Academic journal article Northwestern University Law Review


Academic journal article Northwestern University Law Review


Article excerpt

Colloquy Essays


One of the central questions raised by comparative constitutional law is whether the American constitutional system is somehow different, or even exceptional, when compared to the systems of other countries. As Stephen Gardbaum has written, "even within the common framework of ... modern constitutional fundamentals, there is still a pervasive sense that the United States remains broadly exceptional or different."1 Whatever the veracity of this conventional wisdom as applied to the rest of the American system, it is undeniably true that the events that dominated the United States in the months after the election of Barack Obama on November 4, 2008 - the events related to the presidential transition - are a uniquely American drama.

The phenomenon of the transition between elected governments - a time where one political leader or party has already been elected but has not yet taken official power - is not unknown to the rest of the world, and seems specifically contemplated by the constitutions of other countries.2 What makes the American system unique, then, is not the existence of the transition period, but its significance. In the major constitutional regimes elsewhere, political parties more clearly identify their policy leaders even when not in power, and thus have a much smaller number of personnel decisions to make when transitioning to power.3 By contrast, American political parties do not clearly identify who their policy leaders are when they do not occupy the White House. Because ofthat, and because American Presidents have such a large number of political appointments to make, the transition period becomes a crucial moment for the new American President to coronate a select few political figures as the current and future political and policy leaders within his Administration, and therefore within his party. The contrast leads to a simple, but significant, difference: While political parties in other countries define their policy leaders permanently, American parties define their policy leaders in substantial part through a singular moment of high drama - the presidential transition.

Part I of this Essay discusses how political parties outside of the United States define the policy leaders of their parties. The process used by the world's other major constitutional democracies - a process that transpires even when a party is out of power and is only a minimal part of the transition to power - is called the "permanent" model of selecting the leaders of political parties. Part II then turns to the American regime, which this Essay calls the "presidential transition" model of political party leadership selection because this process is centered around the process of presidential transitions.


For anxious and long-suffering members of the Democratic Party, the calendar year 2008 was an exhilarating, but gradual, thrill. First came the competition between Hillary Clinton and Barack Obama for the Democratic Party nomination for President; then came the Denver Convention; and finally came the electricity among Democrats the night of the election, when Obama' s victory became certain. But if that was a gradual thrill, then the period following Obama 's election on November 4, 2008, leading up to the inauguration of President Obama on January 20, 2009, was more of a temporary rush. Aspiring Democratic policy leaders met with old friends and new allies by the dozens and hundreds every week, trying to position themselves for leading roles in the new Obama Administration and therefore within the Democratic Party for years to come. This rush of the American transition to power, then, is the feeling that comes with being a part of a sprint, and not a marathon.

If the presidential transition in the United States is a sprint, then the process of selecting the current and future political and policy leaders of the party in the other major constitutional democracies around the world is more of a marathon. …

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