Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Professor Steven G. Calabresi, the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He is Chairman of the Federalist Society's Board of Directors. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: We know that the Founders formed a new government with 3 coequal branches - Legislative, Executive, and Judicial. Today we’re talking to Professor Steven Calabresi to learn about how and why the Founders chose this particular way to separate power. How does the unique structure of the American Constitution ultimately protect the rights of the people? STEVEN CALABRESI: When one reads the Constitution, the first thing one notices is the preamble. The second thing one notices is that Article 1 says that, "All legislative power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." And Article 2 begins by saying, "The executive power shall be vested in a president of the United States." And Article 3 begins by saying, "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish." Those three vesting clauses of Article 1, Article 2, and Article 3 recognize the separation of powers in the US Constitution. And the separation of powers is a deliberate effort by the framers building on the writings of Montesquieu, who published his Spirit of the Laws in 1748 or 1749. And Montesquieu argued that there should be a separation of legislative, executive, and judicial power for the same reason that the ancient philosophers thought there should be a mixed regime of the one, the few, and the many. Essentially, Montesquieu, like the ancient philosophers and like Lord Acton, was concerned with the idea that power corrupts and absolute power corrupts absolutely. And so he wanted there to be a separation of powers, so that there wouldn't be absolute power which would corrupt absolutely. And that's the underlying reason we have the separation of powers. Montesquieu was an enlightenment philosopher who rejected feudalism. So he realized in 1748 that hereditary monarchy and hereditary house of lords had no future. But he still wanted to preserve the separation of the mixed regime of the one, the few, and the many, which he thought the British had. And so he decided that instead of separating power among one person, a few people, and many people, power should be separated functionally with legislative power being given to one amity, in our Constitution, the Congress, which consists of two houses, executive power being given to one person, the president, who's subject to all sorts of checks and balances, and then judicial power being given to the Supreme Court and to the inferior courts Congress chooses to create. And Montesquieu hoped by this functional separation of powers to preserve liberty the way Aristotle, Polybius, Cicero, Saint Thomas, Aquinas, and Machiavelli all hoped that a division of power among the one, the few, and the many would preserve liberty under the British constitution. So that's the core animating idea of the separation of powers. There is an interesting thing, which is that while the framers endorse the separation of powers, in the vesting clauses of Article 1, Article 2, and Article 3, when one looks at the actual institutions that the Constitution creates, we find that they drew heavily on British antecedence and colonial antecedence. And so the United States, underneath its separation of powers, is also a democratic version of Britain's mixed regime. So for example, the executive power is vested in one president, and the president has many but not all the powers that King George III had. The power of the few, or the aristocracy, is vested in the Senate, which senators enjoy six-year terms and are all millionaires or multi-millionaires, and so they clearly are oligarchs or aristocrats, depending on what you think of the party in power at any given time. And Supreme Court justices, frankly, are aristocrats or oligarchs, whatever one thinks of them at any given point in time. So those elements of the American constitutional regime represent the power of the few. And then the House the Representatives is directly elected by the people and reflects the power of the many. But the framers did something ingenious to the British constitutional regime, which is they did it, and it was done actually over the course of decades by the American people after the American founding, so that today we the people elect the one president ourselves through the mechanism of the electoral college, which almost always gives victory to the popular vote winner. We the people directly elect US senators, who are among the few aristocrats. But it's the many who pick which of the few aristocrats get to be aristocrats. The president and the senate together pick Supreme Court justices. And the people make their wishes known on that in presidential and senatorial elections. And the many, in addition to picking the one and the few, and the one president and the few in the Senate and indirectly therefore the Supreme Court, the many also elect the House of Representatives and their state governments. So the United States is one of the most perfect democracies in the world in that almost every entity in the government is accountable in some way or another to the people. The power is divided, not only through the separation of legislative and judicial powers, but also among the one, the few, and the many who the people all get to elect at different staggered intervals of time. PUBLIUS: You’ve explained the benefits and the reasons that the Founders chose to separate power into the 3 branches. Have later generations agreed with this choice? Does the separation of powers actually prevent the government