the absence from this constitution of the strong unitary executive powers he had endorsed in his Cartagena Manifesto (1812) (Manifesto) and Angostura Address (1812) (Address). In both of these documents, Bolívar’s predilection for strong unitary executives is apparent: he rejects federalism in favour of centralism, republican democracy in favour of aristocratic oligarchy, the balancing of power between separate branches in favour of a strong unitary executive, and local militias in favour of standing armies. His Manifesto, which mourned the collapse of the First Venezuelan Republic, attempted to draw lessons from that collapse in order to correct “the failures of unity, strength, and vigour” that might otherwise arise in the executives of future republics (Bolívar and Bushnell 3). He criticised first its enactment of separate executive, judicial, and legislative powers as an idealist experiment based not on “any practical science of governance” but on the abstract ideals of “worthy visionaries” who sought to construct an “ethereal republic” (Bolívar and Bushnell 4); second, its republican structure, which he argued was “what most weakened the government of Venezuela” (Bolívar and Bushnell 6); third, its democratic processes, which he argued led the “rustic inhabitants of the countryside” to “vote mechanically” and the “intriguers living in the cities” to “turn everything into factions” (Bolívar and Bushnell 6); and finally, its lack of a the strong “standing armies,” (Bolívar and Bushnell 8) [42] which we identified previously as a unique threat to liberty in the mind of the American framers and an important factor in the collapse of the French First Republic. In his Address, intended to establish the basic features of his new state, Bolívar articulates an expansive vision of unitary executive power. He stresses – with reference to the diarchic executive structure of Rome and Sparta[43] – that the executive of Gran Colombia must be unitary in the manner of the American President or the “sovereign authority” (Bolívar and Bushnell 44) of the British Crown but without the excessive restrictions placed on those offices by legislatures[44].
When the Constitution of Cúcuta (arts. 113-32) did not grant the executive the powers[45] he had demanded in his Manifesto and Address, Bolívar turned to other avenues of political advancement, becoming President of Peru (1824-7) and of Bolivia (1825) (Livingstone 60). By 1828, however, in order to prevent civil war between Venezuela and New Granada within Gran Colombia, he summoned another national constitutional convention: the Convention of Ocaña (Masur n.p.). Bolívar hoped at this convention to enact a constitution for Gran Colombia similar to that which he had enacted in Bolivia in 1825, which was far more closely aligned with the vision he had expounded in the Cartagena Manifesto and Angostura Address. Failing to secure support for this plan and in the absence of a new constitution emerging from this convention, Bolívar assumed dictatorial powers over Gran Colombia (“Gran Colombia” n.p.). This led to a year of foreign conflict – the Gran Colombia-Republic of Peru War of 1828-9 – and civil war – Venezuelan skirmishes between supporters of General José Antonio Páez and President Simón Bolívar in 1829 – culminating in the secession of Venezuela from Gran Colombia under Páez in 1829 (Martz and Heckel n.p.). Upon Bolívar’s resignation as President of Gran Colombia in 1830 and subsequent death that same year, Gran Colombia collapsed into the independent states of Ecuador and New Granada and one half of the Bolívarian project came to an end (“Gran Colombia” n.p.).
Bolívarian constitutionalism did not fare better in his eponymous Bolivia. With the resignation of José de San Martín y Matorras – the Argentine general responsible for liberating Peru from Spanish control (1820-21) – at the Guayaquil Conference (1822), Bolívar was named dictator of Peru in 1823, a post he held until 1826 (McFarren and Arnade n.p.). In 1825, Bolívar liberated ‘Upper Peru,’ a then-region of Peru now known as Bolivia. The Bolívarian Constitution (1826) he drafted for this new nation continued the Spanish colonial tradition of centralised government and established a precedent for strong unitary executives – and the military dictatorships that eventuated from them – in Bolivia[46]. The important features of Bolívar’s Constitution enacted those outlined in his Manifesto and Address (Bolívar and Bushnell 64-85): first, an indirect mode of election through “electors” (titl. 3, art. 19) composing an “Electoral Body” (titl, 3, ch. 2); second, qualifications of profession, age, and education for citizenship (titl. 2, art. 13); third, a tricameral legislature consisting of a Chamber of Tribunes (titl. 3, ch. 2), a Chamber of Senators (titl. 3, ch. 3), and a Chamber of Censors (titl. 3, ch. 4); and fourth, a powerful unitary executive (titl. 5, ch. 1). Even when this constitution did establish limits on presidential power, they were not followed (Linz 54-5)[47]. Though this Bolívarian Constitution was short-lived – replaced in 1831 after Bolívar’s death in 1830 – the precedent of favouring overly powerful unitary executives it established would lead to “one of the worst periods of 19th-century caudillo rule in all of Latin America” (Arnade and McFarren n.p.) until the new constitution of 1880 and the presidency of Narciso Campero (1880-84) (Arnade and McFarren n.p.). Only then would this Bolívarian legacy be dismantled and a somewhat more reliable republican system be instituted.[48] As with France and the Vichy regime, however, dictatorial regimes were to rise again in Bolivia following the 1952 revolution (Arnade and McFarren n.p.).
