JANUARY 6: THE FUNDAMENTAL FLAW IN US POLITICAL STRUCTURE — IF CONGRESS FALLS, AMERICA FALLS (and what that means for Australia’s political structure and dreams of becoming a republic)
The events of the past few months and weeks have demonstrated beyond any doubt that the US is still a nation under development —the contrast between the instability/evolutionary nature of the US system and the comparative stability of Australia cannot be more stark. In Australia, while we will continue to grow and develop as a nation socially and culturally, our political system is fairly fixed. And though Australian republicans (that is, the growing body of Australians who would like to see Australia cut ties with the British throne) may not like to hear it, our ties to the British monarchy provide an added layer of political stability which in these chaotic and disturbing times offers a level of comfort most of us probably never expected we would need or seek. Arguably the greatest long term implication for Australia, given the current US political turmoil, is that Australian republicans may have to have to wait even longer for their dream of total independence to come true. In light of the American situation, we should not be cutting ties with Britain any time soon.
A counter argument (for example, see David Smith: https://theconversation.com/delighting-in-causing-complete-chaos-whats-behind-trump-supporters-brazen-storming-of-the-capitol-152808) could be that the US’s stability lies in The People, and its strength lies in its federal system. That is ostensibly correct, but the last four years under Donald Trump, and particularly the last few weeks, have shown the limits and dark recesses of the US system, especially in relation to Presidential power. Constitutions are essentially elastic documents—or perhaps, more correctly “plastic” documents—in that they are written to be built on (and therefore maintain a level of plasticity rather than necessarily stretching to fit), and most constitutions have not yet been fully tested. That said, the actual mechanisms of government and the powers of the Head of State are not usually up for debate to the extent that they are being scrutinised now in America.
In Australia, the question of the Sovereign’s right to interfere in Australian domestic politics arose after the sacking of Prime Minister Gough Whitlam and the removal of his government (with a caretaker government put in place) by the Governor General of Australia (the Queen’s representative) Sir John Kerr in November of 1975. While lawyers and scholars have long argued over the constitutionality of ‘The Dismissal’ as it’s known (see, inter alia: https://www.smh.com.au/politics/federal/the-dismissal-and-the-queen-an-historical-whodunnit-without-end-20201112-p56e6g.html), the 1975 dismissal is the only time an Australian government has been removed in this way since Australia attained nationhood in 1901. While there is evidence the Governor General had fairly lengthy communications with The Queen’s Private Secretary prior to taking action, it was the legal advice he received from the Chief Justice of the High Court of Australia that seemed to cement his decision. There are also doubts as to whether The Queen herself knew of the machinations, though the possibility of Her Majesty not being made aware of such a significant occurrence has been questioned by political historian Professor Jenny Hocking, who wrote The Palace Letters, after successfully suing the National Archives of Australia for access to the correspondence between Sir John Kerr and Buckingham Palace. (See the original ‘Kerr Palace Letters’ here: https://www.naa.gov.au/explore-collection/kerr-palace-letters#background)
Given the shockwaves sent across Australia (to this date) after the dismissal of the progressive (if not always popular) Whitlam government, the likelihood of such an event reoccurring is not high. There is a real argument that rather than overreach by the Sovereign, s64 of Australia’s Constitution was misinterpreted by the Chief Justice and that the Governor General acted on incorrect advice. S64 of Australia’s Constitution says, “The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General”. S62 establishes that the key phrase “Governor-General in Council” means the Governor General in consultation with the Executive Council, “There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth”. S63 of Australia’s Constitution specifically holds that “The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.” (See https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution)
This suggests that the Governor General’s reserve powers only extend to acting in consultation with the Executive Council (that is the Prime Minister along with the other minsters) and that the Governor General does not have the power to unilaterally dismiss a Prime Minister or a government. Rather than sacking Whitlam and the government, the Governor General could have had a discussion with the Executive Council and suggested (though even that might be construed as overreach) that the Prime Minister be removed by his party. Whether Kerr acted correctly or not has not been settled, and will certainly not be settled in this essay, but it is one of the bugbears of the Republican movement in Australia, and a major sticking point within Australian political and legal circles. Despite the overreach of Kerr and possibly the Palace, there are still benefits to holding onto a political system that is difficult to dismantle—even the constitutional crisis created by Whitlam’s dismissal barely touched Australia’s political structure. Once the Whitlam government had been dismissed and the caretaker government installed, an election was called, and while Whitlam’s party lost the election, the will of the people prevailed.
