DOI:  10.55804/jtsuSPEKALI-18-1

The Colonial Roots of the American Political Practice

The tradition of the American democracy that has lasted longer than  two centuries is based on several different factors. From these factors researchers, practicing lawyers and politicians single out the system of deterrence and balancing. The example of this is the address made by Judge Antonin Scalia during the opening of the session of the Senate Judiciary Committee on 11 October 2011. Scalia spoke about the special role of a judge in the context of the American Constitution. Moreover, in this speech, the judge highlighted why the American democracy still functions and what differentiates it from the authoritarian regimes like the Soviet Union, which, to everyone's surprise, had the brilliantly established human rights. According to Scalia’s words, the most serious problem of constitutions of such countries is the lack of insurance mechanisms against centralization of government, which turns a part of human rights "into a pile of useless paper, as the founders would say" [Scalia, 2011]. It is not accidental that in this speech Scalia emphasized the importance of the principle of separation of power, which implied the distribution of power between different branches of the government. While referring to this conception, Scalia invoked the Constitution of the United States and the founding fathers, who had pursued the idea of the separation of power even before the creation of the constitution. This is what John Adams's letter of 1776 ("Thoughts on Government") indicates. In this letter, he mentions that "if the legislative power is represented in one assembly and the executive one   -  in another, these two powers will oppose and balance each other" [Adams, 1776].

It is not new for the researchers of the issue that the origin of the American system is directly related to the colonists and settlers, who came to the American continent mainly from England. Accordingly, the historical processes that  took place in England and the revolutionary upheavals of the 17th  century had the direct impact on the American colonies. Along with many others, the main cause of the developments in England was the attempt to usurp power by the executive government. This was revealed by imposing the taxes and passing the laws without the parliament by James I, who had a too high opinion of himself [Beard... 1944:15]. It is not also accidental that  Cromwell seized power in 1649. He executed the king and tried to create the parliamentary republic. With the widespread support of the Puritans, he resolutely rejected the king and the House of Lords and handed over the power to the House of Commons. Cromwell's dictatorship was also the manifestation of the usurpation of the same executive power, which would transfer the wider power to the people and the House of Commons. The Puritans had to immigrate to the American colonies after the restoration of the monarchy and the colonies became more like England [Schudson, 1999:14]. Along with this, from the famous revolution to the Treaty of Paris of 1763, the increasing pressure of the imperial government made the American colonies even more similar to England [Murrin, 1987:334]. Accordingly, the political inclinations and ideals were based on the English influence and the British constitution was perceived as a great instrument of politics [Schudson, 1999:15]. The latter was the set of laws or legal traditions that were exemplary for the founding fathers of America, because it aimed to establish the mechanism of the power distribution and balance between different branches (with the motive of avoiding an autocratic ruling). The clear example of this is "Bill of Rights" adopted in England in 1689. According to it, "the suspension or enforcement of the laws by the royal power is prohibited without the consent of Parliament". Additionally, "the collection of taxes for the purposes of the monarch is illegal without the consent of Parliament" [English Bill of Rights, 1689]. This document clearly indicates both the restraint of the monarch's power and the maintenance of the balance between the legislative and executive branches, which, as I already mentioned, played one of the decisive roles in the formation of the spirit of the American Constitution. As Alexis de Tocqueville skillfully mentions, "the children of the country  -   in which the factional opposition has been going on for centuries and all political groups have established the principle of the rule of law  -  brought in emigration the strict style of the political education. Having refined this knowledge in emigration, they know the essence of the principles of rights and freedom more than their European contemporaries do. During the period of the first emigration, the town system  -   the fertile germ of free institutions  -  was deeply rooted in the English customs; Along with this, the doctrine of public sovereignty, which emerged from the heart of the Tudor monarchy" [Tocqueville, 2010:39]. Despite this tradition of self-government, which is still a prominent feature of the American society, the creation of the strong and stable central government was not an easy process. Moreover, the tradition of self-governance and decentralization made it even more difficult to create the constitution after the Revolutionary War, exemplified by the Articles of Confederation of 1777-1783, which offered the large portion of sovereignty to the states. For example, the second article of this document described the states as "sovereign, independent and free in all rights" [Articles of Confederation, 1777]. This was very different from the Constitution adopted in 1787.

The Operation of the Separation of Powers in the Constitution of the United States of America

Despite almost 250 years’ existence of the American Constitution that indicates to its high legitimacy, the process of its creation was not easy, because most of existing 13 states had their own interests and visions of the arrangement of the government. As Shlomo Slomin mentions, many well-known confrontations were related to the Constitutional Convention, for example, between the big and small states, between the federalists and nationalists, between the slave owners and non-slave owners, etc. [American... 1986:37]. According to Padover, in some states voting for the constitution was such a difficult process that supporters "had to stream rhetoric, logic and political analysis". Despite this, the constitution was supported by the correlation 30-27 in New York local assembly [Padover, 1960:90]. To support this goal, Alexander Hamilton, James Madison and John Jay formed the small group, called themselves the Federalists and began to spread the movement supporting the unity of the states. According to Padover, it would be fair to consider James Madison as one of the most important and influential political thinkers of the Western world [Padover, 1960:96]. It was Madison, who wrote most of the constitution and dedicated the 47th  Federalist Letter to the principle of separation of power [Meany, 2018]. In the mentioned letter, we read: "when all power in the form of its three branches   -  legislative, executive and judicial   -   is concentrated in one hand, such a situation is fairly called tyranny, in the most accurate sense of this word" {...} "Legislative, executive and judicial governments should be separated from one another. It is more relevant if they act independently as the nature of the system of  free governance allows" [The Federalist, 1961:327]. The system of separation of powers in the Constitution of the United States of America was taken from the well-known thought of Charles Louis de Montesquieu. "The British political order for Montesquieu is what Homer is for didactic writers, who compose epic poems. The latter consider the work of the immortal bard to be the perfect example from which they draw the beginnings and rules of the epic art! In the same way, the political system of England became the model for this great political critic. If we say with his words, for him it is the mirror of the political freedom" [The Federalist, 1961:324]. For Madison, Montesquieu was a true symbol of how America would follow the English roots of law. Finally, the Federalists' efforts resulted in the Congress being divided into two parts, each elected by a different system and an executive government headed by president elected by the people through Electoral College.

