“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.”
Conclusion
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.
