The Perennial Problem of Executive Power

From the American Republic’s beginning, the scope and limits of executive power have been fiercely debated. Whether the topic is immigration or war, the executive branch’s powers are invariably central to the discussion. In more recent times, some conservatives have argued for a full-throttled expansion of executive power to promote a capacious conception of the common good.

The perpetual tension that characterizes executive power is between its essential nature and the need to restrain its actions. No political society can exist without an entity capable of acting decisively and sometimes quickly. This entity needs considerable latitude if it is to act effectively. The fear is that this leeway can easily open the door to tyranny and the rule of men rather than of law. Conversely, a weak executive can provoke overcorrections in the form of strong men, who arise to answer people’s demand for an executive that can address immediate problems.

This particular dynamic emerged during the French Revolution. Deeply suspicious of a strong executive because of its association with Bourbon absolutism, large segments of revolutionary opinion sought to reduce the executive power to a cipher. Such was the spirit that informed France’s written Constitution of 1791. This tried to focus decision-making as far as possible upon the legislature. Eight years later—after terror, political upheaval, and endless instability—France found itself reverting, not to a king, but to a First Consul—Napoleon Bonaparte—who steadily centralized power in his person, gradually marginalized the legislature, and eventually declared himself Emperor.

One figure who studied the challenges surrounding executive power in the context of the French Revolution was Jacques Necker, most well-known as the finance minister of Louis XVI. His efforts to restore economic sanity to a France on the brink of financial Armageddon led to the calling of the Estates General in 1789. Necker’s dismissal as finance minister on July 11, 1789, was a catalyst for the storming of the Bastille three days later.

Necker was a classic outsider-made-good in Bourbon France. But his status as a middle-class Swiss Protestant banker, combined with his immersion in the world of ideas—ranging from theology to economics—also meant that Necker brought a unique perspective to bear on constitutional issues that the Revolution raised.

This is apparent from one of Necker’s most important books. Published in two volumes in 1792, On Executive Power in Great States was translated into English that same year before being largely forgotten. A newly revised edition of the book was recently published by Liberty Fund and edited by the political scientist Aurelian Craiutu. Not only is the book full of Necker’s observations about the events of his time; it contains a sharp analysis of the complexities surrounding the constitutional treatment of executive power.

History and Principles

When On Executive Power first appeared, it pleased neither diehard royalists nor radical revolutionaries. The former remembered and resented Necker’s economic reform efforts under Louis XVI. But much of On Executive Power is a perceptive critique of the 1791 Constitution and of the blind spots of the Constituent Assembly that drafted it. This put Necker at odds with most revolutionaries, especially those who detested Necker at this point because of his loyalty to Louis XVI.

Necker took a Burkean view of the revolutionaries’ passion for tearing down institutions and replacing them with abstractions. This mindset, he stressed, underlay the revolutionaries’ approach to executive power. They envisioned the executive branch as a blind and unthinking implementer of a Rousseauian General Will incarnated in a single-chamber legislature. That commitment, Necker believed, had blinded them to the truth that, while France needed an executive limited in its powers, the same executive required “energy,” to use Alexander Hamilton’s expression, to be effective. This implied allowing it considerable independence of action.

Achieving that goal could only be realized, Necker contended, by establishing a balance of powers. By this, he did not mean a rigid separation of powers. Instead, both the executive and legislative branches should exercise executive and legislative responsibilities. This required establishing effective and formal links between the two branches. The objective was to force them to work together, while also allowing them to check each other.

An example of what Necker had in mind was the British practice whereby ministers of the Crown were usually also members of the House of Lords or House of Commons. The executive and the legislature were thus distinct but intermingled, meaning that they often found themselves performing both executive and legislative functions. This state of affairs also relied on acceptance of the idea of a mixed sovereignty (the King-in-Parliament) rather than a raw popular sovereignty. The latter, Necker insisted, could only be an abstraction in countries with large populations like Britain or France.

France’s Constituent Assembly was having none of this. According to Necker, it “declared the executive to vest in the chief magistrate but it neglected to grant to the depositary of that power the requisite means for enforcing obedience.” This was because the 1791 Constitution’s drafters regarded the executive’s head—i.e., the king—as “a rival” to a legislature devoted to liberty and equality. Hence the 1791 Constitution established a very strong Assembly, albeit one subject to elections every two years, alongside an enfeebled executive “without prerogatives, without the means of effecting either good or ill.”

However strong his critiques of the Revolution’s constitutional innovations were, Necker was no ancien régime apologist. He understood all the problems of over-mighty executives from his long service on “the inside” of Bourbon France. They created numerous opportunities for arbitrary power, facilitated corruption, and generated expectations that could never be met. Necker’s grasp of Bourbon absolutism’s dysfunctional nature made it all the more significant that he went on to stress that, while ancien régime monarchs enjoyed “a union of powers,” their exercise of executive and legislative responsibilities had been limited in practice by “public opinion, the influence of manners, the opposition of parliaments, the rights of provinces, and . . . the enlightened resistance of provincial administrations.”