from accomplishing goals like social reform? STEVEN CALABRESI: Now, in terms of ideas for possible reforms of the structural constitution, the most common criticism that has been made of the US Constitution is one that was first advanced by Woodrow Wilson in 1880. And Woodrow Wilson, in 1880, became a huge admirer of parliamentary government, which by then had emerged in the United Kingdom. And the United Kingdom had two great parties: a conservative party led by Benjamin Disraeli and a liberal party led by Gladstone. Future president Woodrow Wilson, then political scientist Woodrow Wilson, thought that a parliamentary system, where there was no set of checks and balances, could better accomplish progressive reforms and he denounced the American system of checks and balances and separation of powers and federalism as having been adopted in Philadelphia essentially by rich men in order to protect their property from the masses. In one form or another, the Woodrow Wilson critique of the separation of powers and checks and balances has persisted down to the current day. In the 20th Century, the economist Charles Beard argued that the framers had been motivated by concern for the wealthy and concern over property. Forest McDonald conclusively proved that Charles Beard was wrong about that in a book called " We the People", which was published in the late 1950s. President Wilson, once he became President Wilson, became much fonder of presidential power at least and he began to think that maybe a very strong presidency, like the one exercised by Theodore Roosevelt or the one that he administered or the one that was administered by President Franklin D. Roosevelt, maybe a very strong presidency could accomplish the social justice reforms that otherwise checks and balances inhibited. This view remained popular among liberal constitutional reformers until the election in 1968 of President Richard M. Nixon, at which point the progressive constitutional reformers announced that we had an imperial presidency and that the president was too powerful and that we needed to strengthen the legislature. The question of whether or not a separately elected president and a separately elected House of Representatives and Senate was desirable was raised again by Lloyd Cutler, who was astonishingly a White House Counsel to Presidents Harry Truman, Jimmy Carter, and Bill Clinton, and therefore served in that role under three different presidents. And Lloyd Cutler argued in the late 1980s, that we should, at a minimum, eliminate the incompatibility clause and allow senators and congressmen to serve as cabinet secretaries. And happily, that idea has died out. The only significant academic opponent of separation of powers today is Professor Ackerman at Yale Law School. PUBLIUS: You mentioned that Woodrow Wilson thought that the British Parliamentary system was a much better alternative to the American system. How does the British system work differently than ours? Are there other parliamentary or constitutional governments that facially resemble the American system but work differently in practice? STEVEN CALABRESI: One problem that might be noted is what parliamentary government means in the United Kingdom today because usually the advocates of parliamentary government, like Woodrow Wilson, were also advocates of the UK's system of parliamentary government. In the United Kingdom today, acts of Parliament are still acts of the sovereign and there is no judicial review of acts of Parliament. That's because acts of Parliament are passed by the House of Commons and they go into effect whether or not agreed to by the House of Lords and the Monarch has, since 1839, always assented to any act of Parliament presented to him or her. So in the UK, there is today essentially a dictatorship of a majority of the House of Commons and there's no really meaningful alternative center of power. The House of Lords lacks legitimacy because it's not elected and British courts don't have the power of judicial review. Britain has usually, in the 20th Century, had a three party system; the conservative party, the labor party, and the liberal party. Margaret Thatcher, during her 12 years as Prime Minister, won three elections and each time, she earned 43% of the vote nationwide. So the way the British constitution worked under Thatcher was that she had total power to make even constitutional changes as a result of having received 43% of the vote in three elections, five years apart. She was eventually succeeded by Anthony Blair, Tony Blair, who in 1997, won a three party election against the conservative party and the liberal party, also receiving about 43% of the vote. Tony Blair, with this plurality victory of 43% of the vote, proceeded to make major constitutional changes to the English unwritten constitution. First of all, he devolved power to the Scottish Parliament and to a separate parliament in Wales and to a separate assembly in Northern Ireland and to a Mayor of the City of London. And these devolutions of power have turned out to be irreversible and have led to a significant independence movement in Scotland, which didn't exist prior to Blair. Tony Blair also passed a statute called the "Human Rights Act of 1998", by which he empowered British judges to interpret British statutes in light of the European Convention on Human Rights, which is a human rights convention that Britain signed in the 1950s and which is interpreted by a court that represents 48 countries, all of which are members of the Council of Europe, which includes the dictatorial Russian Federation. And that court, the European Court of Human Rights, sits in Strasbourg, France and interprets