Awhile back I
reviewed for
The American Conservative Francis Fukuyama's intended magnum opus
The Origins of Political Order, Volume I, a sort of unfunny
History of the World: Part I. He now has a new article in
The American Interest, presumably introducing volume II, on "
The Decay of American Political Institutions."
He contrasts unfavorably the judge and lawyer dominated American Constitutional system to the British parliamentary system where legislative and executive power are merged. I'm a patriotic American, but American idolization of the U.S. Constitution is overblown: After 225 years it has clearly proven a niche system in the global marketplace, with the British system being far more popular.
One reason is that the quality of members of the British parliament tends to be considerably higher than the quality of members of the House. Nineteenth Century Continental visitors to London and Washington DC were enthralled by the superb drama of a "crowded house" while their opinion of Congressmen wasn't all that different from that of Americans today.
By American standards, the British system seems, on paper, strikingly authoritarian -- "the smack of firm government" as PM Harold MacMillan promised -- with few checks and balances. To Fukuyama, a national security intellectual in the tradition of his mentor Samuel Huntington, but without Huntington's deep intellectual (and genealogical) devotion to the historic American people, that's a feature not a bug. The parliamentary system designed to Get Things Done is inherently more attractive to Fukuyama than the U.S. system designed to Check and Balance.
For example, the concept of federalism barely exists in England. If you can assemble a majority in parliament, you can tromp all over local government structures. For example, Margaret Thatcher got tired of being criticized by the leftist mayor of London so she abolished the job of mayor of London. In the tradition of Airstrip One, Edward Heath junked many of the ancient counties of England and replaced them with new local units his boys thought more efficient.
Now, the British have a culture where a lot of things are just not done, so this authoritarian aspect of their unwritten constitution isn't that apparent in practice. But still ...
On the other hand, it's not real clear how important these differences are. Fukuyama endorses the analysis of political economist Mancur Olson:
The late Mancur Olson emphasized the malign effects of interest group politics on economic growth and, ultimately, democracy in his 1982 book The Rise and Decline of Nations. Looking particularly at the long-term economic decline of Britain throughout the 20th century, he argued that democracies in times of peace and stability tend to accumulate ever-increasing numbers of interest groups that, instead of pursuing wealth-creating economic activities, make use of the political system to extract benefits, or rents, for themselves.
But Olson's example of the economic decline of Britain in the 1970s (and its subsequent revival) parallels the American experience at the same time, suggesting that structures perhaps matter less than ideas.
Here's an interesting passage:
One of the great turning points in 20th-century American history was the Supreme Court’s 1954 Brown v. Board of Education decision ...
So familiar is this heroic narrative to Americans that they seldom realize how peculiar it is. The primary mover in the Brown case was the National Association for the Advancement of Colored People (NAACP), a private voluntary association. The initiative had to come from private groups, of course, because state governments in the South were controlled by pro-segregation forces. The NAACP pressed the case on appeal all the way to the Supreme Court. What was arguably one of the most important changes in American public policy thus came about not because Congress, as the representative of the American people, voted for it but because private individuals litigated through the court system to change the rules.
(This example is more ambiguous than it sounds. Separate schools systems actually survived largely intact in much of the South for another 15 years, only being ended by the newly elected Nixon Administration, and that partially under the prodding of the courts. A decade and a half of rapid suburbanization between 1954 and 1969 gave many white parents a geographic buffer so desegregation wasn't as much of a shock as it would have been if the Warren Court had ordered instant desegregation in 1954. In 1968 Nixon carried Southern suburban precincts where modern corporate-oriented voters wanted to put all that Jim Crow stuff far behind them -- while Wallace carried white small town voters where distance wasn't an option, and Humphrey carried upland Southern districts with few blacks -- so the 1969 desegregation didn't hit Nixon voters too hard.)
Later developments, like the Civil Rights and Voting Rights Acts, were the result of congressional action, but even in these cases enforcement was carried out by courts at the behest of private parties.
No other liberal democracy proceeds in this fashion. All European countries have gone through similar changes to the legal status of racial and ethnic minorities, and women and gays in the second half of the 20th century. But in Britain, France or Germany, the same results have been achieved through a national justice ministry acting on behalf of a parliamentary majority. The legislative rule changes might well have been driven by public pressure, but they would have been carried out by the government itself, not by private parties acting in conjunction with the judiciary.
Actually, Fukuyama is overlooking the distinction between disparate treatment discrimination and disparate impact discrimination. Most other countries don't worry all that much about disparate impact, or at least haven't until decades after the Supreme Court's 1972
Griggs decision. Canada, for example, doesn't have affirmative action in college admissions. The last time I checked a couple of years ago, Oxford and Cambridge didn't have quotas and the failures of West Indian and Pakistani applicants were more or less a matter of indifference to them.
Brazil finally started collegiate affirmative action only about a decade ago. European countries seem more likely to have quotas for women (e.g., on Boards of Directors) than for ethnic minorities. This may slowly be starting to change under the sheer weight of demographic change and the American example. After the 2005 Car-Be-Ques outside Paris, Sarkozy talked about starting quotas for Muslims, for instance.
But, in general, Fukuyama's breezy assurance that "the same results have been achieved through a national justice ministry acting on behalf of a parliamentary majority" is quite misleading. He simply has a hard time keeping in his head the disparate treatment v. disparate impact distinction, which is hardly surprising. It's not something you are encouraged to think a lot about in modern America if you want a career as glittering as Fukuyama's.