As we did with the French Directory, we must ask what a comparison with the American Constitution reveals about why the overly robust executives of the Haitian, Bolivian, and Gran Colombian regimes collapsed into dictatorship. We may point to six constitutional factors that aided this collapse. First, as was the case of France in Part II A, both Haiti and the Bolívarian states were under constant military threat. From 1819-30, Bolívar was dealing with royalist insurrection, the possibility of new European invasion, and the ever-present threat of internecine civil conflict within his Gran Colombia; similarly, Haiti was under threat from the Dominican Republic until 1858, and from the U.S. – which intervened militarily from 1915-34 and 1994-5 – throughout the 20th century (Ferguson and Girault n.p.). This constant military threat meant a unitary executive was always at risk of precipitating dictatorship. Second, like France, both Haiti and the Bolívarian States required a strong standing army. We mentioned in reference to the French Directory that the American framers saw standing armies as a unique threat to republican government (Amar 45); if their analysis was correct, then the Haitian and Bolívarian States, with their strong standing land armies, were for this reason more susceptible to having their unitary executives slide into autocracy. Third, if we apply to Haiti and the Bolívarian States the same Hartzian ‘liberal society thesis’ we applied to France, their colonial histories foredoomed any executive the revolutionaries designed towards the very tyranny they had escaped (Abbot passim). Fourth, the colonial practice of strong central government under French rule in Haiti and Spanish rule in both Haiti and the Bolívarian States made it difficult to institute federalism as a check on executive power. Centralisation of government power in major cities – Port-au-Prince in Haiti, Quito in Ecuador, Lima in Peru, Bogota in Colombia, Caracas in Venezuela, and Sucre in Bolivia – was the inheritance of decades of colonial rule, predisposing any executive established towards autocracy. Moreover, if federalism is truly a check on executive power then neither Haiti nor the Bolívarian States had the historical advantage that America had in establishing its federal architecture, as it had existed before its constituting as an alliance of independent states under the Articles of Confederation (1777-81). Therefore, while the framers of the U.S. Constitution could rely on a federal system to avoid the problems of a unitary executive, the rulers of Haiti could rely on no such system and Bolívar feared that such a system would lead to the collapse of his plurinational Gran Colombian project into independent New Grenadian, Ecuadoran, and Venezuelan states.
Our fifth point of constitutional comparison is that the presidencies created in Haiti and the Bolívarian States were substantially stronger than that articulated by the U.S. Constitution (Calabresi 98). Though they can enact executive orders, American Presidents do not have the power to “engage in decree lawmaking” or “invoke states of emergency” (Calabresi 98) as Haitian and Bolívarian Presidents did. As elaborated in Part I, this power is further constrained under the Constitution by the “strong legislative leaders” created by the bicameral system, who are endowed with control over executive functions and can prevent the abuse of presidential authority (Calabresi 99). Furthermore, strict term limits (Calabresi 101), the absence from the Constitution of provisions for “national initiatives and referenda” that might be used by Presidents to “move a country towards dictatorship” (Calabresi 100), and an entrenched two-party system (Calabresi 101) all act as restraints on presidential power absent from both counterfactuals explored here.
Finally, we must consider Haiti and the Bolívarian States with reference to Linz’s argument about the very nature of presidential regimes as unitary executive structures being more prone to dictatorial collapse than parliamentary ones; interestingly, this an argument with which Calabresi violently disagrees (Calabresi 51-6)[49]. Ceteris paribus, Linz argues, “a careful comparison of parliamentarism as such with presidentialism as such leads to the conclusion that, on balance, the former is more conducive to stable democracy than the latter” (Linz 52). Linz offers a number of arguments[50] to support his conclusion that, although the “world’s most stable democracy – the United States of America – has a presidential constitution … one cannot help tentatively concluding that in many other societies the odds that presidentialism will help preserve democracy are far less favourable” (Linz 68)[51]. At the conclusion of our constitutional evaluations of the French Directory and the Haiti and Bolívarian Presidencies, the logic of the unitary executive expounded by the framers and canvassed in Part I becomes all the more lucid.
Part III. Washington, Napoleon, Louverture, and Bolívar: Biographical Evaluations of the Unitary Executive
If we agree, with Amar, that the act of ‘constituting’ a nation is a “two-part drama” (Amar 181), involving not only the writing of a constitution but also its embodiment, then what has been thus far unsatisfactory in our evaluation of the American unitary executive and its French, Haitian, and Bolívarian counterparts has been our emphasis on writtenconstitutions as opposed to unwritten biographical ones. The biographical comparisons we will now undertake in Part III will reveal that the success of the American unitary executive was as much the result of the precedents set by its first President as the provisions set out by its framers.
It is fitting here to return briefly to the Roman history we referenced in Part I. On 1 May 305 AD, Emperor Diocletian – who had rescued the Roman Empire from the Crisis of the Third Century (235-84 AD) – declared his resignation at Nicomedia, becoming the first Roman emperor to resign voluntarily since the beginning of the Principate in 27 BC (Lightfoot n.p.). On 23 December 1783, following the signing of the Treaty of Paris, General Washington – who had led the Thirteen Colonies to victory in the Revolution – resigned as commander of the Continental Army and returned home to Mount Vernon. On 22 July 1822, José Francisco de San Martín y Matorras - who had liberated the United Provinces of the Rio de la Plata in the Argentine War of Independence (1810-20) – resigned power peacefully, leaving Argentina for France in 1824 (Bushnell and Metford n.p.).
Not so with Napoleon, Louverture, or Bolívar. A character comparison of Washington and Napoleon is particularly productive, juxtaposing the man who was twice called to leadership by his nation with the man who wrested power violently from the hands of the Directory. Unlike Washington, Napoleon was “desperate for an heir” (Tucker 442). This desire to create a dynasty in the image of the European monarchs led him to leave his first wife, with whom he had not been able to have children, and marry Archduchess Marie Louise of Austria in 1810; he would name his son by her – Napoleon Francis Joseph Charles – King of Rome in 1811 (Godechot n.p.). Washington, on the other hand, had no desire to create a political dynasty and accepted that he would have no heirs.[52] The way they related to their inferiors is also relevant; famously, Washington remained with his Continental Army at Valley Forge during the Winter of 1777-8. In contrast, when Napoleon was stranded in Egypt after his navy was destroyed by Admiral Horatio Nelson in August 1798, he did not stay with his Grande Armée but fled to France in order to overthrow the Directory in the Coup of 9 November 1799 (Tucker 461). Finally, we should consider their deaths. At his death in December 1799, Washington was buried at his home at Mt. Vernon (“Tombs” n.p.). After his death on island of St. Helena, however, Napoleon was transported to France and entombed in the neoclassical military memorial of Les Invalides (Tucker 463) at the heart of Paris. Where Washington saw himself as the inaugural President of a nation that had constituted itself, Napoleon saw himself as a lawgiver – in the tradition of Solomon of Jerusalem, Lycurgus of Sparta, and Solon of Athens – whose duty it was to constitute the nations he ruled (Lobinger 123-6).
