History Today February 2010 | Volume: 60 Issue: 2 | Page 35-41 | Words: 3353 | Author: Prochaska, Frank

The View from Albion: Bagehot and the American Constitution

The English political journalist Walter Bagehot was one of the few contemporary commentators on either side of the Atlantic to grapple with the constitutional issues that lay behind the outbreak of the American Civil War. Frank Prochaska discusses his ideas.

American citizens treat their constitution like scripture. If the rhetoric of political campaigns and school textbooks are any guide, most US citizens believe, in words attributed to President Coolidge (1923-29), that ‘to live under the American Constitution is the greatest political privilege that was ever accorded to the human race’. Since its ratification by the original 13 states – Rhode Island being the last in 1790 – the world’s oldest written constitution has had few critics at home and many admirers abroad. Blessed by the Founding Fathers, it continues to be seen as a wellspring of good government, a beacon of freedom and the foundation stone of American exceptionalism. As President Obama observed soon after his election, ‘the values and ideas in those documents are not simply words written into ageing parchment; they are the bedrock of our liberty and our security’.

In the decades after the Founding Fathers, discussion of the constitution entered a period of complacency. America expanded, trade prospered and the Union, despite the divisions, held together. There was much muttering of the words of the ageing parchment, but the constitution’s failings became increasingly apparent after Andrew Jackson’s time, as the quality of American presidents deteriorated and tensions mounted between the northern and southern states.Yet there were no American successors to Alexander Hamilton or James Madison – no updated Federalist papers – to provide learned commentaries on the impending constitutional crisis brought about by the irreconcilable differences between the free and slaveholding states.

Enter the English man of letters Walter Bagehot (1826-77), an avid student of government and the greatest constitutional writer of his time. Calls for suffrage reform in Britain in the 1860s increased Bagehot’s fear of egalitarian democracy and prompted him to turn his mind to American government. ‘The greatest and best of presidential countries’ provided a parallel to Britain and a contrast between what he called the ‘presidential system’ and the ‘cabinet system’. A comparison between the two countries’ constitutions became a compelling theme in his political writings, not least in his masterpiece, The English Constitution (1867).

At the time, American critics thought his observations ‘weighty’ and ‘well considered’, if not always just. In our day,when rival priesthoods translate the constitution with literal exactitude or loose construction, Bagehot’s ‘wise chat’, as one reviewer called it, is worth revisiting. It is all the more relevant in an era undergoing another crisis in political affairs, when many Americans view their constitution by the light kindled at their own particular altars.

Bagehot believed the dead weight of a written document made sacred for want of a hereditary sovereign was an impediment to resilient, effective governance. No Englishman, he wrote,would be impressed with arguments that assumed that ‘the limited clauses of an old state-paper can provide for all coming cases, and for ever regulate the future’. His trenchant remarks on the American Constitution were born of wide-ranging reflections on political structure and the practical effects of government.

Bagehot never visited the United States though he admired its energy, pluck and respect for the law, which he took to be characteristically Anglo-Saxon. As a banker and financial journalist he had an interest in fiscal policy and the cotton trade. As a man who hated slavery, he had little sympathy for traditions of southern chivalry. But it was the effects of the Civil War on American politics that turned his mind to essential constitutional issues. ‘It is impossible,’ he wrote in 1861,‘not to observe that the whole mischief has been, not caused but painfully exacerbated by the unfortunate mixture of flexibility and inflexibility in the United States Constitution.’

Bagehot wrote over 30 articles on America in the 1860s. At the heart of these was an analysis of the ‘purely pernicious’ defects in the constitution. He singled out for blame the peculiarity in the American government of having a president elected for a set term but largely independent of the confidence of Congress. He was convinced that the slave states would not have reacted so violently, or unanimously, if a congressional defeat could have given them relief, as parliamentary defeat did in England. Clearly there was a momentous defect in the constitution, for at the time of its framing the Founding Fathers did not provide a remedy for dealing with slavery apart from the courts.

The more Bagehot studied the American constitution, the more enamoured he became of Britain’s unwritten one. For him, the sovereignty of an abstract, written document was harder to fathom than the sovereignty of a living monarch who disguised the complexities of the British government.An ancient but malleable British constitution was to his mind ‘like an old man who still wears with attached fondness clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered’. The ageing body under the dated clothes was all too apparent in the American constitution, which has ‘no elastic element, everything is rigid, specified, dated’. The difficulty in amending it was a singular defect:

Every alteration of it, however urgent or however trifling, must be sanctioned by a complicated proportion of States or legislatures ... The practical arguments and the legal disquisitions in America are often like those of trustees carrying out a misdrawn will – the sense of what they mean is good, but it can never be worked out fully or defended simply, so hampered is it by the old words of an odd testament.

