Contemporary Western Political Democracies

Most modern constitutions clearly define who rules. Yet both the French and USA constitutions show a fudging of this essential requirement. What accounts for this, and which constitution is clearer in relation to power and ultimate decision making?






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Contemporary Western Political Democracies
Cynthia Barrow-Giles
Wednesday March 26th, 2013
In comparing the governments of the United States and France there are several discovered similarities. For example, both constitutions provide for the clear separation of powers and they share the same governmental structure with the division into three branches: executive, legislative and judicial. However, with separated institutional structures and a history of split-party control of the presidency and legislature these two countries can be commonly characterized as lacking clarity in relation to which institution/executive figure controls power. Critical to the analysis are the historical backgrounds upon which these two constitutions were framed. It is indicative that these framers did not anticipate the gridlock due to divided government or the plebiscitarian politics that accompany the modern presidential office. One could argue, due to the incredible duration of the 1787 constitution, the American constitution is clearer. However, in my opinion there are more facts to be examined before any thorough conclusion can be drawn.
The government of France is a semi-presidential system determined by the French Constitution of the Fifth Republic. Prior to this 1958 Constitution, France was marked by vast instability starting with the French Revolution. This Revolution was characterized by the abrupt break with the pattern that had gone before or the old pattern (ancient regime This system was hastily swept away by the Revolution in the name of rational uniform principles set out in the Declaration of the Rights of Man, passed on 26 August, 1789. This Declaration has made a significant impact on the political traditions of France forms an integral role in the current French constitution. Remnants of the divisions after the Revolution had great impact on the politics in the nineteenth century. For example, "the restoration of the monarchy in 1815 marked a brief ascendancy for this political tradition which was an important component of the 'Right' in French political life for much of the nineteenth century" (Stevens, 2003). David Thomson suggests that this 'anti-revolutionary' sentiment was compounded by a 'counter-revolutionary' current. He asserts, "Common to all forms was the blunting of some consequences of the Revolution by accepting and turning against them some of its other consequences and implications" (Thomson, 1969). The political cleavages which these would have symbolized continued even though the dynasties to which they were attached dwindled.
Blondel (1985) asserts that for a period of one hundred and fifty (150) years France had about twenty constitutions, with only one of which lasted for more than two decades. Blondel also notes that the Fifth Republic's predecessor only lasted for thirteen years and was marked by extreme and chronic governmental instability as 25 governments rose and fell during the history of the regime (Elgie, 1999). The current French government is a direct result of the political instability of the Fourth Republic. This Republic was undermined for most of its existence by the perception that it was unstable regime. Firstly, it featured issues in relation to the balance of power of institutions where there were attempts to limit the extent to which Parliament could control the government and force frequent changes. Secondly, there was the succession of coalition governments. Thirdly, there was the fragmented nature of the party system. These internal issues were further compounded by the traumatic process of decolonization, magnified by the Algerian hostilities of the 1950s. It was against this background and intending to facilitate more consistent political stability and a more authoritative government that, upon his ascension to power in France, General de Gaulle aimed to create a regime with institutions designed "to restore national unity, re-establish order in the State, and to give Governments the authority necessary to fulfill their functions" (McQuire, 2011). Hence, the motive for de Gaulle to create and establish a constitution that would be conducive to an environment where a strong and stable government could exist was quite clear.