In having themselves declared Governor for Life in the case of Louverture, Emperor for Life in the cases of Jean-Jacques Dessalines and Faustin Soulouque, and President for Life in the cases of Henri Christophe and Alexandre Sabès Pétion, the various military dictators of Haiti align more with Napoleon than Washington. Of these four dictators, Louverture offers the clearest parallel to Washington, having led the slave rebellions of Saint-Dominique in 1791 to relative victory in 1801 in a manner analogous to Washington’s leadership of the Continental Army from 1775-83. But while Louverture made himself dictator over the nation he had liberated, Washington retired to Mount Vernon. It is in Bolívar, however, that individual character can be most clearly seen to transform a strong unitary executive into a military dictatorship. Bolívar is often compared to Washington, even being called “the Washington of Latin America” (Elkins and McKitrick 42); in reality, they are antithetical figures, with fundamental differences stemming from their “relationship[s] to authority” (Elkins and McKitrick 42). Though both were aristocratic, Washington was a Virginian aristocrat[53]: a member of a cadre of wealthy plantation owners that lacked the feudal notions of status that pervaded the Old-World aristocracy to which Bolívar belonged (Elkins and McKitrick 42-3). One anecdote concerning Bolívar is particularly telling: “‘Have no fears about the coloured people,’ he once told a confidant. ‘I flatter them because I need them; democracy on my lips, and’ – pointing to his heart – ‘aristocracy here’” (Elkins and McKitrick 43).
Had America had its Napoleon, Louverture, or Bolívar instead of its Washington, the American unitary executive may have followed those of France, Haiti, and the Bolívarian States into dictatorship. At the conclusion of this evaluation of American executive power, we have developed an understanding of the written constitutional and unwritten biographicalstructures that have so far made it such a successful guarantor of republican government.
Conclusion
We began this essay by asking the question the framers asked on Monday June 4, 1787: “shall the blank for the number of the Executive be filled with a single person?”. They answered in the affirmative, designing the unitary executive infrastructure we outlined in Part I with reference to its Roman and European counterpoints. In Parts II and III, we evaluated the merits of that design – from both constitutional and biographical perspectives – with reference to similar revolutionary executive structures in France, Haiti, and the Bolívarian states. At the conclusion to this essay, we are better placed to appreciate how – despite the recent challenges it has faced – the constitution’s textual structures and Washington’s temperament as its first presidential officer have combined to realise, across the span of 234 years, the promise of a “more perfect Union” (pmbl.).
Works Cited
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Endnotes
[1] Two notable examples of such a monarchic-parliamentary system would be the Parliament of England (1341-1707) - which became the Parliament of Great Britain (1707-1800) following the English-Scottish Acts of Union (1706-7) - and the Estates-General of the Kingdom of France (1302-1789).
[2] Among the most important de facto and de jure diarchies extant prior to 1787 number: the diarchic Pandyan dynasty of Tamilakam (1100 AD - 1400 AD); the joint Agiad-Eurypontid kingship of Sparta (~1100 BC - 192 BC); the dual rule of the Phoenician shophets of Carthage (814 BC - 146 BC); the twofold Consulate of the Roman Republic (509 BC – 27 BC); the shared rule of the Captains Regent of San Marino (1243 AD -); the power-sharing arrangement between the Japanese Emperor and his Shogun (1185 AD – 1868 AD); and the secular-religious co-rule of the Dalai Lama and the secular Desi of Tibet (1642 AD – 1751 AD).
[3] A number of polities have adopted de facto and de jure diarchic executive structures since 1787: the co-rule of Canada East and West as the collective Province of Canada (1841-1867) under the Act of Union (1840); the co-principate of Andorra (1993 AD -); the joint executive of Northern Ireland (1998 -); and the dual prime ministership of Israel (2020 -).
[4] For a recent statement of support for a diarchic bipartisan presidential system in a popular forum, see Orentlicher, David. “Does America Need More Than One President?” Time. 3 December 2014.
[5] A summary of the most important de facto and de jure triumvirates extant prior to 1787 would include the ‘Three Ducal Ministers’ of the Shang, Zhou, and Eastern and Western Han Dynasties (1600 BC - 220 AD); the First Triumvirate of the Roman Republic (60 BC - 53 BC); the Second Triumvirate of the Roman Republic (43 BC - 33 BC); the Tetrarchy of the Roman Empire (284 AD - 324 AD); and the Sanshikan of the Ryukyu Kingdom (1429 AD - 1879 AD).
[6] A number of polities have adopted triumvirate executive structures since the 1787 ordainment of the Constitution: the 3rd Committee of Public Safety of the Reign of Terror (1793-4); the Consulate of the First French Republic (1799-1804); the First (1811-12) and Second (1812-14) Triumvirates of the United Provinces of the Rio de la Plata, a Spanish colonial province now encompassing parts of Argentina, Uruguay, Bolivia, Brazil, and the Falkland Islands; the Triumvirate of United Provinces of New Granada (1814-16), a Spanish province now encompassing parts of Venezuela, Ecuador, Colombia, and Panama ; the Provisional Triumvirate of Mexico (1823-4); the Triumvirate of the Roman Republic (1849); the de facto rule of the ‘Three Pashas’ of the Ottoman Empire (1914-18); the de jure triumvirate of the Greek Provisional Government of National Defence (1916-17) and the de facto triumvirate of the Greek military junta (1967-74); the triumvirate of the Dominican Republic (1963-5); the four Troikas of the Union of Soviet Socialist Republics (1922-5, 1953, 1964-77, 1984); the Council of Three of the Polish Government in Exile (1956-72); the Presidential Council of Benin (1970-72); the Government Triumvirate of Nicaragua (1970-72); and the three-member Presidency of Bosnia-Herzegovina (1995-).
[7] The Madison Debates record a 7-3 vote in favour of a unitary executive: Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, and Georgia voted in favour, while New York, Delaware, and Maryland voted against. Washington, notably, voted in favour as presiding officer of the Philadelphia Convention (Hund and Scott n.p.).
