Academic journal article Northwestern University Law Review

Does Institutional Design Make a Difference?

Academic journal article Northwestern University Law Review

Does Institutional Design Make a Difference?

Article excerpt

ABSTRACT-This Essay argues that there are two unappreciated aspects of U.S. constitutional design that have contributed to our country's success. The first is the fact that the United States is divided into fifty rather than four states. This greatly strengthens the national government and renders secession almost impossible. The second is the formidable set of checks and balances set up on presidential power that makes it impossible for U.S. presidents to become dictators. The fact that thirty-nine of the fifty state governors are elected in off-year or midterm elections, elections in which the incumbent president's party almost always loses ground to the opposition, greatly limits U.S. presidential power.

INTRODUCTION

One of the greatest questions that hangs over political science and the legal academy is whether the institutional design of a constitutional democracy affects its success. I firmly believe that institutional design makes an important difference. Others argue that the effects of institutional design are dwarfed by the effects of linguistic, racial, and ethnic homogeneity; culture; religion; or poverty.

The chief skeptic of the institutional-design-makes-a-difference argument on the Northwestern Law faculty is my good friend and colleague Jide Nzelibe. Professor Nzelibe is acutely aware of how little institutional design has contributed to good governance in some constitutional democracies, such as Nigeria. Nigeria has an American-style constitution with separation of powers and federalism,1 but those institutional features are dwarfed by the division between Christians and Muslims and problems of corruption.2 If the U.S. Constitution is, as I think it is, an institutional success story, the Nigerian constitution stands as a reproach. The lack of crosscutting cleavages in Nigeria seems to trump an otherwise successful constitutional design.

Two distinctive features of American constitutionalism that have been much copied abroad are the U.S. systems of federalism and presidential separation of powers.3 The results have not been very encouraging. In otherwise stable western constitutional democracies such as Canada, the United Kingdom, and Spain, federalism has led to powerful separatist movements,4 and, as a result, the specter of secession hangs over those countries. The experience abroad with exports of U.S.-style presidential separation of powers has been, if anything, even worse. Many presidential separation of powers democracies in Latin America have at one time or another degenerated into an authoritarian system of one-man presidential rule,5 and the same thing has also happened in Russia, Indonesia, the Philippines, and South Korea.6 As a result, political scientists, advisers, and constitution writers today often weigh in against federal or separation of powers systems and in favor of unitary, parliamentary structures.7 Those unitary parliamentary structures, however, have also degenerated into authoritarian rule as in Japan and Italy prior to World War II.

In this Essay, I identify two key features of U.S. constitutional design that I think are integral to the success of U.S. federal and presidential separation of powers. These features, however, are not widely known and not widely copied when emerging democracies choose to write a constitution. In Part I, I focus on the facts that American federalism is characterized by a much larger number of state entities than exist in most federal regimes and that state boundary lines are drawn fairly arbitrarily, crosscutting regional, religious, and ethnic boundaries. In Part II, I highlight five features of the U.S. system of presidential separation of powers. These five features make American presidents much weaker than those in other presidential systems, such as France. The failures of presidential systems in other countries are largely due to their failure to copy aspects of U.S. constitutionalism that constrain our presidents. …

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