The essence of the 1958 Constitution is twofold. Firstly, it establishes the conditions for a strong executive. In addition, within the executive it provides both the President and the Prime Minister with a set of constitutionality defined powers. However, this dual executive is severely complex to understand since the logical relationship between President and Prime Minister creates fudging. It is essentially one of the main reasons why Pickles (1960) viewed the subsequent constitution to emerge as very messy and unclear. The President of the Fifth Republic holds extensive powers. Popularly elected, the President is responsible and therefore responsive to the people, not the legislature. According to Article 5 of the constitution, it is the President who sees to it that the constitution is observed and guarantees the independence of the state. As stipulated in Article 15, the President is also the commander-in-chief of the armed forces. The President undoubtedly directs the state's foreign policy: he conducts the nation's diplomacy, negotiates and signs treaties, and can appoint ambassadors and receive foreign heads of state. Additionally, the president has a wide ranging appointive power, being able to appoint the Prime Minister, members of the Council of Ministers, members of several judiciary bodies, military officers, and political advisers (Article 13). Such appointive ability enables him to indirectly influence the political process, in that he can put political allies into positions of importance and power. Significantly, he has the power to sign bills and promulgate laws and decrees, to preside over cabinet sessions, and may send messages to the legislature. He therefore has considerable direct influence in the legislative process. His influence in the political process and over the legislature does not end there, however. Though he cannot veto bills, the President may ask parliament to re-examine all or a part of any bill he does not like. He may also submit to the Constitutional Council any act of parliament or treaty which is of doubtful constitutionality. Under Article 11 of the constitution, he may circumvent the legislative process completely by submitting directly to the public a referendum on any organic bill or any treaty requiring ratification. Still, to do this he must first get the advice and consent of his cabinet. The President is also invested with two other important and powerful abilities: he may dissolve the legislature, forcing a new election, and may, under Article 16 of the constitution, enact emergency powers which enable him to govern without the deliberative parliamentary process.
The prime minister is also a powerful political actor. The prime minister has a set of constitutional powers. In this respect, three articles are particularly important. Article 20 states that the government decides and directs the policy of the country, that it has the administration and the armed forces at its disposal and that it is accountable the lower house of the legislature, the National Assembly. Article 21 states that the prime minister has responsibility for government portfolio and the implementation of laws. Article 8 states that the prime minister has the right to make recommendation of names of government ministers to be appointed subject to the president's approval. The prime minister is therefore placed at the head of a government, the members of which he or she has chosen and which is collectively responsible for implementing public policy. In addition to these articles, the prime minister has a further set of powers in relation to parliament by virtue of being head of government. The prime minister has the right to issue decrees in the areas in which parliament is not permitted to legislate (Articles 21 and 37); to request an extraordinary session of parliament (Article 29), to initiate legislation (Article 39); to accelerate the legislative process (Article 38); and to call for a vote of confidence in the government (Article 49). The prime minister can also submit a bill to the Constitutional Council (Article 61) and can make various civilian and military appointments (Article 21). Although it is true that the Prime Minister is appointed by the President as it is usually at his discretion to choose whomever he wants. However, because the National Assembly has the power to force the resignation of the government he may have to choose a prime minister from another party (the choice of prime minister must reflect the majority in the Assembly).
The concept of cohabitation is an interesting situation within French politics. It is true that a President of the Republic holds most of the executive power and has the bulk of legislative power at his disposal when commanding a parliamentary majority. However, this situation changes when the President loses the support of the parliament and is forced to cohabit at the head of the executive despite being political adversaries. For the president, this intensifies the characteristic ambiguity of his role, as the 'president of all the French' who is also a party politician. To have any chance of retrieving his fortunes and winning a further presidential term, the president under cohabitation must be the clear leader of the opposition; yet he must also give prominence to his other role, defined by Article 5, as impartial guarantor of France's institutions. Despite the period of cohabitation which has occurred for only a total of nine years in the fifty six year survival of the Fifth Republic, one would assume that the French President has the edge. This falls on the basis of Article 68 where he is responsible for acts performed in the conduct of his office only in the case of high treason. This can only be done by an absolute majority of members of the two assemblies deciding in the same way. In contrast, members of the government are criminally liable for acts performed in the conduct of their offices, defined as crimes or misdemeanours. However, one must take into account the fact that presidential leadership is not secure. The Constitution of the Fifth Republic gives the President specific policy-making powers in only a few areas. Presidential leadership has occurred because Presidents take advantage of their appointment of the Prime Minister. Therefore, they appoint acquiescent Prime Ministers who have virtually no choice but to implement the President's policy programme.