The Constitutional Instability in Georgia after the Restoration of Independence

As it is known, after the restoration of independence, in parallel with the severe political conflicts in Georgia, the adoption of the first constitution became possible only in 1995. However, until now it underwent three fundamental changes   -   initially in 2004, then in 2010 and finally, in 2017   -   during which almost every time the system of governance significantly changed. According to today’s data, the 28-year-old Constitution of Georgia was amended 36 times, while the 240-year-old Constitution of the USA underwent 27 amendments, two of which were the adoption and repeal of dry laws, while the first ten were Bills of Rights.

It should be noted that each amendment to the Constitution of Georgia was widely criticized by such influential organizations as Venice Commission. For example, at the moment of entry into force of the changes of 2010, when the presidential system was supposed to be transformed into the semi-parliamentary one, Venice Commission rejected the very principle of the separation of power and stated that it would be desirable to strengthen the power of the parliament. This happened due to a very good understanding of how the executive power tended to usurp the power, against which the strong levers of the parliament were needed. I think that after the latest changes, as the power of the parliament relatively strengthened, the problem remains in a significant reduction of a role of president. It would be better it the latter  maintain a kind of a balancing role expressing people's mandate. Nowadays, the role of the president is mostly nominal, symbolic and does not have a serious impact on social or political processes. I think that the removal of the president from the vertical of power is a big mistake, which can be explained in the context of the distribution of power as follows. Firstly, it is problematic that the president is no longer elected by the people. According to the first clause of Article 50 of the Constitution of Georgia: "The President of Georgia shall be elected for a term of 5 years by the Electoral College, without debates and by open ballot”. According to the third clause of the same article: "The Electoral College shall consist of 300 members and shall include all  members of the Parliament of Georgia and of the supreme representative bodies of the Autonomous Republics of Abkhazia and Adjara”. It is true that Georgia took a clear step towards establishing the parliamentary republic. However, if the president was still elected by the people, he/she would have a higher legitimacy to be involved in a political process. Additionally, with the current arrangement, it turns out that the Georgian people directly elect only one  -   legislature  -  branch of government. This is undesirable in terms of the functioning of the mechanism of mutual balance between the branches and on the example of the states that prone to the usurpation of power. Moreover, due to the lack of parliamentary control indicated by Venice Commission, the president should have been left with enough power to balance the executive government. As James Madison noted in Federalist Letter 51: "Ambition must be opposed by ambition" [The Federalist, 1961:349]. However, in case of the president, sufficient power and legitimacy are needed for this. The weight of this argument increases even more when we face the transitional democracy (like Georgia) and the culture of the low parliamentary control, which is presented by the passive work of various interest groups, government hours and investigative commissions.

Apart from the fact that the method of electing the president would give him/her a high legitimacy and an ambition to balance the government, there are a number of mechanisms that (in case of a proper planning) would better implement the principle of separation of power and balance. Such a possibility is the president’ veto, which, according to the current edition of the Constitution of Georgia, is so sham that its existence in this form has no significance. For example, Clause 3 of Article 46 of the Constitution states: "if the President of Georgia returns the law, the Parliament shall put the President’s remark to a vote of Georgia. The adoption of the remarks requires the same number of votes as for the initial adoption of the type of law in question". It is obvious that president’s remarks (i.e. veto) have the function of creating a public discussion and parliament can pass for the second time, without difficulties, the law that he/she disliked with the same number of votes.

Another shortcoming of the Georgian political system, whose correction would better balance the branches of the government, is the absence of a bicameral parliament. The Constitution of Georgia temporarily postponed the creation of a bicameral parliament in accordance to the first clause of Article 37: "Following the full restoration of Georgia’s jurisdiction throughout the entire territory of Georgia, two chambers shall be established within the Parliament: the Council of the Republic and the Senate".  I mentioned  why the founding fathers of America had considered it necessary to establish bicameral legislative bodies even before the American Constitution. In  case of Georgia, which is politically and economically quite centralized, the second chamber can bring into action elements of decentralization and development of peripheries along with emergence of possibility of pluralism. The latter seems necessary on the background of the problems of the regional self-governance. Positive aspects of a bicameral parliament can be seen even better if its election cycle does not coincide with that of the Council of the Republic. In this case, the frequency of elections will make government bodies and political parties more accountable, whose example is the Congress of the USA. On the other hand, it will create more opportunities to present regional problematics to higher authorities. Additionally, due to the actual absence of president's veto, the second chamber of Parliament can perform the function of a legislative supervisor, which would better enact the principle of the balance of power. For example, if as a result of elections of the Council of the Republic, the lower house declares confidence in a particular government group and the latter fails to justify it, the next election of the Senate (which will be held before the next election of the lower house) can create an anti-government group majority in the upper house, which will trigger functions of an active oversight and accountability. I think such a multifaceted political process will complicate usurpation of power, which is the main vice and challenge of the Georgian political system.