An election poster for Abraham Lincoln 1864.

A woodsman at the helm

One of Bagehot’s principal objections was that presidential and congressional terms were for fixed periods. Electoral rigidity sapped the nation’s democratic vitality and left it unresponsive in an emergency.Moreover, the electorate, far removed from the law-making process, had little influence. Apart from the electing moment, ‘it has not the ballotbox before it; its virtue is gone, and it must wait till its instant of despotism again returns’. The long hiatus between elections and inaugurations, which has often frustrated American voters, added to the problem. Although the British constitution might strike many as absurd in theory, to Bagehot it was efficient in operation for it allowed shifts of opinion to change prime ministers without waiting for a fixed election. In a crisis, the British people could choose a new leader, changing ‘the pilot of the calm’ for ‘the pilot of the storm’. Since an election could be called at any time, the press and the voting public consequently paid close attention to the facts and debates and felt that their judgement had influence. On the other hand, the President of the United States is virtually irremovable. As Bagehot noted, ‘The Times has made many ministries’, but the Washington newspapers, ‘can no more remove a president during his term of place than The Times can remove a lord mayor during his year of office’. For Bagehot, such a politics was folly, for ‘the time when a sovereign power is most needed, you cannot find the supreme people’. The election of an obscure, untried backwoodsman in 1860 seemed to illustrate this very issue.

For Bagehot, a cardinal failing of the American government was that it lacked the simplicity provided by a single supreme authority, which the House of Commons provided in Britain. The framers of the American constitution created a system of ingenious devices, which simply ‘aggravated the calamities of their descendents’. The paper checks and balances and competing branches of government were to ensure that the state did not degenerate into tyranny, but they slowed down the process of government and, most damagingly, erected barriers between the executive and the legislature.

The American president reigned largely independent of Congress, but he was also isolated from congressional influence, which made him far more personally responsible for policies that needed occasional modification. Unlike the British prime minister, whose cabinet was drawn from elected officials, the president did not share responsibility with his parliament nor have to defend his policies before it:

Congress, being a quite unfit body for executive resolves, does nothing, and finally leaves everything to the President. But what is really wanted for the effective administration of a free country in times of excitement, is that the government should be in such connection with the people as to direct the national policy in harmony with their gradually forming convictions. For this purpose, the ruler must himself belong to the representative body.

Bagehot understated the role of Congress in shaping legislation, but he had a point in that the separation of the executive and legislative branches,which the Founding Fathers thought essential to a good government, had serious shortcomings. The exclusion of ministers from Congress resulted in cabinet officers being deprived of parliamentary careers.More often than not cabinet officers are called to serve the president without previous political experience and without political prospects.As he saw it, the lack of a political training for administrative statesmen led to the degeneration of public life.

Nor did the separation of powers enliven Congressional legislators, who, isolated from the executive, tended to resentment and antagonism. Their debates and votes could not depose a president and were thus ‘prologues without a play’:

To belong to a debating society adhering to an executive ... is not an object to stir a noble ambition, and is a position to encourage idleness. The members of a parliament excluded from office can never be comparable, much less equal, to those of a parliament not excluded from office. The presidential government, by its nature, divides political life into two halves, an executive half and a legislative half; and, by so dividing it, makes neither half worth a man having.

In Bagehot’s opinion, the constitutional separation of powers in a nation with competing sovereignties between the states and the federal government contributed mightily to the outbreak of the Civil War. He agreed with The Times in London, which observed in 1862 that the American crisis was emphatically ‘the battle of a constitution’ in which there was no self-interpreting power that could decide which reading was correct. There was a crucial flaw in the instrument itself, for at the time of its framing the Founding Fathers disagreed as to its meaning and spirit and the latent issue of slavery had been glossed over by compromise.When it was suggested that a written constitution presented the potentially dangerous consequences of rival interpretations, the framers assumed that the Supreme Court could settle all difficulties with its irresistible authority. To Bagehot, this was wishful thinking, for when such passions were aroused and such issues were at stake no judicial authority could resolve an extra-judicial matter beyond its competence.

An unfit instrument

Soon after the outbreak of the Civil War, Bagehot wrote an essay in the National Review entitled ‘The American Constitution at the Present Crisis’. He praised the document for fostering commerce, which made America a nation to watch. But it contained the seeds of national dissolution, for America’s stability depended on the voluntary union of the states. That the nation had survived given its inherent contradictions surprised him. He dismissed the notion that the constitution was a fit instrument to resolve differences of opinion over slavery. In his view it was a document born in a time of confusion, framed by pressing necessity between ‘two extreme plans for meeting that necessity’. An Englishman, he remarked, knows that all written documents ‘will fail utterly when applied to a state of things different from any which its authors ever imagined’.