In addition to the individual powers of the president and prime minister, there are certain powers which are quite explicitly shared between the two institutions which emphasize the ambiguous nature of the constitution in stating who holds the bulk of power. In this regard, with a few notable exceptions, the prime minister must countersign all presidential decisions (Article 19), which (in theory at least) gives the prime minister the right to veto all but a few presidential actions and which can be particularly important during periods of 'cohabitation'. In contrast, the president has to sign all decrees that are considered in the Council of Ministers (Article 13), which may restrict the role of the prime minister and can be potentially significant during periods of presidential/prime ministerial conflict. Furthermore, Article 21 states that the prime minister is responsible for national defense but Article 15 declares that the president is the head of the armed forces. Equally, even though the prime minister is at the head of a government, it is the president who chairs the Council of Ministers, the French equivalent of the cabinet (Article 9). Finally, the president can call a referendum on any bill but only on the proposition of the government collectively (Article 11) or the Prime Minister personally (Article 89). The determining factor to resolve the ambiguity lies within the outcome of the election. If there is undivided government then Presidential leadership is possible. Nonetheless, the confused distribution of power inhibits any real clarity as the Constitution gives considerable power to both the Prime Minister and the President which mostly encompass and overlapping feature. As Elgie (1999) puts it: "The overlap between presidential and prime ministerial powers is so great that there is ample scope for either institution to control the policy-making process when the necessary conditions are in place, and for both institutions to fight for control when they are not."
The American constitution as we know it today was framed under stringent conditions where there were many factors to consider with little time to do so. Americans were overwhelmingly concerned with the preservation of liberty and the restraints on all features which would have facilitated despotic government. The framers were especially particularly influenced by the impact of their colonial experience with Britain and The French Revolution. The 1787 constitution included the features of: an Executive with the power to act directly upon individuals, a central (federal) government which comprised an institutionally separated Executive, Legislature, and Judiciary, in a federal system. The States delegated specific powers to the central government but retained substantial powers over their own affairs. The constitution reflected a belief in the separation of powers theory as well as checks and balances to divide power so as to prevent the tyranny of one man or many. This was done to limit but not undermine and retard the power of the various branches of government. According to Bowles (1998), "The Federal Constitution's ambiguities, uncertainties, and intrinsically disputatious provisions have lent it a flexibility that has been enabled to survive, by ensuring its legitimacy in a heterogeneous society subject to repeated demographic shocks of migration and immigration. However, he further states that it has also "ensured that agreement on the meaning of its provisions for relations between branches of Federal government, between the Federal and State authorities, and for conflicts between competing rights of individuals resist definitive settlements."
The separation of the executive from the legislature is essentially the fundamental principle of the American political system. The separation was set out for the president to be elected by an Electoral College that would remove the choice of this official from mob politics. The congress was divided into a House of Representatives which gave equal representation to the States and the judicial power was to be vested in a Supreme Court. Therefore, no member of the legislature is allowed to be a member of the executive branch with the exception of the vice president. However, the founding fathers were not satisfied that this alone would be a sufficient check to the abuse of power in the legislature. The framers had witnessed the American states during and after the Revolution which the state legislatures had interfered in executive and judicial affairs and there was nothing to prevent them from doing so. Therefore, the founders instituted a number of checks to the exercise of power. The president was given limited power to veto legislation and the Supreme Court would interpret the laws and the constitution, although the latter power was implicit rather than in the constitution. The President therefore lacks direct power over the legislators. Also, the Constitution grants powers over foreign affairs, defence, monetary policy and the regulation of commerce between the states to Congress. The limits of the veto power are evident as they provided that the president's legislative veto could be overridden by a two thirds majority of both Houses of Congress. Thus, they erected the structure of government in such a way that no single part could of itself exercise supreme power.