Even in Britain, despite the involvement (though increasingly ceremonial) of the British monarch, Parliamentary sovereignty in Britain is taken very seriously. “Interference” in public life or state or governmental matters by The Queen or other members of the Royal Family is not looked upon kindly by either the political classes or the press. Throughout the reign of Queen Elizabeth II, the Prime Minister of the day has had a weekly ‘audience’ with The Queen, where the events of the week and other issues are discussed. The Queen has pointed out many times that these meetings are opportunities for Prime Ministers to vent or unburden themselves with a “neutral” party (members of the British Royal Family also do not vote, though they do now pay tax). Over the years Prime Ministers have revealed that they’ve also sought advice from The Queen, who plays an important domestic and international diplomatic role for the British government.
The British tradition of political non-interference by the Crown goes back to the accession of William and Mary in 1689. William and Mary were a Dutch royal couple invited to reign jointly as the monarchs of England by English politicians under strict conditions. Their reign is often described as having been transitional—under William and Mary, England moved away from absolute monarchy towards an administrative state.
The reign of William and Mary saw the introduction of the British Bill of Rights which increased Parliament’s powers while severely curtailing the power of the monarch. The separation of roles, while not yet a strict separation of powers in the Australian sense, still divided up the powers of the monarch and the powers of Parliament. The Sovereign was not permitted to interfere with elections; parliamentarians were to be granted freedom to speak in Parliament (parliamentary privilege). The Sovereign was not allowed to gather a standing army without Parliament’s permission, the Sovereign’s finances were to be controlled by Parliament—and most importantly, the Sovereign was not permitted to overturn laws made by Parliament. (See the Bill of Rights [1688] ‘An Act declareing the Rights and Liberties of the Subject and Setleing the Succession of the Crowne’—for the full list: https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction) Even the British Royal Family goes to great pains (through its website) to explain the nature of the relationship between the Sovereign and the government (see https://www.royal.uk).
Despite the events of 1975 (and its understandable controversies and disquiet), the role of the British monarchy through the position of the Governor General in the Australian political system arguably provides an added layer of protection that would prevent the sort of chaos currently taking place in America.
In contrast to the strict separation of powers of the Australian system, or the careful power-sharing arrangement between Britain’s Parliament and Sovereign, the true separation of power (and subsequently check and balances on power) in the United States, is far more tenuous—especially when political leaders ignore or override the conventions that are the hallmark of a true functioning democracy. James Madison and the Founders of the United States, effectively dispensed with a true separation of powers doctrine in favour of a hazier “balancing of powers”. According to US legal scholar Philip B. Kurland, “The American founders were exceedingly worried about entrusting their national government with power over them. Government was a necessity; it was not a good. And any man was a frail reed on which to rest other men’s liberty (Kurland, 1986: 596).”
Kurland goes on to explain, “Separation of powers, whether describing executive, legislative, and judicial separation or the bicameral division of the legislature (the once distinct concepts now thoroughly blended), was simply a partitioning of political power, the creation of a plurality of discrete governmental elements, all detached from yet responsible to and controlled by the people, checking and balancing each other, preventing any one power from asserting itself too far. The libertarian doctrine of separation of powers was expanded and exalted by the Americans to the foremost position in their constitutionalism, premised on the belief, in John Dickinson’s words, that “government must never be lodged in a single body” (ibid). (See Kurland, 1986: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=11922&context=journal_articles)
And yet, despite creating separate bodies of power in the Unites States, true power under the US Constitution did end up becoming lodged in a single body—true power under the US Constitution is concentrated in Congress. It is Congress that has the power to impeach presidents, Congress that has the power to select and veto judges, Congress that has the power to appoint and impeach Supreme Court Justices, and Congress that appoints civil servants. Indeed, it is Congress that can, when it wishes, act like a “Star chamber” through its formation of committees—which have frequently throughout US History sought to defy the will of The People, and occasionally rained down terror as evidenced by the House Un-American Activities Committee that destroyed the lives of witnesses on whim.