the European Convention on Human Rights. Tony Blair essentially made that European convention on Human Rights and that court's decisions into British law and directed British judges to interpret British law in light of the European Convention and in light of the European Court of Human Rights' decisions. Tony Blair also made a constitutional change by removing the voting power of about 700 members of the House of Lords, who were hereditary aristocrats. And he provided that the hereditary aristocrats could elect 92 members of the House of Lords, but they would otherwise no longer be members of the House of Lords. This is certainly a desirable move. I would never defend a hereditary House of Lords, but it's odd for a government that won one election with 43% of the vote to make a constitutional change of that kind. So these are all examples of what can happen when there's a parliamentary system of government, when you fuse the legislative and executive power together and the advocates of parliamentary government in the United States overlook the fact that fusing legislative and executive power together can produce tyranny. It's worth noting that Adolf Hitler and the Nazi Party came to power because they won a German election in 1933 and Hitler was actually elected chancellor or prime minister of Germany. So Germany had a prime ministerial system, a parliamentary system, and Hitler was elected Prime Minister. There was an elderly general, General van Hindenburg, who was president of Germany, but he was not very active. Hitler had no trouble in turning the German democracy into a dictatorship, having won a parliamentary election. Benito Mussolini, in much the same way, came to power as a prime minister in Italy and then changed the electoral laws in Italy in such a way that his fascist party would never again lose an election. Essentially, he adopted a law that said so long as the fascists got a quarter of the vote, they would get over 55% of the seats in the legislature. So parliamentary government can devolve into dictatorship, just as presidential governments in Latin America and the Philippines and South Korea and Indonesia devolved into dictatorship and parliamentary government is therefore not a cure. Professor Ackerman has responded to that by saying that maybe the answer is not parliamentary government as it exists in the United Kingdom, but parliamentary government as it exists in the Federal Republic of Germany. And the answer to that is that the constitution of the Federal Republic of Germany is radically more like the US Constitution of 1789 than it is like the UK constitution. The German constitution, just to describe it briefly, sets up a two-house legislature, the lower house elected by the people, using proportional representation, and the upper house consisting of the governors or other chief ministers of the 16 German states, which are called Landers. In practice, most laws have to be passed by both houses, so this is a highly federal constitution with real bicameralism, something that Professor Ackerman also really dislikes. The lower house of the German legislature elects a chancellor of Germany and the chancellor of Germany runs a government, which the support of the lower house of parliament. There is, in addition, a separate constitutional court, which consists of 16 justices who sit in two senates of eight justices each. One of the senates hears structural constitutional cases. The other hears individual rights constitutional cases. And Germany, in addition to all of that, while it gives nearly total power to its national government, it provides that only the 16 Lander or state governments can execute national laws and adjudicate cases in trial courts and courts of appeals. So Professor Ackerman's admiration for the German system is noteworthy, but it's noteworthy because the German system actually has a system of checks and balances in it, it just happens to be a different system of checks and balances from the one that the US Constitution has. The checks and balances in the German constitution are real federalism, where the 16 Lander have real power and national government's power is limited, real bicameralism where the upper house has real power, and the one parliamentary part of the German system is that the lower house elects the prime minister or chancellor of Germany. And so that's a parliamentary aspect to the German system. The German system, however, also provides for proportional representation in electing people to the lower house and typically, under proportional representation, if a party gets about 43% of the vote, it's usually able to form a coalition government with other parties. Recently in Germany, proportional representation led to six political parties getting substantial portions of the vote and the only way that the German government was able to form a government under Angela Merkel after the recent German elections was for the conservative Christian Democratic Party, which Angela Merkel was the leader of, to ally itself with the Social Democratic Party, which had been the left-wing government prior to Merkel coming to power. This produced a grand coalition of conservatives and socialists and the chief opposition is a small party that got 13% of the vote, which is called the "AFD", Alternatives for Deutschland, or Germany. That party is a Neo-Nazi party. So the country that Professor Ackerman would have us emulate currently has a government of conservatives and socialist, with a Neo-Nazi party opposition. This is unhealthy because it is just in the nature of things that once a party has been in power for eight years or 12 years or 16 years, people will just get tired of