As a ‘natural aristocrat’, Bagehot was sensitive to what he saw as the evils of Jacksonian democracy, and its consequence – ‘mob rule’. In his opinion, the constitution had created ‘an almost unmitigated ochlocracy’ (mob rule), in which the ‘half educated’ masses were ‘everywhere omnipotent’. Over time, their growing political power compounded the constitution’s failure to address the divisions between the states. For him, the masses intensified the tensions.He lamented America’s undeniable ‘vulgarity’ that displeased cultivated Europeans, but observed, in a revealing sentence, that should the American Union fall, it would be ‘little regretted by those whose race is akin,whose language is identical,whose weightiest opinions are on most subjects the same as theirs’.

Presidents of the United States were widely seen as ineffectual after Andrew Jackson,which did little to reassure Bagehot, who felt that American institutions and leaders had ‘degenerated frightfully’ by the time of the Civil War. To Bagehot, the process by which America elected its presidents was laughable. The candidates propelled by the British electoral system were household names, indeed ‘household ideas’. The unhappy history of the United States under President Buchanan (1857-61) suggested to him that it was ‘a singular defect in the working of the American constitution that it gave power at the decisive moment to those least likely to use that power well’.

To Bagehot, the rot started in the American primary campaigns, in which few cared little whether a man was fit for the job, preferring to dwell on his attractiveness as a candidate. He blamed the constitution as much as the voting public. The framers had been anxious to avoid momentary gusts of popular opinion but desired that the president be widely representative. Accordingly, they created the ‘farce’ of a ‘double election’, in the hope that the ‘electoral college’ would exercise discretion and provide a check on popular ignorance. The effect, in Bagehot’s mind, and to many other critics since, was to create futile complications that turned out to be woefully at odds with the constitution’s original design.

In reality, the ‘Electoral College’ exercises no choice: every member of it is selected by the primitive constituency because he will vote for a certain presidential candidate ... and he does nothing but vote accordingly.

In a nation split into disparate sections, each with its peculiar enmities and traditions, rivalry for the presidency becomes intense. Bagehot believed that in such a context, men running for office are bound to have said something that would offend some large constituency. As a result presidential elections can only be secured after long deliberation. In practice, each party caucus selects the most unexceptionable member available, typically a trimmer with little talent and commonplace views:

If a man of wit had devised a system specially adapted to bring to the head of affairs an incompetent man at a pressing crisis, it could not have devised one more fit.

Desperate measures

This was the system that in 1861 elected Lincoln, which, according to Bagehot, placed him in the most invidious position ever experienced by a politician. At the very moment when the state was collapsing, the president had to spend his precious energy turning out the friends of his predecessor and appointing friends of his administration. Bowed down by the minutiae of office, he had ‘the detestable necessity of deciding on the respective fitness of 5,000 men for 500 postmasters’ places’. At the time of emergency, the president ‘ought to be able to call to his aid a popular assembly, animated by all the feelings which a great crisis calls forth in a great people’. But Congress was elected years before when no such crisis existed,made up of men, many of them sworn enemies of the administration,who had different priorities. Given the constitutional separation of powers, Congress was useless as a partner and potentially dangerous as an opponent.

That the Union survived was a tribute to President Lincoln, whom Bagehot initially saw as the type of man who tended to emerge under the defective electoral system created by the constitution. In June 1861, Bagehot wrote that the President was

... a nearly unknown man – who has been little heard of – who has had little experience – who may have nerve and judgement, or may not have them – whose character, both moral and intellectual, is an unknown quantity – who must from his previous life and defective education, be wanting in the liberal acquirements and mental training which are the principal elements of an enlarged statesmanship.

Some years later, he observed that the notion of elevating

... a man of unknown smallness at a crisis of unknown greatness is to our minds ludicrous. Mr Lincoln, it is true, happened to be a man, if not of eminent ability, yet of eminent justness. ... But success in a lottery is not argument for lotteries.What were the chances against a person of Lincoln’s antecedents, elected as he was, proving to be what he was?

