Sunday, March 2, 2014

Crumbling Wall

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” Federalist #47-James Madison

To prevent tyranny, walls were built long ago. Those walls, keeping the various parts of government separated, are falling down. 

The Founders split the power between the states and the federal government. They also split the federal government apart - all in a strong effort to prevent the consolidation of power -  but after 225 years, the mortar is weakening.

The states were a significant check, but in the mid-twentieth century the Supreme Court began to interpret the Constitution in such a way as to significantly reduce the power of the states to the advantage of the national government.  In addition to changing the structure through changing the meaning of words in the Constitution, the national government has slowly accrued power through money. Today about half of state revenue comes from the national government. Even if a state wanted to resist, they simply cannot afford to. They have become subservient to the will of the national government. This check is largely gone.

What about the two other branches of the federal government? The Congress was given several means to prevent the unchecked power of the Executive:

·         Power of the Purse
·         Oversight Jurisdiction
·         Impeachment

How are these bricks holding up?

1.     Power of the Purse
As we saw from recent attempts, Congress cannot muster the political capital necessary to cut off all funding because people recognize the cascading failure that would happen to so many services that Americans have now become dependent upon. This “nuclear option” will not work. Aside from a total cut off, attempts to “piece meal” restrictions have been met by the Executive simply moving “discretionary” items around to achieve its goals. Recently, in order to pay for the federal health insurance exchange, the Obama Administration made plans to use 454 million in Prevention Fund dollars - which is about half of that annual budget. With the President able and willing to circumvent the law by a financial shell game, the power of the purse is effectively nullified.

2.     Oversight Jurisdiction
Recent attempts by Congress to subpoena documents have been denied and questions have been refused to be answered.  Attempts to force compliance have been hamstrung by courts.  
Appointments are another oversight, but the typical party spirit does not lead to consensus. Congress should have a standing rule that anyone given a recess appointment to a judicial position be categorically rejected for subsequent confirmation, but the party in power sides with the President. The short term political gain at the expense of long term constitutional damage is slowly taking more bricks out of the wall.

3.     Impeachment
To achieve this defense against tyranny, a Congress has to be largely united in opposition to a President. This means the people have to be united in opposition against a President in order to elect/support those representatives.  An astute President will make sure he is satisfying enough of the people to prevent this. As Julius Caesar made sure to take care of the people’s demands to prevent an uprising, our modern government has slowly put enough people on the teat of government support to prevent a mass voting against a President who is “giving the people their bread”.  Achieving impeachment is very unlikely.

What of the last branch the Supreme Court?
We have seen significant challenges to violations of the Constitution raised but rejected due to a lack of “standing”.  In order to even obtain a hearing for a violation, one must show an injury-in-fact, show an injury that is traceable to the defendants conduct and be “fixable” by the Court. All these are artificial constructs as this definition is nowhere in the Constitution.  The Court has been reluctant to grant standing to members of Congress as they seem to view challenges as a sort of poor loser mentality.  The Court is away without constitutional leave while the walls separating the powers that were instituted by the Founders are being slowly, consistently torn down. The guardianship of the lines separating the powers is a basic and essential duty of the Court and they are failing.

A further development is the vast increase in the administrative bureaucracy.  Perhaps a majority of “laws” or regulations are not passed by Congress but by this massive new branch of government. The Court in the recent case Arlington v FCC ruled that government agencies can decide their own jurisdictions! In dissent Chief Justice Roberts said, “It would be a bit much to describe the result as ’the very definition of tyranny’ but the danger posed by the growing power of the administrative state cannot be dismissed.”

A wall as thick and well-built as the Constitution of the Unites States is not easily or quickly destroyed. Alert citizens are seeing holes - decades in the making -  in the brick and mortar. Without a sudden calamity it could take years yet before a total breach is accomplished. There is still time. 

What to do?

The Framers feared the legislative branch and made Congress as weak as possible. It was designed for political division not consensus, so to look for remedy there is vain.

To hope for a leader possessing the self-restraint of a Washington to arrive in the Executive position and set things straight is empty hope. The Executive position has become what the anti-federalists warned it would become, “attended with great honor and prestige, as they always will be in large states, so as greatly to interest men to pursue them, and to be proper objects for ambitious and designing men, such men will be ever restless in their pursuit after them. They will use the power, when they have acquired it, to the purposes of gratifying their own interest” (Brutus,1787). 

The Court has shown no indication they will assert themselves in these matters and as time goes by - and if power were to remain in a party - they will increasingly be stocked with like-minded robes as the man who appoints them.

 “WE THE PEOPLE”  begins the Constitution. 

This is the true foundation of our republic and if it is to continue it is only the people who can repair the wall.

Paraphrasing Os Guinness:

Can the people tear away the chains of comfort and complacency and return to the deeply held roots of the Jewish, Christian, and Classical beliefs that made our vision possible? Can we turn away from alternate visions of freedom that though seductive are lazy-minded and empty?

The shadows are lengthening. Revive America, and return.

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