it and they'll want to change. So one really needs to have two moderate parties competing with one another so that there's always and option for reasonable change. And in the United States, we have that because to win the presidency, one has to moderate one's positions enough to be either a moderate conservative or a moderate liberal, even Ronald Reagan and Barack Obama discovered that, somewhat to their chagrin. And so moderation is baked into the US constitutional system. In a country like Germany, however, where you have a conservative socialist government that can't agree on what to do and an opposition headed by Neo-Nazis, what's going to happen over time is that that opposition is going to get more and more votes. So I think the German alternative that Professor Ackerman admires is actually very dangerous and between Woodrow Wilson's advocacy of parliamentary government, the failure of parliamentary government in the United Kingdom, which has been spectacular, and the failures, frankly, of the German constitution in the last 20 years, I think strongly suggests that not only in the US Constitution the oldest constitution in the world, and not only is it the shortest constitution in the world, it's also the best constitution in the world. And it's the best constitution in the world because the US Constitution samples the popular will, not once every five years the way Britain does, but in three elections, held two years apart, over a six year cycle. And over that six year cycle, every two years, the House of Representatives is changed, every four years, the presidency is changed, and every six years, a senator comes up for re-election. So I describe the superiority of the American system of check and balances and separation of powers over the German or British system as being a little bit like the superiority of a tracking poll, like the Erasmus in presidential approval tracking poll, which samples people every three days and merges in as each day progresses, people from the prior two days. Tracking polls follow the changes in the popular will very closely. In contrast, the British and German systems, where there's only one election held every five years, is more like a one time only poll and so it doesn't follow popular opinion as closely. So I think the American constitutional system is not only more liberty-protecting and not only more wealth-enhancing than the German constitution, I think it's also more democratic than the German constitution because even though we vote in territorial districts and not for proportional representation, we all get to vote over a six year period of time for representatives, presidents, and senators. And I just think our constitutional system reflects the public will better than the German or British parliamentary alternatives. PUBLIUS: So the American structural Constitution, with its separation of powers, is unique. What about the part of the Constitution that deals with the rights of the citizens, like the Bill of Rights? Are the “structural” part and the “rights” part related in any meaningful way? STEVEN CALABRESI: Many constitutional law professors, when they teach an introductory course in constitutional law, divide the course into the structural constitution, which is said to be concerned with federalism and the separation of powers and which divides and allocates power among the three branches of the national government or between the national government and the states, many law professors divide that structural Constitution from what they call the "liberty protecting provisions of the constitution," which include of course the first amendment and the Bill of Rights, the 14th amendment, which applies the Bill of Rights against the states, and other individual rights-protecting parts of the constitution. This pedagogical division between the structural Constitution and the individual rights part of the Constitution would have struck James Madison and the framers as being absolutely absurd. The framers of the Constitution believed that the structural provisions setting up checks and balances and separating legislative, executive, and judicial power, and creating a democratic regime of the one, the few, and the many, the framers believed that all those structural provisions existed to protect individual rights and liberty and they thought that the separation of powers and federalism was just as important to protecting liberty as the First Amendment right to freedom of speech and of the press, or as are the rights that the 14th amendment protects from state legislation or state executive action. So I think it's a mistake to draw a sharp line between the structural Constitution and the individual liberties parts of the constitution. I think, in fact, the structural constitutional provisions are liberty-protecting and always have been and many of the clauses that are identified as being individual rights clauses, like freedom of speech and freedom of the press or freedom of religion, which are protected against congress by the First Amendment and protected against state incursions by the 14th Amendment. Those provisions are essential to our democratic structure because we couldn't have free elections and we couldn't maintain a democracy if we didn't protect freedom of speech and freedom of the press and the free exercise of religion. So while I understand the pedagogical desire to teach separately the structural material on separation of powers and federalism and the more individual rights material on the 14th Amendment and the First Amendment, in fact there is a common thread that runs through all these things and that interconnects them with on another. