The "newest" separation of powers: Semipresidentialism

In a recent issue of the Harvard Law Review, Bruce Ackerman argues against the export of an American–style separation of powers to the rest of the world, preferring the model of “constrained parliamentarism” that operates in countries such as Germany and South Africa.1 Ackerman comments that, “since 1989, American jurists have become big boosters of the American Way at constitutional conventions everywhere.”2 Steven Calabresi agrees, claiming that “Bruce Ackerman is absolutely right to say that presidentialism is now the toast of the world.”3 But reviewing the new democracies around the world today, the constitutional model rapidly being imported by these newly democratic states is neither the American–style presidentialism, so vigorously defended by Calabresi, nor the constrained parliamentary model advocated by Ackerman. Rather, semipresidentialism—an undertheorized constitutional type that is most often associated with the French Fifth Republic—has rapidly gained ground. This constitutional type combines a popularly elected head of state with a head of government who is responsible to a popularly elected legislature, thus making the model conceptually and analytically distinct from the other two principal constitutional types existing in the world today. Consider, in this context, that after the collapse of communism, when some thirty countries crafted democratic constitutions, the most common constitution chosen was semipresidentialism. Belarus, Croatia, Poland, Romania, Russia, and Ukraine, among many other countries in the post-Soviet space, adopted semipresidentialism, contradicting the predictions of both Ackerman and Calabresi.4 Throughout the 1990s, semipresidentialism was also evaluated for import by countries in Africa and Asia, and even in Latin America—the onetime bastion of U.S. presidentialism. In more than fifty countries across the European, Asian, and African continents, semipresidentialism has become the “newest” separation of powers. In spite of its recent and rapidly growing popularity across the globe, however, semipresidentialism has been absent from scholarship in both constitutional law and political science. Semipresidentialism has been dismissed by leading scholars either as a “type of one” or on the ground that it is not a third type at all but, rather, “an alternation of parliamentary and presidential phases” of government.5 This article introduces semipresidentialism to constitutional law. The article first distinguishes this undertheorized type from both presidentialism and parliamentarism; it then suggests the problems associated with its hasty adoption by new democracies, drawing on insights from constitutional theory and constitutional history.6 More specifically, the article details when, and why, semipresidentialism can be problematic from the standpoint of democracy, constitutionalism, and the protection of fundamental civil liberties and political rights. The article is also programmatic: it urges constitutional scholars to bring comparative historical analysis back to the study of constitutional law. For, as J. M. Balkin and Sanford Levinson note, “the current study of constitutional law is too much centered on the opinions of the Supreme Court and lacks comparative and historical perspective.”7 After establishing an analytical framework that synthesizes insights from various disciplines, the article then traces and compares constitutional and political developments in three important historical cases of semipresidentialism. These constitutional narratives are drawn from three of the most influential countries in Europe in the twentieth century: the French Fifth Republic, Weimar Germany, and postcommunist Russia. The two constitutional frameworks most common in the democratic world are parliamentarism and presidentialism. With regard to how these constitutional models set out rules for the formation and termination of governments, they are structural opposites. Parliamentarism is characterized by a fusion of powers and a mutual dependence between the executive and the legislative powers. This is due to the fact that the chief executive (usually a prime minister or chancellor) emanates from the legislature after elections and needs the confidence of the legislature in order for his government to survive the duration of the legislature's term.8 Presidentialism is the opposite: it is a system characterized by the separation of powers and a mutual independence of the executive and legislative powers. This is because the chief executive (a popularly elected president) and the legislature are elected independently of each other, for fixed terms of office, and both can survive for their respective terms without the other's approval.9 Until the early 1990s, most democracies fit neatly into one of these two constitutional types. Yet, by the mid-1990s, numerous new democracies, such as Poland and Russia, met one of the defining criteria for presidentialism (a popularly elected president with a fixed term of office) while also fulfilling one of the essential criteria for parliamentarism (a prime minister who is subject to a vote of no confidence in parliament).10 No purely presidential constitution combines both of these characteristics and the incentive structures they embody, nor does any purely parliamentary constitution. Thus, we have before us a different analytical category and constitutional type, as well as what may be considered the newest and system in the The most of semipresidentialism is the separation of powers that with the of the executive into two independently and an head of government and a popularly elected head of state executive in most constitutions, the to and to is between these two such a or separation of often leading to constitutional a in of between the president and the prime it is often not from the constitution executive has even in such as in the of the French Fifth Republic, the president is in chief of the as and the also states that the prime minister is for of or a to the political it is that the president and the prime minister issue to the or the and that the against the government and in of its in we the new and democracies, may be in and the of political and civil that have a of in political are to this The of this newest system is the and of these two and their elected In all constitutions, the prime minister from the legislature after legislative responsible to it and on it for the legislature's The however, is popularly elected by the for a fixed often for than that of the The president to the legislature in that has an and and can survive without the legislature's This in a for one of the it the president to as well as for these even they of the prime rules and are the the of constitutional with regard to and the the constitutional on these the the of the president government and without the prime minister or the legislature, even an of this separation of powers in semipresidentialism, with the of the executive into two the constitutional are structural is the for as as between the president and the prime minister may to and who even the president and prime minister the a his and his as to the prime may to his prime in this a of and mutual as in a president may even to at the of his prime minister because this president the prime to and does not to the of After of with semipresidentialism, even French constitutional scholars that the is a fact of with this new so much so that to who the and out that as a constitutional is not it the newest separation of powers system now is the fact that a type, it has been rapidly in the of the to the French many new democracies adopted semipresidentialism in the is often is that the first historical was not but, rather, Weimar Germany in and the separation of powers in this constitution was a to popularly elected to powers in order to the from The of of the popularly elected as Ackerman was in some what the without the The at the was not to to in a of but, to their one in of the to its a when too The Weimar the president to without much by other constitutions, today, have this and they presidential by to to to elected and to by all without by the prime the legislature, the it the at from the of democracy, who of this for an their countries from democracies into constitutional a in 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