Michael Parenti(1988) suggests that Congress appears to have the bulk of power: "By all appearances then it is congress that determines policy and lays down the law and it is the president which does the congress bidding." However, in practice the President is far more powerful than in theory. Parenti suggests this is because of the demands of running a complex, administrative capitalist state. Under Article 2 of the constitution: The Executive power of the Federal government is vested in the President. The President has the power to appoint (Cabinet Members, Justices of the Supreme Court). The President has the power to guide the Congress in its law making function, therefore he is chief legislator. The President has the power to make treaties with foreign nations, with the advice and consent of two-thirds of the Senate. The President is also Commander-in-Chief of the armed forces of the United States. One must understand that the traditional President has been modernized, and in do so the President has increasingly gained tremendous power particularly in national economic policy and the direction of foreign and defence policies. An example of this is shown distinctly in the War Time Act of 1974 which expanded presidential power by requiring the president to seek the approval of Congress within sixty days for any war he has launched. Parenti notes that in doing so, Congress succeeded in increasing presidential power thus contributing to its own marginalization in relation to declaration of war. Also, the foreign assistance act of 1961 also empowers the president to commit the CIA overseas in times of national emergency without the approval of Congress. In addition, the President has gained increasing power over the control of policy making given the determination of the budget. The president can refuse to spend money which the congress votes; this is known as impoundment.
There are two specific mechanisms of persuasive power which the President has that significantly propels the chief executive in a separated system not conducive to strong presidential leadership: the use of the executive order and the use of veto politics by the president. According to Kenneth Mayer (1999), an executive order is a presidential directive that draws on the President's unique legal authority to require or authorize some action within the executive branch. With restrictions established by political, organizational and legal laws the President enjoys substantial latitude in exercising prerogative power and official privileges such as the executive order. For example, George W. Bush in 2001 turned overturned a key order of his predecessor Bill Clinton by implementing a ban on aid to international family planning organisations. Also, on September 25, 2001 Bush used Executive Order 13224 to combat the national crisis created on September 11 of that same year by freezing the assets of terrorist groups. To further effectively deal with the national crisis of the time he used: Executive Order 13228 (October 10, 2001) to redefine the scope of airline security and established the Office of Homeland Security within the Executive Office of the President; and Military Order (November 13, 2001) which authorised military tribunals for trials of suspected terrorists. This obliterated the previous calculus of presidential power (Mayer & Price, 2002).
. Spitzer (1988) describes the veto power as the "touchstone" of the American presidency. The use of the veto is related to opposition has the dominant amount of seating in Congress. American presidents may veto or threaten to veto legislation for a number of reasons. Firstly, they may seek to completely remove the bill. A majority opposition that is unwilling to compromise on policy details and cannot muster a two-thirds majority might simply be persuaded to drop the proposal altogether following a veto threat (Conley, 2004). Secondly, presidents may threaten to veto bills in order to gain some proposal power through the opposition. Since a president cannot feasibly threaten to veto any bill he prefers to the status quo, a veto threat signals how legislation must be altered to meet his demands. The congressional majority must then decide how far to compromise without provoking a veto that the leadership may or may not be able to override (Conley, 2004). Scholars have constructed several formal models to explain veto bargaining between the branches. There has been the "commitment model" and the "coordination model" (Ingberman &Yao, 1991) The central assumption is that both the president and the congressional majority are interested in passing laws. With this essential power the President is constitutionally equipped to defend himself in the advent of majority opposition. This trend of divided government which has become a major trend in American politics facilitates deadlock and gridlock. The constitutional strengthening of the President has allowed him to weaken any potential difficulty and thus the American system has been lauded for its incremental success. However, Sartori (1997) contends; "the fact that the American political system has long coped with its problem of divided government does not detract from the fact that a divided power structure engineers paralysis and stalemates better than any other."
Split-party control of the executive and legislature is a condition that has occurred six out of every ten years in the post-War era in the United States. As mentioned before, American presidents retain significantly more direct leverage over lawmaking. The veto power enables them to obstruct passage of laws with which they disagree, force compromise, or utilize veto threats to regain some agenda-setting control over Congress. This reality has led David Mayhew to believe that divided government does not influence decisive policy shifts. Mayhew (1991) make two major contentions: legislative success is not determined by unified or divided government, and divided control does not lead to more significant instances of congressional investigation/harassment of the executive. Withal, veto politics, often in conjunction with bicameral procedural differences, may also prompt the president and the congressional majority to "strategically disagree" because one, the other, or both believe it is better to "have" an issue than resolve it. The president or the congressional majority is convinced that policy stalemate may yield electoral advantages (Conley, 2004). Given this reality, Gregory Thorson argues that divided government plays a significant role in the legislative process where coalition formation is possible. Thorson (1998) asserts his research "lends some credibility to one aspect of Fiorina's theory that the electorate chooses to balance two ideologically extreme parties by granting power to one party in Congress and the other in the presidency. By denying one party control of both branches, the electorate denies either of the parties the ability to pass its partisan legislation." As a result the two branches resort to the "blame-game" and plebiscitarian politics which have come to characterize the nature of American politics.