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript - Verbatim (for YouTube) Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Professor Steven G. Calabresi, the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law. He is Chairman of the Federalist Society's Board of Directors. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We know that the Founders formed a new government with 3 coequal branches - Legislative, Executive, and Judicial. Today we’re talking to Professor Steven Calabresi to learn about how and why the Founders chose this particular way to separate power. How does the unique structure of the American Constitution ultimately protect the rights of the people? When one reads the Constitution, the first thing one notices is the preamble. The second thing one notices is that Article 1 says that, "All legislative power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." And Article 2 begins by saying, "The executive power shall be vested in a president of the United States." And Article 3 begins by saying, "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish." Those three vesting clauses of Article 1, Article 2, and Article 3 recognize the separation of powers in the US Constitution. And the separation of powers is a deliberate effort by the framers building on the writings of Montesquieu, who published his Spirit of the Laws in 1748 or 1749. And Montesquieu argued that there should be a separation of legislative, executive, and judicial power for the same reason that the ancient philosophers thought there should be a mixed regime of the one, the few, and the many. Essentially, Montesquieu, like the ancient philosophers and like Lord Acton, was concerned with the idea that power corrupts and absolute power corrupts absolutely. And so he wanted there to be a separation of powers, so that there wouldn't be absolute power which would corrupt absolutely. And that's the underlying reason we have the separation of powers. Montesquieu was an enlightenment philosopher who rejected feudalism. So he realized in 1748 that hereditary monarchy and hereditary house of lords had no future. But he still wanted to preserve the separation of the mixed regime of the one, the few, and the many, which he thought the British had. And so he decided that instead of separating power among one person, a few people, and many people, power should be separated functionally with legislative power being given to one amity, in our Constitution, the Congress, which consists of two houses, executive power being given to one person, the president, who's subject to all sorts of checks and balances, and then judicial power being given to the Supreme Court and to the inferior courts Congress chooses to create. And Montesquieu hoped by this functional separation of powers to preserve liberty the way Aristotle, Polybius, Cicero, Saint Thomas, Aquinas, and Machiavelli all hoped that a division of power among the one, the few, and the many would preserve liberty under the British constitution. So that's the core animating idea of the separation of powers. There is an interesting thing, which is that while the framers endorse the separation of powers, in the vesting clauses of Article 1, Article 2, and Article 3, when one looks at the actual institutions that the Constitution creates, we find that they drew heavily on British antecedence and colonial antecedence. And so the United States, underneath its separation of powers, is also a democratic version of Britain's mixed regime. So for example, the executive power is vested in one president, and the president has many but not all the powers that King George III had. The power of the few, or the aristocracy, is vested in the Senate, which senators enjoy six-year terms and are all millionaires or multi-millionaires, and so they clearly are oligarchs or aristocrats, depending on what you think of the party in power at any given time. And Supreme Court justices, frankly, are aristocrats or oligarchs, whatever one thinks of them at any given point in time. So those elements of the American constitutional regime represent the power of the few. And then the House the Representatives is directly elected by the people and reflects the power of the many. But the framers did something ingenious to the British constitutional regime, which is they did it, and it was done actually over the course of decades by the American people after the American founding, so that today we the people elect the one president ourselves through the mechanism of the electoral college, which almost always gives victory to the popular vote winner. We the people directly elect US senators, who are among the few aristocrats. But it's the many who pick which of the few aristocrats get to be aristocrats. The president and the senate together pick Supreme Court justices. And the people make their wishes known on that in presidential and senatorial elections. And the many, in addition to picking the one and the few, and the one president and the few in the Senate and indirectly therefore the Supreme Court, the many also elect the House of Representatives and their state governments. So the United States is one of the most perfect democracies in the world in that almost every entity in the government is accountable in some way or another to the people. The power is divided, not only through the separation of legislative and judicial powers, but also among the one, the few, and the many who the people all get to elect at different staggered intervals of time. You’ve explained the benefits and the reasons that the Founders chose to separate power into the 3 branches. Have later generations agreed with this choice? Does the separation of