The Revolution swept away this political, cultural, and legal tapestry, viewing it as a potential impediment to the instantiation of the General Will. Instead the revolutionaries established a legislature that had no constitutional obligation to engage with those who were responsible for implementing its decrees, and that was inclined to view other sources of authority as threats to liberty and equality. By contrast, Necker regarded the customs and conventions that shaped any regime’s everyday functioning as extremely important. This was one reason why Necker urged France not to trust those he called “political metaphysicians” and to pay attention to what was happening across the Channel and the Atlantic.

Lessons from the Anglosphere

On Executive Power does not disguise Necker’s impatience with the Constituent Assembly’s overconfidence. The Assembly was convinced that it could do better than the arrangements that had developed in Britain, or that had been agreed upon and ratified in America in 1788. According to Necker, both the British and American constitutions had resolved the executive power problem by intermingling legislative and executive powers, in ways that energized the executive without putting it beyond the legislature’s supervision.

It was not that Necker wanted France to adopt holus-bolus either the U.S. Constitution or Britain’s constitutional provisions. For one thing, the economic conditions of Britain and America (countries further down the path of becoming commercial and industrial societies) differed significantly from those of France. As a continental European power, France’s geopolitical challenges were also dissimilar. Such realities, to Necker’s mind, mattered for constitution-making purposes.

Nevertheless, Necker was confident that France could learn from the Anglo-American world. Several chapters of On Executive Power draw explicit parallels between France’s 1791 Constitution and the prevailing structures in Britain and America, invariably to France’s discredit. Necker was not uncritical of Britain and America’s constitutions. He believed, for instance, that British parliamentary terms were far too long. That said, Necker thought that Britain’s constitution had successfully integrated public order with “the most perfect civil and political freedoms,” while America’s approach to executive power had managed the rare feat of giving it energy while also limiting its potential to undermine liberty.

Necker’s comparative analysis, however, went beyond laws and institutions. Like Montesquieu, Necker understood the significance of cultural variables, which meant that what worked in America might not function so well in France. It goes without saying that all constitutions are shaped by contextual factors that are peculiar to a given nation. Necker, however, was equally concerned with discerning how constitution-making might influence people’s general moral outlook and their attitudes regarding politics. This line of inquiry formed the basis for another of his major critiques of France’s 1791 Constitution.

Morals and Constitutionalism

A constitution that imparts excessive power to the legislature, Necker held, will give rise to expectations on the part of legislators (and those voting for them) that everything can be changed for the better via legislative power. But such attitudes will, at some point, crash into some of life’s intangibles. Many would subsequently become “disillusioned in their first hopes.” Necker cautions, however, that this experience, far from bringing more realism to public life, would just as likely encourage further “illusions.” These would result in further concentrations of power in the legislature, spread “confused ambition, and uncertain restlessness,” and thereby spawn an atmosphere in which “nobody gains in happiness.”

Necker’s insights into the harmful moral effects of all-powerful legislatures surely apply just as well to an imperial judiciary or to the common-good constitutionalists’ “powerful presidency ruling over a powerful bureaucracy.” But whatever constitutional arrangements a nation makes, Necker had no doubt that there was one contextual subject that needed to be treated with particular sensitivity: religion.

Like all participants in the eighteenth-century republic of letters, Necker appreciated the advances in knowledge that the social sciences—especially economics—had made during the Enlightenment. Yet Necker had no time for the “philosophers of yesterday, children of presumption,” who mocked religion. Nor did he have patience for “the perilous faith of certain speculative minds” who presumed to undertake “the instruction of the human race” in “a catechism, purely political.” This was a hostile allusion to those individuals who, as they devised the legislature-centric constitution of 1791, had engaged in what Necker regarded as dangerous and foolish attacks on religion.

A devout Protestant, Necker had been heartened by the decision of the liberal-minded but also faithful Catholic, Louis XVI, to issue the Edict of Versailles in 1787. This restored civil and legal rights to non-Catholics, which had been denied following Louis XIV’s revocation of the Edict of Nantes in 1685.

Necker maintained, however, that the same legislators who had devised the “bad constitution” of 1791 were playing with fire when they denigrated Christian belief, the Church in general, and Catholic clergy in particular. Religion, Necker stated, was concerned with “sublime ideas.” To mock these ideas and its primary articulators, he reasoned, would unravel many of the bonds of sentiment and morality that held society together. What Necker dismissed as the “incomprehensible jargon” of philosophes and their followers in France’s legislature could never match the solid underpinnings for liberty that religion provided.

Jacques Necker died in April 1804. He lived long enough to see how Napoleon’s 1799 coup d’état was followed by the establishment of what the 1791 Constitution’s drafters had dreaded: an executive with even fewer restraints than those on the king of ancien régime France. We will never know whether the adoption of Necker’s vision—of a constitutional parliamentary monarchy, a balance of powers, and widespread commitment to a mixture of Enlightenment and Christian values—might have averted this result. On Executive Power does, however, have much to say to those who are inclined to dramatically restrict—or, for that matter, to those who would radically empower—the executive branch in our time. They would be wise to listen.