To Form a Government

Lloyd N. Culter

From Foreign Affairs, Fall 1980

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Summary:  Our society was one of the first to write a Constitution. This reflected the confident conviction of the Enlightenment that explicit written arrangements could be devised to structure a government that would be neither tyrannical nor impotent in its time, and to allow for future amendment as experience and change might require.

Lloyd N. Cutler is currently Counsel to the President. From 1962 to 1979 he was a partner in the Washington law firm of Wilmer, Cutler & Pickering, and served also on various public commissions. This article is adapted from the Strasburger Lecture delivered at the University of Texas Law School in April 1980. The views expressed are personal to the author. They were formed in large part before he assumed his present position.

[On May 10, 1940, Winston Churchill was summoned to Buckingham Palace.] His Majesty received me most graciously and bade me sit down. He looked at me searchingly and quizzically for some moments, and then said: "I suppose you don't know why I have sent for you?" Adopting his mood, I replied: "Sir, I simply couldn't imagine why." He laughed and said: "I want to ask you to form a Government." I said I would certainly do so.

-Winston S. Churchill

The Gathering Storm (1948)

Our society was one of the first to write a Constitution. This reflected the confident conviction of the Enlightenment that explicit written arrangements could be devised to structure a government that would be neither tyrannical nor impotent in its time, and to allow for future amendment as experience and change might require.

We are all children of this faith in a rational written arrangement for governing. Our faith should encourage us to consider changes in our Constitution-for which the framers explicitly allowed-that would assist us in adjusting to the changes in the world in which the Constitution must function. Yet we tend to resist suggestions that amendments to our existing constitutional framework are needed to govern our portion of the interdependent world society we have become, and to cope with the resulting problems that all contemporary governments must resolve.

A particular shortcoming in need of a remedy is the structural inability of our government to propose, legislate and administer a balanced program for governing. In parliamentary terms, one might say that under the U.S. Constitution it is not now feasible to "form a Government." The separation of powers between the legislative and executive branches, whatever its merits in 1793, has become a structure that almost guarantees stalemate today. As we wonder why we are having such a difficult time making decisions we all know must be made, and projecting our power and leadership, we should reflect on whether this is one big reason.

We elect one presidential candidate over another on the basis of our judgment of the overall program he presents, his ability to carry it out, and his capacity to adapt his program to new developments as they arise. We elected President Carter, whose program included, as one of its most important elements, the successful completion of the SALT II negotiations that his two predecessors had been conducting since 1972. President Carter did complete and sign a SALT II Treaty, in June 1979, which he and his Cabinet regarded as very much in the national security interests of the United States. Notwithstanding recent events, the President and his Cabinet still hold that view-indeed they believe the mounting intensity of our confrontation with the Soviet Union makes it even more important for the two superpowers to adopt and abide by explicit rules as to the size and quality of each side's strategic nuclear arsenal, and as to how each side can verify what the other side is doing.

But because we do not "form ...

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