The origins of the American approach lie in the historical sequence by which its three sets of institutions evolved. In France, Denmark and Germany, law came first, followed by a modern state, and only later by democracy. The pattern of development in the United States, by contrast, was one in which the tradition of English Common Law was embedded early on in the Thirteen Colonies, followed by democracy after independence, and only later by development of a modern state. Indeed, some have argued that the American state is Tudor in its basic structure, that arrangement having been frozen into its institutions at the time of the original American settlement.2 Whatever the reasons, the American state has always been weaker and less capable than its European or Asian counterparts. And note that distrust of government is not a conservative monopoly; many on the Left worry about the capture of national institutions by powerful corporate interests and prefer to achieve their desired policy outcomes by means of grassroots activism via the courts.
The result in post-civil rights movement America is what the legal scholar Robert A. Kagan labels a system of “adversarial legalism.” While lawyers have always played an outsized role in American public life, their role expanded dramatically during the turbulent years of social change in the 1960s and 1970s. ...
What makes this system so unwieldy is not the level of regulation as such, but the highly legalistic way in which it is pursued. ...
For example, Federal courts rewrote Title VII of the 1964 Civil Rights Act, “turning a weak law focusing primarily on intentional discrimination into a bold mandate to compensate for past discrimination.” Instead of providing a Federal bureaucracy with adequate enforcement power, “the key move of Republicans in the Senate . . . was to substantially privatize the prosecutorial function. They made private lawsuits the dominant mode of Title VII enforcement, creating an engine that would, in the years to come, produce levels of private enforcement litigation beyond their imagining.”3 Across the board, private enforcement cases grew from fewer than a hundred per year in the late 1960s to more than 22,000 by the late 1990s. Expenditures on lawyers increased six-fold during the same period. Not only did the direct costs of litigation soar; other, more indirect costs mounted due to the increasing slowness of the process and uncertainties as to outcomes.
Thus, conflicts that in Sweden or Japan would be solved through quiet consultations between interested parties through the bureaucracy are fought out through formal litigation in the American court system.
Well, the Japanese bureaucracy does indeed have a quiet system for solving discrimination: it doesn't let minorities who might be discriminated against into the country.
This has several unfortunate consequences for public administration, among them “uncertainty, procedural complexity, redundancy, lack of finality, [and] high transaction costs.”
For example, nobody has much of a clue how much America's War on Discrimination costs in terms of employee efficiency. There are multiple layers of obfuscation built into the system.
By estranging enforcement from the bureaucracy, the system also becomes far less accountable. In a European parliamentary system, a new rule or regulation promulgated by a bureaucracy is subject to scrutiny and debate, and can be changed through political action at the next election. In the United States, by contrast, policy is made piecemeal in a highly specialized and therefore non-transparent process by judges who are unelected and usually serve with lifetime tenure.
True ... but, let's consider Fukuyama's fundamental example of discrimination law. Enforcement has hardly been wholly privatized. The federal government has large staffs at the EEOC and the Department of Justice suing Americans (e.g., the Fire Department of New York case), often hand-in-glove with private interests or with political allies in local government. The fundamental problem with discrimination law in America is less the structure is suboptimal (although it is), but that a vast intellectual No Fly Zone has been erected over the area, with key facts relevant to policy making -- e.g., racial differences in average performance -- relegated to an epistemic purgatory the contents of which only Bad People know about.
Here's a good example of this ever-encroaching ignorance right from Fukuyama's article:
Dr. Fukuyama repeatedly emphasizes, with good reason, the importance of the civil service reform of 1883 that ended the federal patronage system. He mentions "civil service examinations" as a basic tool of modern good government. After all, civil service examinations are a backbone of the kind of efficient, effective, and strong government that Dr. Fukuyama prefers. Part of having a competent Executive branch, as Fukuyama wants, is hiring competent Executive branch employees.
Strikingly, Fukuyama doesn't seem to be aware, however, that the Carter Administration junked the new and extensively validated federal civil service examination in early January 1981 in the
Luevano discrimination lawsuit on the grounds that it had disparate impact on Hispanics and blacks. The Administration promised a new civil service examination on which non-Asian minorities wouldn't score lower while still accurately predicting who would be good hires. But it's been 32 years and somehow one has not yet been developed.
Thus, according to the
FAQ on Answers.USA.gov:
"Civil Service Exam -- There is no longer a single civil service exam to cover all government jobs. In addition, many jobs with the federal government no longer require written tests."
To middle aged guys like Fukuyama and me, the existence of a federal civil service exam sounds like a given -- I mean, why wouldn't they have one? But the younger generation can't remember it. And almost nobody remembers when or why it disappeared. For example, I'd never heard the
story until 2007.
Much evidence suggests that poorer hiring methods of federal bureaucrats have since led to poorer bureaucratic performance. Thus, a fair amount of the ability of the federal bureaucracy to get things done quickly and effectively has been sacrificed on the altar of disparate impact.
I bring this example up to suggest that 21st Century America has more fundamental problems besetting effective governance than just those mentioned by Dr. F.
A simple question is: What would disparate impact law look like in the U.S. under a parliamentary supremacy system favored by Fukuyama? Presumably, it would be simpler, but what would it be? How would it deal with the brute fact of disparate achievement? At this point, pundits usually retreat to "All we have to do is fix the schools" and similar inanities.
So, while I'm sympathetic to Fukuyama's critique of the sacred cow status of the Constitution in American thought, it's seems -- just from his own examples -- that a larger and much faster growing problem is the sacred cow status of the concept of diversity.
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