In my opinion the constitution which more clearly defines who rules, lies with the one that is more distinct in the allocation of powers. The American constitution provides such that the powers of each branch of government are clear-cut. There are numerous checks and balances which each branch holds on the other which create great confusion within the system; one could ask which branch holds the most effective check? Additionally, federalism in the United States further confuses executive power as there is constant tug-of-war for power. Though the national government and the states continue to work cooperatively toward common goals, the struggle for power continues with the Supreme Court often serving as the referee in a number of significant legal cases over the past fifteen years. However, the major deterrent of the French constitution is that it gives power with and under condition. The element of cohabitation cannot be ignored despite its scarce occurrence. The existence of it alone presents the potential to discredit the President's power which further illustrates the issue of conditionality. One could argue that the President of the US faces the same issue of divided government. However, with the modernization of presidency the President has gained tremendous power; a luxury the French President does not have at his disposal in periods of cohabitation. Furthermore, the insecurity of leadership lies within the overlapping nature of duties within the dual executive. The ambiguities of the constitution are too numerous to answer who holds the bulk of power as both executives have considerable amounts of power. The ambiguity is seemingly resolved depending on the outcome of the elections but again this propels the conditionality clause.
In conclusion, the fudging of the American system can be attributed to the separation of powers, the check and balances system and federalism which results in shared power. In the French constitution the fudging is accounted for by shared government which can found in their twin head executive due to their history of instability and compromises. The increasing power of the American President has allowed this executive to be a more clear-cut ruler than in the French. However, the question begs: Is the tyranny of one, which the founding fathers of the American constitution tried to avoid, increasingly becoming a possibility?

















Bibliography
Blondel, J. (1985). Government Ministers in the Contemporary World (Political Executives in Comparative Perspective). SAGE Publications.
Bowles, N. (1998). Government and Politics of the United States: Second Edition. New York: Palgrave Macmillan.
Conley, R. (2004). Presidential Republics and Divided Government:Comparing Lawmaking and Executive Politics in the US and France.
Elgie, R. (1999). Semi-Presidentialism in Europe. New York: Oxford University Press.
Ingberman, D. E. (1991). Presidential Commitment and the Veto. American Journal of Political Science: Vol. 35, 357-389.
Mayer, K. (1999). Executive Orders and Presidential Power. Journal of Politics , 445-466.
Mayer, K. R., & Price, K. (2002). Unilateral Presidential Powers: Significant Executive Orders, 1949-99. Presidential Studies Quarterly: Vol. 32 Issue 2, 367-386.
Mayhew, D. (1991). Divided We Govern: Party Control, Lawmaking and Investigations, 1946-2002. Yale University Press.
McQuire, K. A. (2011). President-Prime Minister Relations, Party Systems, and Democratic Stability in Semi-Presidential Regimes: Comparing the French and Russian Models. Texas International Law Journal: Vol. 47 Issue. 2, 427-454.
Parenti, M. (1988). Democracy for the Few. St. Martin's Press.
Pickles, D. (1960). The Fifth French Republic. Praeger.
Sartori, G. (1997). Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes: Second Edition. Macmillan Press.
Spitzer, R. J. (1988). The Presidential Veto : Touchstone of the American Presidency. Albany: SUNY Press.
Stevens, A. (2003). Government and Politics of France: Third Edition. New York: Palgrave Macmillan.
Thomson, D. (1969). Democracy in France Since 1870: Fifth Edition. Oxford: Oxford University Press.
Thorson, G. (1998). Divided Government and the Passage of Partisan Legislation, 1947-1990. Political Research Quarterly. Vol. 51, Issue: 3, 751+.


















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