powers actually prevent the government from accomplishing goals like social reform? Now, in terms of ideas for possible reforms of the structural constitution, the most common criticism that has been made of the US Constitution is one that was first advanced by Woodrow Wilson in 1880. And Woodrow Wilson, in 1880, became a huge admirer of parliamentary government, which by then had emerged in the United Kingdom. And the United Kingdom had two great parties: a conservative party led by Benjamin Disraeli and a liberal party led by Gladstone. Future president Woodrow Wilson, then political scientist Woodrow Wilson, thought that a parliamentary system, where there was no set of checks and balances, could better accomplish progressive reforms and he denounced the American system of checks and balances and separation of powers and federalism as having been adopted in Philadelphia essentially by rich men in order to protect their property from the masses. In one form or another, the Woodrow Wilson critique of the separation of powers and checks and balances has persisted down to the current day. In the 20th Century, the economist Charles Beard argued that the framers had been motivated by concern for the wealthy and concern over property. Forest McDonald conclusively proved that Charles Beard was wrong about that in a book called " We the People", which was published in the late 1950s. President Wilson, once he became President Wilson, became much fonder of presidential power at least and he began to think that maybe a very strong presidency, like the one exercised by Theodore Roosevelt or the one that he administered or the one that was administered by President Franklin D. Roosevelt, maybe a very strong presidency could accomplish the social justice reforms that otherwise checks and balances inhibited. This view remained popular among liberal constitutional reformers until the election in 1968 of President Richard M. Nixon, at which point the progressive constitutional reformers announced that we had an imperial presidency and that the president was too powerful and that we needed to strengthen the legislature. The question of whether or not a separately elected president and a separately elected House of Representatives and Senate was desirable was raised again by Lloyd Cutler, who was astonishingly a White House Counsel to Presidents Harry Truman, Jimmy Carter, and Bill Clinton, and therefore served in that role under three different presidents. And Lloyd Cutler argued in the late 1980s, that we should, at a minimum, eliminate the incompatibility clause and allow senators and congressmen to serve as cabinet secretaries. And happily, that idea has died out. The only significant academic opponent of separation of powers today is Professor Ackerman at Yale Law School. You mentioned that Woodrow Wilson thought that the British Parliamentary system was a much better alternative to the American system. How does the British system work differently than ours? Are there other parliamentary or constitutional governments that facially resemble the American system but work differently in practice? One problem that might be noted is what parliamentary government means in the United Kingdom today because usually the advocates of parliamentary government, like Woodrow Wilson, were also advocates of the UK's system of parliamentary government. In the United Kingdom today, acts of Parliament are still acts of the sovereign and there is no judicial review of acts of Parliament. That's because acts of Parliament are passed by the House of Commons and they go into effect whether or not agreed to by the House of Lords and the Monarch has, since 1839, always assented to any act of Parliament presented to him or her. So in the UK, there is today essentially a dictatorship of a majority of the House of Commons and there's no really meaningful alternative center of power. The House of Lords lacks legitimacy because it's not elected and British courts don't have the power of judicial review. Britain has usually, in the 20th Century, had a three party system; the conservative party, the labor party, and the liberal party. Margaret Thatcher, during her 12 years as Prime Minister, won three elections and each time, she earned 43% of the vote nationwide. So the way the British constitution worked under Thatcher was that she had total power to make even constitutional changes as a result of having received 43% of the vote in three elections, five years apart. She was eventually succeeded by Anthony Blair, Tony Blair, who in 1997, won a three party election against the conservative party and the liberal party, also receiving about 43% of the vote. Tony Blair, with this plurality victory of 43% of the vote, proceeded to make major constitutional changes to the English unwritten constitution. First of all, he devolved power to the Scottish Parliament and to a separate parliament in Wales and to a separate assembly in Northern Ireland and to a Mayor of the City of London. And these devolutions of power have turned out to be irreversible and have led to a significant independence movement in Scotland, which didn't exist prior to Blair. Tony Blair also passed a statute called the "Human Rights Act of 1998", by which he empowered British judges to interpret British statutes in light of the European Convention on Human Rights, which is a human rights convention that Britain signed in the 1950s and which is interpreted by a court that represents 48 countries, all of which are members of the Council of Europe, which includes the dictatorial Russian Federation. And that court, the European Court of Human Rights, sits in Strasbourg, France and interprets the