On the separation of powers

These United States were founded upon a complex balancing act.   Individual rights were a paramount concern at the time of the founding, but it was well understood that any concentration of authority would push against individual rights.   And so the government was set up in balance, with various power centers competing against one another.    The only part of the balance of power taught in the schools this last 35 years (what I remember) is the balance between the Legislative, Executive, and Judicial branches.   However, that wasn’t the only balance built into the foundation of the country, nor even the most important one.    The primary balance built into the founding of this country was the balance between the federal government and the states.

Without taking away from the American Revolutions of 1776, 1860, and 1933, I’d suggest that we start our discussion of the Revolution of 1789, and the enumeration of separated powers there.

In the re-revolutionary US Constitution of 1789, there were a lot of balancing powers built to prevent either the federal government or the states from achieving too much power.

  1. Secession.  The states are understood, much like the colonies, to have the unilateral right to secede from the union.  “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them …”.   When membership in a federation is secession-prone, the federal government may not push too harshly.    This balance was removed in the revolution of 1860.
  2. Taxation.  The Federal government is explicitly prohibited from taxing the citizens directly.  It may only tax the states, and only by headcount.  A dependency upon the states for funds is, after fear of exit, the single largest constraint on a central federal system.   This balance was removed in 1913.
  3. The Senate.   The Senate was constructed explicitly for the purpose of disallowing large populous states from pushing their Agenda unilaterally upon less populous, but still understood to be independent smaller states.
  4. The Electoral College.  Again, the choice of the president is not understood to be by the population, but rather by the states.   One or two large pushy states should not be able to centrally enforce their agendas upon the rest of the country.
  5. The Senators.  The original Senators were appointed by the states’ governments to the Senate, providing a strong voice for the states’ interests in the federal government.   This balance was removed in 1913 as well.
  6. Enumeration of Powers.  The constitution explicitly lists the powers of the federal government.     Article I, Section 8 enumerates legislative authority.   Article II, Section 2 enumerates executive authority.   Article III, Section 3 enumerates judicial authority.   As far as I’m able to tell, this limit on the enumerated powers of the federal government died in 1937, with Parrish.
  7. Original Amendments.  The 9th and 10th Amendments to the United States Constitution were both built in order to further remind the federal government that nothing except what was explicitly included in the constitution was in the scope of federal power.  Again, it seems to me that this died in 1942 with Wickard.
  8. Amendment Process.  The Constitution may be amended by a majority of the states.  The states may propose an amendment, and then the states may ratify it.

Overall, there were at least eight elements built into the fabric of the federal government for the purpose of balancing the states’ power against that of the federal government. There are still four three [ed: oops]left.

Now, you may be wondering what I think about proposals to drop the electoral college in favor of a national popular vote.   That is left as an exercise for the reader.

7 thoughts on “On the separation of powers”

  1. I have been harping on many of those events, but without the case references (for which I thank you). I usually also throw in the Federal Reserve, since it gave the government a way to secretly tax everything through controlled inflation.

    Liked by 1 person

    1. Chris,

      The income tax is a similar thing. I’m going to have to think long and hard about whether I want to include that in my next enumeration of checks on the gov’t

      Like

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