[8] I stress the importance of this focus on the written constitution in light of the existence of an equally significant “unwritten constitution” (Amar 8-14). The definition of a constitution provided by the English politician and political philosopher Henry St John, 1st Viscount Bolingbroke in his Dissertation Upon Parties (1733-4) (qtd. in Whitman 1325) is particularly relevant here: “By constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good, that compose the general system, according to which the community hath agreed to be governed.”
[9] There are a number of reasons to be sceptical of the narrowness of this methodology; principally, that an originalist approach operationalises “the tyranny of the dead over the living” (Grewal and Purdy 666). The criticism Grewal and Purdy make of Tuck’s originalist focus in The Invention of Modern Democracy (Grewal and Purdy 667) could also be made of our methodology here: “In a work that contains only a few tentative closing words about the last century-plus of constitutionalism, Tuck shows that today’s originalism, for all its talk of fidelity to law’s origins, is profoundly unfaithful to the very theory of constitutional self-rule on which it made best sense in the first place.” Second, in taking such an originalist stance, we neglect continuing debate over competing “constitutional ontologies” (Grewal and Purdy 669) that attempt to explain the distinction between the people as sovereign and the government as sovereign agent (Grewal and Purdy 681-90), including much recent scholarship and jurisprudence (Grewal and Purdy 691-704).
[10] Largely omitted from this discussion of the historical precedents informing the structure of the American executive is the role of the state governors. In articulating the boundaries of federal executive power the framers sought to strike a balance between the absolute power of the European monarchs and the inadequate powers of the thirteen state governors (Amar 182-3).
[11] This temporal qualification is important. In a concrete sense, the Peace of Munster, Treaty of Munster, and Treaty of Osnabruck (1648) established the Peace of Westphalia, ending the Thirty Years War (1618-1648) and foreshadowing the eventual end of the European wars of religion (1524-1697). More abstractly, however, this triptych of agreements established a new understanding of sovereignty that re-articulated the nature of the sovereign power vested in the European monarchies (Croxton 571).
[12] Specifically, the English House of Stuart (1603-49, 1660-1714), the British House of Hanover (1714-1901), and the French House of Bourbon (1589-1792).
[13] Haiti was known by many names during the first century of its independence: Saint-Dominigue (1625-1804), the First Empire of Haiti (1804-6), the State of Haiti (1806-1818), the Kingdom of Haiti (1806-1820), the Republic of Haiti (1820-49), the Second Empire of Haiti (1849-59), and the Republic of Haiti (1859-1957). We will largely be limiting our analysis to 1915 because it was then that the U.S occupied the nation. The U.S. exercised military control over Haiti from 1915-34 (Bellegarde-Smith et al. 10), in addition to substantial economic and political influence from 1915-47 (Bellegarde-Smith et al. 21-3).
[14] We will be using this phrase as a term of convenience throughout this essay. It designates both Gran Colombia - modern day Venezuela, Ecuador, Colombia, and Panama (Colombia and Panama occasionally referred to collectively as New Granada) - (1819-1831) as well as the Republic of Bolivia (1825-1830).
[15] It is not the intention of this essay to advance Whiggish notions of teleological political development from tyranny to republicanism; rather, it is to simply analyse the attempts of different countries to establish such forms of such republican government.
[16] Ackerman notably disagrees with this belief in the efficacy of non-legal checks on presidential power. Given the inefficacy of such credibility-based checks on presidential power, in his The Decline and Fall of the American Republic (2010) he argues for the establishment of a “Supreme Executive Tribunal” (Ackerman qtd. in Pildes 1391). This would comprise a “nine-member body of presidentially nominated, Senate-confirmed” (Pildes 1391) “judges for the executive branch” (Ackerman qtd. in Pildes 1391) before whom accusations of misuse of presidential could be brought by members of Congress.
[17] We do not mean here to adopt a position in the intense debate about the “royal patriot” founding fathers and their view of the prerogative powers of the old House of Stuart in comparison to the Parliament-bounded powers of the House of Hanover. Indeed, the very piece by Meyer we cite is a review of Nelson’s The Royalist Revolution (2015), which expounds the view of Adams, Hamilton, and Wilson as patriot royalists who sought to case the American presidency in a “royal prerogative” (Meyer 2246) reminiscent of the powers of the Stuart kings. Nelson’s response (Nelson 354-8) deals persuasively to many of the criticisms Meyer levies against his royal patriot thesis. Whether we agree with Meyer or Nelson is, however, immaterial: either way, such a historical argument does not support Barr’s strong reading of presidential power.
[18] Concerns about the powers of the House of Representatives are expressed by George Mason in his speech to the Virginia Convention on June 4, 1788 (Kaminsky et al. n.p.); concerns about the size of the House of Representatives are expressed by William Brutus IV in his New York Journal piece of November 29, 1787 (Kaminsky et al. n.p.); concerns about the term length of members of the House of Representatives are expressed by the Federal Farmer in his An Additional Number of Letters to the Republican, published in New York on May 2, 1788 (Kaminsky et al. n.p.); and, finally, concerns about modes of election to the House of Representatives are expressed by the Federal Farmer in those same Letters of May 2, 1788.
[19] Pildes (1424) provides an eloquent summary of the moderate reading ot executive power we have adopted: “Between the legal romantic’s vision of presidents treating legal compliance as the highest value and always acting on the basis of the best, good-faith interpretation of the law, and the cynic’s vision of presidents willing to ignore the law when judicial enforcement is unlikely, lie the complex realities of the relationship between presidential power and law. Presidents rarely proclaim in public their outright defiance of law, but they (and their legal advisors) at times push the boundaries of legal compliance by embracing tendentious legal positions not widely shared among legally knowledgeable interpreters but that nonetheless enable presidents to pursue their policy aims. In addition, apparent legal constraints on presidential power sometimes leave presidents with more discretion than the symbolism of those constraints would suggest. And perhaps contexts do exist in which large public and political majorities would prefer presidents to act on the basis of their best policy judgments, even if those judgments might be in tension with existing law.”
[20] On Saturday June 16, 1787, James Wilson declared that “in order to control the Executive you must unite it. One man will be more responsible than three. Three will contend among themselves till one becomes the master of his colleagues. In the triumvirates of Rome first Caesar, then Augustus, are witnesses of this truth. The Kings of Sparta, and the Consuls of Rome also prove the factious consequences of dividing the Executive Magistracy.” (Wilson n.p.).