European Convention on Human Rights. Tony Blair essentially made that European convention on Human Rights and that court's decisions into British law and directed British judges to interpret British law in light of the European Convention and in light of the European Court of Human Rights' decisions. Tony Blair also made a constitutional change by removing the voting power of about 700 members of the House of Lords, who were hereditary aristocrats. And he provided that the hereditary aristocrats could elect 92 members of the House of Lords, but they would otherwise no longer be members of the House of Lords. This is certainly a desirable move. I would never defend a hereditary House of Lords, but it's odd for a government that won one election with 43% of the vote to make a constitutional change of that kind. So these are all examples of what can happen when there's a parliamentary system of government, when you fuse the legislative and executive power together and the advocates of parliamentary government in the United States overlook the fact that fusing legislative and executive power together can produce tyranny. It's worth noting that Adolf Hitler and the Nazi Party came to power because they won a German election in 1933 and Hitler was actually elected chancellor or prime minister of Germany. So Germany had a prime ministerial system, a parliamentary system, and Hitler was elected Prime Minister. There was an elderly general, General van Hindenburg, who was president of Germany, but he was not very active. Hitler had no trouble in turning the German democracy into a dictatorship, having won a parliamentary election. Benito Mussolini, in much the same way, came to power as a prime minister in Italy and then changed the electoral laws in Italy in such a way that his fascist party would never again lose an election. Essentially, he adopted a law that said so long as the fascists got a quarter of the vote, they would get over 55% of the seats in the legislature. So parliamentary government can devolve into dictatorship, just as presidential governments in Latin America and the Philippines and South Korea and Indonesia devolved into dictatorship and parliamentary government is therefore not a cure. Professor Ackerman has responded to that by saying that maybe the answer is not parliamentary government as it exists in the United Kingdom, but parliamentary government as it exists in the Federal Republic of Germany. And the answer to that is that the constitution of the Federal Republic of Germany is radically more like the US Constitution of 1789 than it is like the UK constitution. The German constitution, just to describe it briefly, sets up a two-house legislature, the lower house elected by the people, using proportional representation, and the upper house consisting of the governors or other chief ministers of the 16 German states, which are called Landers. In practice, most laws have to be passed by both houses, so this is a highly federal constitution with real bicameralism, something that Professor Ackerman also really dislikes. The lower house of the German legislature elects a chancellor of Germany and the chancellor of Germany runs a government, which the support of the lower house of parliament. There is, in addition, a separate constitutional court, which consists of 16 justices who sit in two senates of eight justices each. One of the senates hears structural constitutional cases. The other hears individual rights constitutional cases. And Germany, in addition to all of that, while it gives nearly total power to its national government, it provides that only the 16 Lander or state governments can execute national laws and adjudicate cases in trial courts and courts of appeals. So Professor Ackerman's admiration for the German system is noteworthy, but it's noteworthy because the German system actually has a system of checks and balances in it, it just happens to be a different system of checks and balances from the one that the US Constitution has. The checks and balances in the German constitution are real federalism, where the 16 Lander have real power and national government's power is limited, real bicameralism where the upper house has real power, and the one parliamentary part of the German system is that the lower house elects the prime minister or chancellor of Germany. And so that's a parliamentary aspect to the German system. The German system, however, also provides for proportional representation in electing people to the lower house and typically, under proportional representation, if a party gets about 43% of the vote, it's usually able to form a coalition government with other parties. Recently in Germany, proportional representation led to six political parties getting substantial portions of the vote and the only way that the German government was able to form a government under Angela Merkel after the recent German elections was for the conservative Christian Democratic Party, which Angela Merkel was the leader of, to ally itself with the Social Democratic Party, which had been the left-wing government prior to Merkel coming to power. This produced a grand coalition of conservatives and socialists and the chief opposition is a small party that got 13% of the vote, which is called the "AFD", Alternatives for Deutschland, or Germany. That party is a Neo-Nazi party. So the country that Professor Ackerman would have us emulate currently has a government of conservatives and socialist, with a Neo-Nazi party opposition. This is unhealthy because it is just in the nature of things that once a party has been in power for eight years or 12 years or 16 years, people will just get tired of it and