The State of the Union Is The Equivalent of the Sovereign’s State Opening of Parliament

“[The President of the United States] shall from time to time give the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient […]”. President Washington “set the precedent” and ultimately established a convention that “from time to time” means annually.[1] I invoke the idea of “conventions” in the United States deliberately, because even written constitutional regimes fill in the gaps with customs and traditions that slowly become part of the overall constitutional system. British constitutional scholar Sir W. Ivor Jennings observed this tendency in the United States: “Thus a whole host of conventions has grown up around and upon the Constitution of the United States, regulating […] the method of electing the President, […] the composition and operation of his Cabinet, his relations with Congress, and so on.”[2]

Parenthetically, the wording of the American Constitution above shows that what became the State of the Union clearly drew inspiration from the British Sovereign’s annual State Opening of Parliament, or what we call in Canada the Speech from the Throne, in which the Sovereign or the Sovereign’s representative reads before a joint sitting of parliament the government’s policy priorities for the upcoming session. Contrary to the implication of Gerhard Peters’ description, the Sovereign or the Sovereign’s representative reads the speech that the government prepares, and thereby carries out the government’s advice rather than his or her own personal discretionary authority.

Loyal Opposition in the United States Derives From the “Balanced Constitution” and Representative Government of 18^th-Century Westminster Parliamentarism (1689-1830)

By another well-established convention, the party not in the White House issues the “opposition response” to the President’s State of the Union Address. The avuncular Republican Governor of Indiana, Mitch Daniels, delivered the Republican Party’s response in 2012.  One of my American friends had seen my endless stream of Facebook statuses on loyal opposition in the Westminster system and brought to my attention that Governor Daniels invoked the phrase “loyal opposition” several times in the Republican response. I found Governor Daniels’ articulation of the American concept of loyal opposition intriguing and altogether different from the modern Westminster model of loyal opposition.

Governor Daniels has made the following comments on loyal opposition, in his response to the State of the Union. (I derived from the text of his speech, but which you can see for yourself in the embedded videos below).

The status of ‘loyal opposition’ imposes on those out of power some serious responsibilities: to show respect for the Presidency and its occupant, to express agreement where it exists. […]
An opposition that would earn its way back to leadership must offer not just criticism of failures that anyone can see, but a positive and credible plan to make life better, particularly for those aspiring to make a better life for themselves.  Republicans accept this duty, gratefully.[…]
As a loyal opposition, who put patriotism and national success ahead of party or ideology or any self-interest, we say that anyone who will join us in the cause of growth and solvency is our ally, and our friend.  We will speak the language of unity.  Let us rebuild our finances, and the safety net, and reopen the door to the stairway upward; any other disagreements we may have can wait.

In 2009, Governor Mitch Daniels responded to the Democrats’ legislation on cap-and-trade and expressed his opposition in a gubernatorial message:

The role of the loyal opposition is important in our democracy. It imposes a duty to wish for the nation’s success, to express not just disagreements, but agreements where they exist, and to leave partisanship at the water’s edge.

Based on Governor Daniels’ messages, we can derive the following roles of loyal opposition in the American system and then compare them to the role of loyal opposition in Westminster parliaments:

1. The loyal opposition, “important for democracy”, institutionalizes political dissent;
2. The loyal opposition is “responsible”: the party or parties in opposition operate exclusively within the constitutional framework, and they “respect the Presidency and its occupant”;
3. The loyal opposition presents itself as an alternative government by “earning its way back to leadership”;
4. The loyal opposition “expresses agreement where it exists”, and “leaves partisanship at the water’s edge”;
5. The loyal opposition puts the country first and must subordinate “party, ideology, and self-interest” to its “duty to wish for the nation’s success”; and
6. The loyal opposition must therefore expresses disagreement and opposition to the government’s policies where it exists.

In Westminster systems, loyal opposition refers to a responsible party that abides by the constitution and presents itself as an alternative government; the loyal opposition opposes the government’s policies but is always loyal to the Crown and therefore to the country. In the Presidential-Congressional system, the President is both head of state and head of government, paradoxically both a unifying and divisive figure. Modern Westminster parliamentarism and responsible government have long since done away with such ambiguities: under our system, the Sovereign is the head of state, but he or she acts upon and in accordance with (except in exceptional circumstances) the advice of the Prime Minister, the head of government, and the Cabinet. Responsible government therefore implements a separation of powers more advantageous than the division between the executive and the legislature; this supreme advantage of parliamentarism allows the Prime Minister and his Cabinet to bear the brunt of all criticism and allows the Sovereign to rise above politics and become a true unifying national figure. I therefore disagree with Governor Daniels: loyal opposition in the United States requires that the opposition respect the Presidency (the office) but not necessarily the President (the man), though this distinction is probably difficult to maintain in practice.