[21] Ames and Montgomery offer a number of reasons to doubt the British heritage of this Roman notion of the separate powers checking one another (Ames and Montgomery 25-6): first, the House of Commons has the power to terminate the tenure of the Prime Minister and his Cabinet; second, Parliament is sovereign and thus possesses inordinate power over the other branches; and third, the judicial branch is weakened insofar as it cannot make reference to a written constitution in defence of the rights of British citizens.
[22] 7th Governor of Virginia (1786-8), 1st U.S. Attorney General (1789-94), and 2nd U.S. Secretary of State (1794-5) Edmund Randolph, who had proposed the Virginia Plan to the Philadelphia Convention, opposed a unitary executive, suggesting instead a triumvirate composed of three men from the three regions of the nation. According to the Madison Debates, on Friday June 1, 1787, Randolph suggested that “a unity in the Executive” was the “foetus of monarchy,” and that he “could not see why the great requisites for the Executive department, vigour, despatch and responsibility could not be found in three men, as well as in one man. The Executive ought to be independent. It ought therefore, in order to support its independence, to consist of more than one” (Hund and Scott n.p.).
[23] Anti-Federalists like George Mason and Richard Henry Lee - Virginian Delegate to the Congress of the Confederation (1784-87), 4th President of the Congress of the Confederation (1784-85), U.S. Senator for Virginia (1789-1792), and President pro tempore of the U.S. Senate (1792) - were concerned at the prospect of a unitary executive: Mason in particular lamented the absence of an American equivalent of the Privy Council from the Constitution’s description of the executive: “the President of the United States has no Constitutional Council (a thing unknown in any safe and regular government)” (Kaminsky et al. n.p.).
[24] Hugh Williamson, member of the House of Representatives for North Carolina’s 2nd (1790-1) and 4th (1791-3) districts, supported the notion of a plural executive, either in the form of a pseudo-Privy Council or a triumvirate. The Notes of Rufus King in the Federal Convention of 1787 note that on Thursday May 31, 1787, Williamson declared - in support of a plural executive - that “there is no true difference between an Executive composed of a single person, with a Council, and an Executive composed of three or more persons” (Tansill n.p.).
[25] Philadelphiensis wrote in the Anti-Federalist No. 74 that “the President is a King to all intents and purposes, and at the same time one of the most dangerous kind too - an elective King, the commander in chief of a standing army, etc. And to those add, that he has a negative power over the proceedings of both branches of the legislature. And to complete his uncontrolled sway, he is neither restrained nor assisted by a privy council, which is a novelty in government” (“The Anti-Federalist Papers” n.p.).
[26] Many present at various points during the Philadelphia Convention did not sign because they were not physically present on the day of the signing for reasons unrelated to substantive disagreements with the Constitution: Oliver Ellsworth and Erastus Wolcott of Connecticut; William Houstoun, William Pierce, and Nathaniel Pendleton of Georgia; Thomas Sim Lee, and Thomas Stone of Maryland; William Davie and Alexander Martin of North Carolina; and James McClurg, Thomas Nelson and George Wythe of Virginia. Some, however, refused to sign or left the Convention early in protest on the basis of substantive reservations about the document: Luther Martin and John Mercer of Maryland; Elbridge Gerry and Caleb Strong of Massachusetts; John Lansing and Robert Yates of New York; and George Mason, Richard Henry Lee, Patrick Henry, and Edmund Randolph of Virginia (“Founding Fathers” n.p.).
[27] On Monday June 4, 1787, Elbridge Gerry of Massachusetts argued in favour of a unitary executive: “all know that a single magistrate is not a King. One fact has great weight with him. All the 13 States, though agreeing in scarce any other instance, agree in placing a single magistrate at the head of the Government. The idea of three heads has taken place in none. The degree of power is indeed different; but there are no co-ordinate heads. In addition to his former reasons for preferring a unity, he would mention another. The tranquillity not less than the vigour of the Government he thought would be favoured by it. Among three equal members, [I] fores[ee] nothing but uncontrolled, continued, and violent animosities; which would not only interrupt the public administration; but diffuse their poison through the other branches of Government.”
[28] The desire to be able to clearly apportion responsibility for governmental action was another motivation behind the decision against an American iteration of a Privy Council: “As The Federalist No. 70 observed in language distilling statements made by Wilson, Madison, Ellsworth, Gouverneur Morris, Charles Pickney, and others, Article II was structured to prevent a president from claiming, ‘I was overruled by my council’” (Amar 197).
[29] Emphasis is placed on the word strictly here because we could not possibly deal, in a paper of this length, with the full host of geographic, cultural, and historical factors that play into the success or failure of a constitutional regime. Although we will be dealing with some of these factors in passing, they will in no way be addressed in full; the same is true of the full scope of unwritten constitutional dimensions (Amar passim).
[30] The obvious qualification to this assertion of the success of American executive power in maintaining republican government is the Civil War (1861-1865). We do not give this more weight in our comparison, however, for a number of reasons: first, although the Civil War shook the foundations of the “more perfect Union” (pmbl.), the result of the war was not the abandonment of the Constitution but its amendment to accommodate the changes the victors wrought; second, the institution of these changes - i.e. the Reconstruction Amendments (1865, 1868, 1970) - did not precipitate more conflict but was successful in altering America’s written and unwritten Constitution, albeit at a lamentably slowly pace in some states; third, every amendment to the Constitution since the Civil War – and indeed before the war – has been adopted with the intent to enhance the liberty and equality enjoyed by American citizens (Amar 259-60), not to confiscate those boons in order to broaden the scope of executive power; and fourth, finally, and most importantly, the Civil War was not the consequence of a failure of the executive but the coming to fruition of vast geographical, cultural, and historical forces at play in America since the arrival of the first enslaved peoples on the continent in 1619. If anything, the role of Lincoln in preserving the Union and laying the groundwork for its reconstruction demonstrates that the American experience during the Civil War vindicates the Constitution’s structuring of unitary executive power.