As we have seen over the decades, political parties in the United States have little hesitation in obstructing the functions of government or holding democracy hostage when it suits their agenda to do so. And if Congress is tainted by corruption and special interests, then the rot spreads through the body of the US political and legal system.
In The Federalist №37, James Madison argued that it was “impossible sharply to delineate the different powers labeled legislative, executive, and judicial” (Kurland 1986: 597). “In №51”, Kurland explains, “he justified the melange as ‘so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.’ The result was a new conception of a balancing of powers…” (Kurland 1986: 598).
Had the American founders not taken that path, had they created a sharper delineation, some of the political crises America has faced—such as President Trump’s gross abuses of office and nightmarish overreach—could have been avoided. Unlike previous administrations, Trump’s actions were both sanctioned and supported by a Senate bent on misrule, and a Senate Majority Leader who would rather blow holes in any notions of a “balance of powers” in favour of an egregious quest to create as much imbalance as possible. The years of the Trump administration highlighted one major truth: whoever owns Congress, runs the United States—be they within the walls of the building as elected officials, or outside rioting in an attempt to overthrow an elected government—or indeed rogue jurists appointed to the Supreme Court engaging in politicking of their own rather than acting to “form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare”, as guardians of the Constitution.
Though the Australian Parliamentary system is a technical hybrid of Britain and America (“Washminster”), 800 years of a tried and tested parliamentary process is nothing to sneeze at, and given the tenuous state of democracy around the world, and the alarming increase of authoritarianism, stability must be a key factor in any decision regarding systemic change. Australians have their autonomy, but the very “apron strings” the Australian Republican movement laments are what keeps our ship from going under. Who is to say an Australian Head of State under a Republic would have either sufficient power to maintain a true separation of powers (such as in the Indian model, where the role is largely ceremonial)— or be given too much power by an overzealous parliament? As we’ve seen in the US, political parties do what suits them at the time rather than what is necessarily in the interests of the nation.
Now is not the time (if there ever is a time) to dispense with checks and balances. If anything, the connection should be strengthened and Australia should demand a greater role in the functioning of the Crown. Presumably post-Trump, Americans may seek to limit the powers of the presidential office, but given the symbiotic nature of their branches of government, what could they possibly do without pulling down the whole tent in the process?
In our rush to leave everything old behind, it’s important to keep the bits that work simply because they work. That isn’t to say that monarchy isn’t an inherently ridiculous idea, puffed up by ludicrous traditions, and littered with people of highly questionable merit and often little understanding of why they are even there. But that can be fixed. The monarchy can be modernised — in fact, it’s well known that the British Royal Family itself wishes to modernise but isn’t necessarily sure how to go about it. That is another discussion that requires serious consideration.
In the meantime, Australians and other democracy lovers should take heart—the US federal system, that is, the system of power sharing with the states—especially in the crucial area of the administration of elections—means that the centre will not collapse easily, because as David Smith (see above) argues, the true power of the United States is vested in the people. While it may take yet more time for American voters/citizens to fully appreciate their central role in government, the recent elections, including the Senate run-offs in Georgia suggest they are becoming aware of their power and exercising it; by and large, The People have stood firm — especially now that they have seen what is at stake.
Though most of us are watching the American drama play out with increasing anxiety (even my most politically disengaged friends are aghast), the best advice I can offer dear Reader is to take heart—and the long view—America’s story is still being written; despite the hype of American exceptionalism and ‘superpower’ status, it is still very much The New World.
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*This article has been slightly modified since its original publication to include the section on the modernisation of the British monarchy. That section was added on 16/01/2021. Additional discussion on Australia’s constitution was added in July 2022 for clarity.
*Photo credit: Tyler Merber 2021 (Creative Commons licence)