Loyal opposition in Westminster systems is inherently partisan, unlike in Governor Daniels’ formulation of loyal opposition in the United States. The separation of the Head of State from the Head of Government allows the loyal opposition in Westminster systems to unleash an onslaught of criticism toward the government without raising the question of their loyalty to the country, because the Sovereign only implements the bad advice of the government. Thus in Westminster systems, partisan loyal opposition still puts the country first.

In short, loyal opposition in the United States resembles the more restrained loyal opposition that occurred under the Balanced Constitution and the era of Representative Government (1689-1832) in Westminster parliamentarism. Under this Balanced Constitution, a kind of transition between the Royal Supremacy and Responsible Government, the Prime Minister essentially acted as an agent of the Sovereign and had to retain his confidence rather than the confidence of the House of Commons. The full separation of the Sovereign from the Prime Minister had not yet evolved when the British American colonists rebelled in the 1770s, so the American system became a republican adaption of the Balanced Constitution: three co-equal branches of governments and two levels of government in a federal system would restrain power and contain personal ambition in order to prevent tyranny. British historian R.M. Punnett refers to the checks and balances of the American system – the Senate on the House, the Presidency on the Congress as a whole, etc. – and the federal division of powers as “institutional opposition.”[3] As such, American bipartisanship might have resulted from the absence of Westminster-style loyal opposition.

Affirmation of Loyalty in the American System: Allegiance to the Constitution

But how do we measure loyalty? All parliamentarians must swear or affirm the Parliamentary Oath of Allegiance to the Sovereign in order to demonstrate their personal loyalty and commitment to act within the constitution, which in turns forms the basis of the loyal opposition’s collective loyalty and responsibility. The Oath of Allegiance also recognizes that the lower chamber and the upper chamber, along with the Crown, form the three parts of the sovereign Crown-in-Parliament.

Governor Daniels articulated a reasonable summary of loyal opposition in the United States, similar to the loyal opposition of the Balanced Constitution and the era of representative government in Westminster parliamentarism. I would argue that a more concise formulation of the principle of loyal opposition in the American system would be, “opposition to the policies of the President but loyalty to the Constitution, and therefore to the country.” In republics, the people are both the political and legal sovereign, but the oath of allegiance in a republic can recognize either the constitution or the people. The United States tends more toward the former. While the famous preamble of their Constitution vests sovereignty in “We the People”, their Constitution also contains an oath or affirmation of office of the Presidency that serves as a model for other commissions of office under the Constitution or statutory law: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” The Constitution of the United States is the equivalent of the Crown in Westminster systems as the supreme course of legal authority and legitimacy. Loyalty to the Constitution therefore enshrines loyalty to and the paramountcy of the rule of law – the most important legal principle in any constitutional system, republican or monarchical. In contrast, loyalty to “the people” or to “the nation” (as in the Republic of Ireland) upholds an undiluted form of democracy that can easily led to the tyranny of the majority; the American Constitution contains a clear rational meaning, but “the people” or “the nation” evoke a fickle romanticism of ambiguous definition and ever-changing ephemeral emotion. Sometimes “the general will” of the people may contradict the rule of law and the rational values of the Enlightenment that the American Constitution codified, or it may become confused, such as when “the people” choose to elect a Tea Party House, a Democratic Senate, and a Democratic President.

I can only conclude that the American political system would benefit for a widespread discussion on what constitutes “loyal opposition” within the confines of a presidential-congressional system, as well as a clear formulation of loyal opposition (such as the aforementioned definition that I offerred), though perhaps what Punnett called “institutional opposition” invariably over-rides “loyal opposition.” I am reminded again by a scene in The West Wing. Leo McGarry in “The Leadership Breakfast” recounts an anecdote from his youth:

There was a freshman Democrat who came to Congress 50 years ago. He turned to a senior Democrat and said, “Where are the Republicans? I want to meet the enemy.”
The senior Democrat said, “The Republicans aren’t the enemy. They’re the opposition. The Senate is the enemy.”
Those days are over.

Based on the current conflict between the House and the Senate, I’m not so sure!

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• The Westminster Origins of the United States Congress
• Parliamentary Privilege in the United States Congress
• 1774: Thomas Jefferson – The Rights of British Americans and The Origins of the Commonwealth Realms
• “Irresponsible Government” and the American System
• Presidentialism vs. Parliamentarism: The American Presidency
• Presidentialism vs. Parliamentarism in The West Wing
• Her Majesty’s Loyal Opposition
• Parliamentary Oaths of Allegiance in the Westminster System