[31] The National Convention (1792-5) postponed the implementation of this Constitution, leading to the Reign of Terror (1793-4). The provisions of the Constitution were as follows (“1783: French Republic Constitution of 1793” n.p.):
(1) Citizenship was restricted by age, gender, and property (arts. 4-5);
(2) Though naturalisation was possible through habitation or family connection, citizenship could also be suspended or permanently revoked for criminal offences (art. 6);
(3) Representation in the Primary Assembles, the National Representation, the Electoral Assemblies, and the Legislative Body would be determined by population rather than social status, as was the case under the Estates-General (1302-1789) (arts. 22, 37);
(4) The relationships between the four different electoral bodies the Constitution created were byzantine and the procedures of legislative enactment it specified were stringent, best analogised to the processes of constitutional amendment under the American Constitution (arts. 21-60);
(5) The executive power was invested in a 24-member Executive Council appointed by the Electoral Assembly (art. 62);
(6) The right to choose the ones judge in the Civil Justice System, with these judges having been elected by Cantons beforehand (art. 86, 91);
(7) The right to a jury and to represent oneself if accused at trial in the Criminal Justice system (art. 96);
(8) Military systems were established as tools of foreign affairs, with explicit stipulations that France would not interfere with the government of other free nations or establish peace with an enemy nation that had occupied French territory (arts. 107-14, 118-21); and
(9) Negative rights of “equality, liberty, security, property, the public debt, free exercise of religion, general instruction, public assistance, absolute liberty of the press, the right of petition, the right to hold popular assemblies, and the enjoyment of all the rights of man” (art. 122).
[32] Should we take the more sceptical view as to the future of French republican government, then even in the case of the French Fifth Republic (1958-), “the jury is still out” (Linz 52).
[33] In his The Liberal Tradition in America (1955), Hartz advances what is commonly referred to as the ‘liberal society thesis’. This thesis sought to explain the success of America’s democratic project and its resistance to ideologies of both the far-right and far-left. Hartz advances three arguments in support of this thesis: first, that the absence of a history of feudalism in the Thirteen Colonies saved the framers the difficulty of reckoning with the vestigial structures of that more conservative form of political organisation; second, that the availability of land and resources forestalled scarcity-driven political conflicts that would otherwise have challenged the emergence of federalised democratic republicanism; and third, that the prominence of Lockean liberal beliefs among the first founders and early colonists of the Thirteen Colonies established a consensus amenable to the establishing of the republic framed in the Constitution.
[34] Haiti established new constitutions in the 1801, 1804, 1805, 1807, 1811, 1816, 1843, 1816, 1846, 1849, 1867, 1874, 1879, 1888, 1889, 1902, 1918, 1932, 1935, 1932, 1946, 1950, 1957, 1964, 1983, 1987, and 2012 (Corbett n.p.).
[35] Haiti, as a resource-poor island, faces a unique set of geographic challenges. In the past two decades, it has been struck by six major natural disasters: Tropical Storm Jeanne in 2004, Tropical Storm Fay in 2008, Hurricanes Gustav, Hanna, and Ike in 2008, and a major earthquake in 2010. Although America is also frequently victim to similar natural disasters – the California Wildfires in 2018, Hurricanes Maria, Irma, and Harvey in 2017, Hurricane Matthew in 2016, and the Tennessee Wildfires in 2016 – its economic strength offsets the cost of dealing with the damage of these disasters. Vulnerability to natural disaster has systematically inhibited the economic development of Haiti and thus undermined the stability of its political organisation.
[36] Haiti’s racial history, much like America’s, is complex. Of the 556,000 inhabitants of Saint-Dominigue in 1789, 32,000 were Europeans, 24,000 affranchis of mixed European and African descent, and 500,000 were enslaved people of African descent (“Haitian Revolution” n.p.). The racial tensions that had catalysed the Haitian Revolution were not abated when the French Legislative Assembly in April 1792 (“Haitian Revolution” n.p.) granted citizenship to all affranchis and were exacerbated when in 1802 Napoleon re-established slavery in the French colonies of Guadeloupe and Martinique. The Constitution of Haiti (1805) attempted to address these racial problems by banning whites from claiming Haitian citizenship or owning Haitian land (art. 12) and declaring all Haitian citizens “Blacks” (art. 14) (“1805 Constitution of Haiti” n.p.). Political instability is “a legacy of slavery that has continued to have a profound impact on Haitian history” (“Haitian Revolution” n.p.).
[37] We discussed in earlier the history of American intervention in Haiti from 1915 onwards as a reason for concluding the majority of our analysis of the Haiti in 1915. Even in the late 20th century during the Cold War, the U.S. continued to intervene in Haiti. The political inference of the U.S. in Haitian political life is one of many historical factors not fully accounted for by this essay in its evaluation of the instability of Haitian executive systems (Bellegarde-Smith et al. 25).
[38] This Haitian control over Santo Domingo - now the Dominican Republic - ended in 1844 with the military assertion of Dominican independence by Juan Pablo Duarte (1813-1876); conflict between Haiti and the proto-Dominican Republic would continue, however, until it attained independence under Anglo-French protection in 1855.
[39] Even under Boyer, Haiti was not confident in its ability to guarantee its independence. As the Bourbon Monarchy had been by this time restored (1814-30) and threatened a reassertion of its colonial presence in the Carribean, President Boyer was forced to agree to pay reparations to the Kingdom of France in exchange for its recognition of Haitian independence; from 1825 until 1947, Haiti paid these reparations to France in exchange for the continued recognition of its independence (Willsher n.p.).