There was more than a trace of the Great Man theory underlying Bagehot’s constitutional views. In England, parliamentary government encouraged great men to rise to the surface. In America, the political culture discouraged men of talent, leaving the field to untested hacks. That Lincoln rose to the occasion was the exception that proved the rule. But if Bagehot dismissed the president as a nonentity at the beginning of the Civil War, he came to worship him by the end of it. His assassination in April 1865 came as a dreadful blow:

It is not merely that a great man has passed away, but he has disappeared at the very time when his special greatness seemed almost essential to the world, when his death would work the widest conceivable evil, when the chance of replacing him, even partially, approached nearest to zero. ...His death destroys one of the strongest guarantees for continued peace between his country and the external world.

To Bagehot, Lincoln triumphed over extraordinary difficulties by establishing a strong central government. The difficulties were manifold. Firstly, for reasons to do with federal corruption and states’ rights, the dislike of the American people for government in Washington had reached the level of ‘a quasi philosophical theory’. Secondly, the constitution created a federal system deliberately calculated to frustrate the exercise of central power. Thirdly, the constitution had ‘the moral weight of a religious document’ and was thus virtually impossible to alter. The combination of public sentiment and constitutional dogma guaranteed that government was unable to act decisively.

For Bagehot, weak presidencies were the natural result of a defective constitution, which was, it should be remembered, drafted before the formation of political parties in the America. It took a president of political genius to overcome the defects of the very constitution to which he swore an oath.

Happily for Bagehot, President Lincoln was so shrewd a politician that he provided a cure for the constipation of American politics. Lincoln combined such a degree of sagacity and sympathy that he attained a ‘vast moral authority’ that made ‘the hundred wheels of the Constitution move in one direction without exerting any physical force.’ In Lincoln, Bagehot found his ideal American ruler, an enlightened despot whose ‘dictatorship’ was excused by the extreme circumstances of the day:

We do not know in history such an example of the growth of a ruler in wisdom as was exhibited by Mr Lincoln ... A good but benevolent temporary despotism, wielded by a wise man, was the very instrument the wisest would have desired for the United States.

Lincoln was an uncrowned monarch: Bagehot described the presidency as ‘an unhereditary substitute’ for a king in The English Constitution. It is a curious feature of the American presidential system that while born out of revolution it still closely resembles that of England in 1776, with an executive-cum-head of state – reminiscent of George III – who is treated with much of the reverence that attends a sovereign. Meanwhile, the British political system has moved on, mixing constitutional monarchy with parliamentary government, with a ceremonial head of state separated from the executive prime minister.While the American president is now often regarded as ‘imperial’, the British prime minister is now the monarch in Britain, but without the ceremonial trappings that enlarge the presidency and shield it from the derision dished out in a parliamentary system.

Bagehot’s critical legacy

Bagehot’s critique of American government still resonates after a century and a half, if only because the constitution is still there, largely unchanged. But it was unduly severe, seen through an English lens and shaped by the exceptional circumstances of the Civil War. Since his writings, there have been increasingly powerful presidents who have tested the constitutional constraints on the executive. There have also been 17 constitutional amendments, though they have not much changed the structure of government. Britain has waned and the United States has replaced it as the world’s leading power. Just how much the ascendancy of America can be explained by its written constitution is moot. Americans have perhaps overrated its significance. Britain, after all, did quite well without one, though an elastic constitution did not prevent its decline.

For Bagehot, the Founding Fathers had been unwise to encumber the nation with a constitution so inelastic yet difficult to amend, which led to civil strife, political inertia and legal dissension. In his mind, constitutions were not simply about legality, stability and authority, but also about flexibility, form and aesthetics. The American constitution was inelegant to a man who admired structural coherence in government under a unified authority: this is why he saw such beauty in the biddable English constitution. Still, at the end of the Civil War, he applauded Americans for letting daylight in on the constitution by the abolition of slavery; and, despite their ‘vulgarity’, praised them for their ‘genius for politics’ in giving sway to Lincoln.

What would Bagehot think of President Obama, another Illinois lawyer who makes claims to be Lincoln’s heir? Can Obama, another ‘unknown man’ facing another ‘crisis of unknown greatness’, rise above the constitutional barriers that have hindered all but a handful of his predecessors? Can he negotiate the ‘aging parchment’ that he so admires, but which may impede his presidency? For Bagehot, Lincoln’s political wizardry confirmed that the ‘limited clauses of an old state-paper’ were neither adequate nor decisive in a crisis. As he discovered during the Civil War – and Americans will discover in time with President Obama – effective change may require a benevolent monarch creating and tapping a shifting public mood. When it has suited them, most of America’s more memorable presidents have disregarded the constitution they profess to revere.

Frank Prochaska teaches history at Yale University. His last book was The Eagle and the Crown: Americans and the British Monarchy (Yale 2008). He is currently working on a study of British writers on the American government.