Yesterday I wrote a post about Judge Posner’s review of Akhil Amar’s new book. In one part, I took some exception to Judge Posner’s analogy of the American system of government to the British system.
In his review, Judge Posner notes that the American system of government was closely modeled on the aristocratic British model.
Amar seems oblivious, moreover, to how closely the Constitution of 1787 tracked Britain’s less than democratic eighteenth-century governmental system. Although there are many differences, the U.S. Constitution allocates the traditional powers of the English monarch—such as enforcing the laws, appointing high officials, commanding the armed forces, conducting diplomacy, and pardoning—to the president. It allocates the essential powers of the House of Commons to the House of Representatives, and of the House of Lords to the Senate, and it models the federal judiciary on the British judiciary. Under the Constitution of 1787, only the House of Representatives was to be popularly elected, underscoring the resemblance of the House of Representatives to the House of Commons, and like the House of Commons the suffrage was limited. Senators were to be appointed by state legislatures, and the president and vice president were to be elected not by the “People” but by an electoral college whose members were selected by state legislatures. The Senate was radically malapportioned. Judges were appointed, and for life. All officials of the executive branch, other than the president and vice president, were appointed rather than being elected whether directly or indirectly.
I offered this rejoinder:
I’ll quibble with this a bit. Britain in 1776 was ruled by a divine absolute monarch. The United States was governed by a President who was subject to Congress’s powers, and was elected by an electoral college to four year terms. These aren’t even in the same ball park. Further, Senators elected by state legislators with six-year terms are a far cry from the aristocratic lords. Also, the notion of a single Supreme Court was a novelty. The UK only created a true Supreme Court of its own a few years ago.
I quote from the lecture notes of Justice Harlan, who marveled at the Constitution, and the “providential” nature of our system of government.
When discussing the uniqueness of the United States Supreme Court, Harlan queried “[w]here the thought originated of one Supreme Court, I do not know. They certainly did not borrow it from any country on the earth . . . It seems to have come providentially into this instrument.” JMH Lecture [Lecture 19] (March 5, 1898).
Today, I had the good surprise to see that Judge Posner wrote to me to tell me that he enjoyed my post, and offered a brief response:
Dear Professor Blackman,
Permit me to quibble with your quibble.
You write: “I’ll quibble with this a bit. Britain in 1776 was ruled by a divine absolute monarch. The United States was governed by a President who was subject to Congress’s powers, and was elected by an electoral college to four year terms. These aren’t even in the same ball park. Further, Senators elected by state legislators with six-year terms are a far cry from the aristocratic lords. Also, the notion of a single Supreme Court was a novelty. The UK only created a true Supreme Court of its own a few years ago.”
The King of England in 1776 (which by the way was 11 years before the Constitution was drafted) was not an absolute monarch. England hadn’t had an absolute monarch since Henry VIII. Especially after the English Bill of Rights of 1689 England was a constitutional monarchy. He shared power with Parliament. The Supreme Court was a novelty but not a democratic novelty. You’re correct of course that the U.S. didn’t have an aristocracy; titles of nobility were forbidden. But it had an elite, and the heavy reliance on indirect rather than direct election was calculated to preserve the influence of the elite.
Judge Posner, I stand corrected. The King was not an absolute monarch in 1776, or in 1787, though his powers far exceeded anything ever attributed to the United States President. And for sure, the Senate was viewed as a means for the elite to keep a check on the populace–what Washington allegedly told Jefferson was a “senatorial saucer.” Though, as you note, these elites were not empowered by titles of nobility, which were unconstitutional.
As for the novelty of the Supreme Court, a brief anecdote in reply. What made the timing of this email perhaps even fortuitous, was that I received it while waiting on line to tour Independence Hall, the birthplace of our Declaration of Independence and the Constitution. During my tour of the original Philadelphia City Hall, which served as the Supreme Court chamber from 1791-1800, my mom asked me–and no I didn’t prompt it–where did the idea of a single Supreme Court come from?
I answered her in a way that would make Justice John Marshall Harlan proud: “providence.”