[40] In a coup similar to the one that overthrew Boyer, Rivière-Hérard was replaced by Philippe Guerrier (1757-1845) in 1844. Jean-Louis Pierrot (1761-1857) succeeded Guerrier after his death in 1845; in 1846, however, he was then overthrown by Jean-Baptiste Riché (1780-1847). In 1847, Riché died and was replaced by Faustin Soulouque (1782-1873), who pronounced himself Emperor Faustin I (Ferguson and Girault n.p.). A coup by Fabre Geffrard (1806-1878) in 1859, however, forced Soulouque to resign. Geffrard was overthrown by Sylvain Salnave (1827-1870) in 1867; his successor, Jean-Nicolas Nissage Saget (1810-1880), was overthrown in 1874; Michel Dominigue (1813-1877) was overthrown in 1876; Pierre Théoma Boisrond-Canal (1832-1905) was overthrown in 1879; Lysius Salomon (1815-1888) was overthrown in 1888; Pierre Théoma Boisrond-Canal was overthrown again in 1888; Francois Denys Légitime (1841-1935) was overthrown in 1889; Florvil Hyppolite (1828-1896) was overthrown in 1896; Tirésias Simón Sam (1835-1916) was overthrown in 1902; Pierre Théoma Boisrond-Canal (1832-1905) was overthrown for a third time in 1902; Pierre Nord Alex (1820-1910) was overthrown in 1908; François C. Antoine Simón (1843-1923) was overthrown in 1911; Cincinnatus Leconte (1854-1912) was overthrown in 1912; Tancrède August (1856-1913) was overthrown in 1913; Michel Oreste (1859-1918) was overthrown in 1914; Oreste Zamor (1861-1915) was overthrown in 1914; and Joseph Davilmar Théodore (1847-1917) was overthrown in 1915, as was Vilbrun Guillaume Sam (1859-1915) (Ferguson and Girault n.p.).
[41] From 1915-1957, Haiti had 12 Presidents. The first four - Philippe Sudré Dartiguenave (1863-1926) ruled from 1915-22, Louis Borno (1865-1942) from 1922-30, Louis Eugène Roy (1861-1939) in 1930, and Sténio Vincent (1874–1959) from 1930-41 - had no military affiliation and experienced relatively peaceful transitions of power. Élie Lescot (1883–1974) - President from 1941-46 - however, was overthrown in 1946 by General Franck Lavaud (1903-66). Despite a brief return to non-military government under Dumarsais Estimé (1900-53) from 1946-50, Lavaud reclaimed power in 1950, before then handing power to General Paul Magloire (1907-2001), who ruled from 1950-56. From 1956-7, Haiti had three Presidents - Joseph Nemours Pierre-Louis (1900-66), Franck Sylvain (1909-87), and Daniel Fignolé (1913-86) - and one military ruler - Antonio Thrasybule Kébreau (1909–1963) - before the beginning of the Duvalier Dynasty (1957-86). President from 1957-71, Francois Duvalier (1907-71) adopted the Constitution of 1964, which made him President for Life. His son Jean-Claude Duvalier (1951-2014) succeeded him from 1971 until he was forced into exile in France in 1986.
From 1986 to 2020, the Republic of Haiti has had 13 Presidents under its Constitution of 1987. General Henri Namphy (1932-2016), who had ruled Haiti from 1986-88, led a coup against the first democratically elected leader of the newly constitutionalised Haiti: Leslie Manigat (1930-2014), who ruled briefly in 1988. Military figures in the form of Namphy and Matthieu Prosper Avril (1937-) ruled from 1988-90. Though the military would coup again in 1991 under Raoul Cédras (1949-) and in 1992-3 under Marc Bazin (1932-2010), Haiti would see pseudo-democratic governance under Ertha Pascal-Trouillot (1943-) from 1990-91; Jean-Bertrand Aristide (1953-) in 1991, 1993-4, and 1994-6; Émile Jonassaint (1913–1995) in 1994; and René Préval (1943–2017) from 1996-2001. Aristide’s fourth return to power from 2001-2004 would end with Haiti’s third military coup since the end of the Duvalier era in 1986 and the instatement of the United Nations Stabilisation Mission in Haiti (UNSTAMIH) (2004-17). UNSTAMIH installed Boniface Alexandre (1936-) as Provisional President from 2004-6, before a return to pseudo-democratic rule in 2006. Préval returned to power from 2006 to 11, followed by Michel Martelly (1961-) from 2011-16, Jocelerme Privery (1953-) from 2016-17, and Jovenel Moïse (1968-) from 2017-present.
[42] Bolívar offers the following analysis as an endorsement of militias and rejection of standing armies: “Republics, we are told by our statesmen, do not require salaried soldiers to maintain their freedom. Every citizen will become a soldier when the enemy attacks. Greece, Rome, Venice, Genoa, Switzerland, Holland, and recently North America defeated their enemies without the help of mercenary troops, who are ever ready to uphold despotism and subjugate their fellow citizens. The simple-minded were easily taken in by these impolitic and imprecise arguments, but they did not fool the prudent, who were well aware of the immense difference existing between nations, times, and the customs of those republics and ours. It is true that they did not pay for standing armies, but that was because in antiquity there were none, and they entrusted their salvation and the glory of the State entirely to their political virtues, Spartan habits, and military character, qualities we are far from possessing. With regard to modern republics that have thrown off the yoke of their tyrants, it is no secret that they did so by maintain-ing a strong enough veteran contingent to guarantee their security. One exception to this rule is North America: being at peace with the rest of the world and surrounded by oceans, they saw no need in recent years to maintain an army of veteran troops to defend their borders and towns (Bolívar and Bushnell 5).
[43] Of Rome and Sparta Bolívar says the following: “The Roman constitution produced greater power and fortune than that of any other nation on earth; in it, there were no provisions for an exact distribution of powers. The consuls, the senate, and the people served also as legislators, magistrates, judges; everyone partook of all powers. The executive power, consisting of two consuls, had the same flaw as that of Sparta” (Bolívar and Bushnell 41).
[44] Specifically, Bolívar makes the following comment, expressing a desire to recreate the effectiveness of the American unitary executive model without the encumbrances of robust congressional oversight: “although the powers of the president of the United States are limited by excessive restrictions, he alone exercises all the governmental functions vested in him by the constitution, and his administration must necessarily be more uniform, consistent, and autonomous than that of an authority diffused among numerous individuals whose composite could hardly be more monstrous” (Bolívar and Bushnell 37).