they'll want to change. So one really needs to have two moderate parties competing with one another so that there's always and option for reasonable change. And in the United States, we have that because to win the presidency, one has to moderate one's positions enough to be either a moderate conservative or a moderate liberal, even Ronald Reagan and Barack Obama discovered that, somewhat to their chagrin. And so moderation is baked into the US constitutional system. In a country like Germany, however, where you have a conservative socialist government that can't agree on what to do and an opposition headed by Neo-Nazis, what's going to happen over time is that that opposition is going to get more and more votes. So I think the German alternative that Professor Ackerman admires is actually very dangerous and between Woodrow Wilson's advocacy of parliamentary government, the failure of parliamentary government in the United Kingdom, which has been spectacular, and the failures, frankly, of the German constitution in the last 20 years, I think strongly suggests that not only in the US Constitution the oldest constitution in the world, and not only is it the shortest constitution in the world, it's also the best constitution in the world. And it's the best constitution in the world because the US Constitution samples the popular will, not once every five years the way Britain does, but in three elections, held two years apart, over a six year cycle. And over that six year cycle, every two years, the House of Representatives is changed, every four years, the presidency is changed, and every six years, a senator comes up for re-election. So I describe the superiority of the American system of check and balances and separation of powers over the German or British system as being a little bit like the superiority of a tracking poll, like the Erasmus in presidential approval tracking poll, which samples people every three days and merges in as each day progresses, people from the prior two days. Tracking polls follow the changes in the popular will very closely. In contrast, the British and German systems, where there's only one election held every five years, is more like a one time only poll and so it doesn't follow popular opinion as closely. So I think the American constitutional system is not only more liberty-protecting and not only more wealth-enhancing than the German constitution, I think it's also more democratic than the German constitution because even though we vote in territorial districts and not for proportional representation, we all get to vote over a six year period of time for representatives, presidents, and senators. And I just think our constitutional system reflects the public will better than the German or British parliamentary alternatives. So the American structural Constitution, with its separation of powers, is unique. What about the part of the Constitution that deals with the rights of the citizens, like the Bill of Rights? Are the “structural” part and the “rights” part related in any meaningful way? Many constitutional law professors, when they teach an introductory course in constitutional law, divide the course into the structural constitution, which is said to be concerned with federalism and the separation of powers and which divides and allocates power among the three branches of the national government or between the national government and the states, many law professors divide that structural Constitution from what they call the "liberty protecting provisions of the constitution," which include of course the first amendment and the Bill of Rights, the 14th amendment, which applies the Bill of Rights against the states, and other individual rights-protecting parts of the constitution. This pedagogical division between the structural Constitution and the individual rights part of the Constitution would have struck James Madison and the framers as being absolutely absurd. The framers of the Constitution believed that the structural provisions setting up checks and balances and separating legislative, executive, and judicial power, and creating a democratic regime of the one, the few, and the many, the framers believed that all those structural provisions existed to protect individual rights and liberty and they thought that the separation of powers and federalism was just as important to protecting liberty as the First Amendment right to freedom of speech and of the press, or as are the rights that the 14th amendment protects from state legislation or state executive action. So I think it's a mistake to draw a sharp line between the structural Constitution and the individual liberties parts of the constitution. I think, in fact, the structural constitutional provisions are liberty-protecting and always have been and many of the clauses that are identified as being individual rights clauses, like freedom of speech and freedom of the press or freedom of religion, which are protected against congress by the First Amendment and protected against state incursions by the 14th Amendment. Those provisions are essential to our democratic structure because we couldn't have free elections and we couldn't maintain a democracy if we didn't protect freedom of speech and freedom of the press and the free exercise of religion. So while I understand the pedagogical desire to teach separately the structural material on separation of powers and federalism and the more individual rights material on the 14th Amendment and the First Amendment, in fact there is a common thread that runs through all these things and that interconnects them with on another. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!