[45] The executive power outlined in the Constitution of Cúcuta (titl. V) possessed many of the features of the American presidency and was not as expansive as Bolívar desired. It established an executive with (Espinosa passim):
(1) A unitary nature, consisting of a President (art. 105);
(2) Birthright and age requirements for both the President and Vice-President (art. 106);
(3) A Vice-President that would take the place of the President in the event of “death” or “resignation” (art. 107);
(4) Fixed salaries for the President and Vice-President (art. 112);
(5) Presidential power to maintain exterior defence and internal peace (art. 113);
(6) Presidential obligations to executive the laws, decrees, statutes, and acts of Congress (art. 114);
(7) Presidential power to command the army and navy of Gran Colombia, only with the consent of Congress (art. 117);
(8) Presidential power to declare war, only with the consent of Congress (art. 119); and
(9) Presidential power to engage in international agreements, only with the consent of Congress (art. 120).
[46] Bolivia’s first constitution, framed a year earlier by the Constituent Assembly in 1825 (“Constitutional History of Bolivia” n.p.), had established a republican model of government, involving a system of separate legislative, judicial, and executive powers; the absence from it of strong executive power was what had Bolivar railed against in his Manifesto and Address.
[47] As Linz argues (54-5): “one could explore in depth the contradictions between the constitutional texts and political practices of Latin American presidential regimes; any student of the region’s history could cite many examples.” Bolívar is just the one of many examples of such leaders, whose dictatorial political practices extended even beyond the considerable powers afforded to the executives of the governments they led.
[48] As was the case in our previous discussion of Haiti, this statement must be qualified with reference to recent history. The Bolivian National Revolution (1952) was followed by a military coup in 1964 that began two decades of military dictatorship. From 1970-1982, a series of military and pseudo-democratic regimes ruled Bolivia before democracy reasserted itself under President Hernán Siles (1982-5) (“Bolivia” n.p.).
[49] Calabresi offers ten arguments in support of presidential systems as opposed to parliamentary ones: first, the American presidential system best correlates popular will with governmental power (Calabresi 56-9); second, the American model guarantees stability (Calabresi 59-66); third, prime ministers lack the legitimacy of presidents as executive officers (Calabresi 66-71); fourth, presidential models allow for more democratic control of the administrative bureaucracy (Calabresi 71-5); fifth, the two-party system favoured by presidential models is preferable to parliamentary multi-party systems (Calabresi 75-8); sixth, presidentialism avoids the problems of highly ideological politics (Calabresi 78 s.f. – 85); seventh, presidential systems are more compatible with robust systems of judicial review (Calabresi 85-7); eighth, presidentialism is more compatible with legislative bicameralism and federalism (Calabresi 87-90); ninth, presidential systems are more effective in times of emergency and particularly times of war (Calabresi 90-2); and tenth, presidential systems are better at preserving status quo liberties (Calabresi 92-5).
[50] The arguments Linz makes in favour of his anti-presidential thesis are sixfold: first, when the powers and mandates of the prime minister and president are compared in a semi-presidential system, the great power given to the president is often disproportionate to his mandate (Linz 53); second, in semi-presidential systems, competing claims of democratic legitimacy can arise between the president and the legislature (Linz 53); third, fixed presidential terms preclude responsiveness to shifts in the temperament of the electorate (Linz 53, 66-8), creating a system of “rigidity” often misconstrued as “stability” (Linz 64-6); fourth, the zero-sum electoral model of presidential elections precludes the nuanced political representation offered by parliamentary systems (Linz 56), which is particularly problematic in polarised electorates (Linz 57); fifth, the “style of presidential politics” (Linz 60) - fusing the roles of “holder of executive power” and “symbolic head of state” (Linz 52) - can invite authoritarianism, particularly because the president can claim a more universal mandate than a prime minister and thus conflate the support of the plurality of voters with the support of their totality (Linz 62); and sixth, presidential-parliamentary models face challenges of dual legitimacy by creating a non-unitary executive (Linz 63).
[51] Here again, Calabresi disagrees with Linz (Calabresi 95-102). The scope of this essay unfortunately does not allow for a greater discussion of this productive disagreement.
[52] In a letter to his nephew George Augustine Washington on 25 October 1786, Washington declared that upon his death he wished Augustine to inherit his estate. As to the chance that he may still have children, he wrote the following: “You may say, or think perhaps, that as there is a contingency tacked to this intimation, the offer is too precarious to hazard the expense of building; but if Mrs Washington should survive me, there is a moral certainty of my dying without issue; and should I be the longest liver, the matter in my opinion, is hardly less certain; for while I retain the faculty of reasoning, I shall never marry a girl; and it is not probable that I should have children by a woman of an age suitable to my own, should I be disposed to enter into a second marriage” (“Founders Online” n.p.).
[53] Elkins and McKitrick offer a far more extensive elaboration of the difference in the characters of Washington and Bolívar (Elkins and McKitrick 42): “Bolívar was an aristocrat, but hardly in any Virginian sense: he drew few if any of his social or political sanctions from his peers. All authority, and all glory and preferment, descended from the person of the King. With Napoleon’s invasion of the Spanish peninsula the power of the Crown was swept away, which meant that in the New World colonies a man of towering ambition, as Bolívar was, could suddenly make his own glory and his own authority. He could fashion the role all by himself, depending solely on personal ‘charisma’ (a term that has been applied mistakenly, and somewhat clumsily, to Washington). Like Bonaparte, whose motives, and inner drives his own so much resembled, Bolívar through his military exploits made himself a king in all but name. He had the conquistador's impulse to fling aside the law, and then to redeem his acts through conquest. He treat cabildos and other legislative bodies with lofty contempt. He wrote and promulgated his own constitutions. Though he was capable of strong affections, his personality was actually quite self-sufficient; thanks to his egotism it had little need to depend on others, a principle that applies to all his military and political subordinates. ... He recognised no peers, least of all the other great revolutionary leaders of Latin America. He detested San Martín, the liberator of Peru, who was doing all the same things there that he had done in Venezuela. ... Truth served him in much the way it served Bonaparte. He pretended to be a republican while hoping to reconstitute the Empire under himself. … In the relationships that define authority, the two ‘Washingtons’ were as far apart as were the two worlds in which they moved.”