There are a couple of quotes I’d like to contrast. This
first is from James Madison, in The Federalist Papers, #51:
What is
government itself, but the greatest of all reflections on human nature? If men
were angels, no government would be necessary. If angels were to govern men,
neither internal nor external controls on the government would be needed.
The second quote is from that contemporary political mind,
Gwyneth Paltrow, who held a fundraiser at her Santa Monica, CA, home last week.
Besides gushing, “You’re so handsome that I can’t speak properly,” she advised
all who would hear:
It would be wonderful if
we were able to give this man all of the power that he needs to pass the things
that he needs to pass.
James Madison, image from here; Gwyneth Paltrow, photo from here |
If great minds think alike, then one of these divergent
thinkers might not be a great mind.
Here’s what we know. Human nature means that no person—not even
another George Washington—should be imbued with absolute power. If a person is neither
God nor one of His angels, that person’s power should be limited. So, while it
might be possible to pile up the complaints against our current president’s
character (even though Miss Paltrow apparently can’t), the only necessary
reason for being suspect and limiting his power is: he is not God, and he is no
angel.
Our founders brilliantly identified three aspects of power—and
wisely separated them: law making, law judging, and law executing.
There’s a new course offered online, for free as usual, from
Hillsdale College, called The Presidency and the Constitution,
with Dr. Larry Arnn giving the
introductory lecture. In lecture 1, around 17 minutes in, he gives this background
on separation of powers:
In the Declaration of Independence, there is separation of
powers. It occurs in two ways. In the first way, in the middle of the document,
a largely ignored but incredibly important part of the document, they gave the
reasons why they’re doing it. The bad stuff the king has done. There are 17 of
them, and several of them are violations of separation of powers: made judges dependent
on his will alone, suspended legislatures and interfered with their operation.
And so here you have an executive, and he’s actually getting control—and in
English history sometimes the king did have
control—of all of the processes of government, making him a law unto himself. And
so, that’s condemned in the Declaration of Independence. That is grounds for
revolution, if that happens.
But then the second way is, if anything, more sublime. And
that is, the branches of government are named in the Declaration of Independence
in relation to God. God appears four times. Once he’s the creator. That’s like
a constitution maker, like a founder, if you see that in political terms. And
it would be right, I think, to see it in political terms, because here we have
a sublime political document. The first time He shows up, He’s the maker of the
laws of nature and of nature’s God. He’s the legislator.
Then later, toward the end of the document, He’s named as the
supreme judge of the world—the judicial branch. And as divine providence, the
executive branch. And the lesson from that is plain. The way God is addressed
is the way He is viewed.
And then these complaints against the king, about his
violation of separation of powers, that it is in the hands of God alone that
you would place all the powers of government. And any man, like King George
III, who tried to arrogate those powers to himself—that would be an evil. Not
to be trusted.
Absolute power is not a new threat. It wasn’t even new in
the days of King George III. Tyrants seeking absolute power have been the norm.
But not right. Absolute power in a human being—or even a small number of humans—is
an evil to be avoided. On the Spherical Model, it is southern hemisphere
statist tyranny.
I came across another source this week, also from Hillsdale,
about separation of powers. September’s Imprimis
article is “The History and Danger of Administrative Law," by Philip Hamburger,
of Columbia Law School. He defines
administrative power as a modern version of placing multiple powers in the
hands of the executive—in other words, just another form of tyranny.
He says, in introduction,
Administrative law is commonly defended as a new sort of
power, a product of the 19th and 20th centuries that
developed to deal with the problems of modern society in all its complexity.
From this perspective, the Framers of the Constitution could not have
anticipated it and the Constitution could not have barred it. What I will
suggest, in contrast, is that administrative power is actually very old. It
revives what used to be called prerogative or absolute power, and it is thus
something that the Constitution centrally prohibited.
He compares what our current form of executive-appointed administrative
rule with the long-familiar prerogative power of kings. He uncovers three types
of prerogative power—all of them precluded by our Constitution: extra-legal,
supra-legal, and consolidated power. He explains:
Whereas ordinarily kings bound their subjects through
statutes passed by Parliament, when exercising prerogative power they bound
subjects through proclamations or decrees—or what we today call rules or
regulations. Whereas ordinarily kings would repeal old statutes by obtaining
new statutes, when exercising prerogative power they issued dispensations and
suspensions—or what we today call waivers. Whereas ordinarily kings enforced
the law through the courts of law, when exercising prerogative power they
enforced their commands through their prerogative courts—courts such as the
King’s Council, the Star Chamber, and the High Commission—or what we today call
administrative courts. Ordinarily, English judges resolved legal disputes in
accordance with their independent judgment regarding the law. But when kings
exercised prerogative power, they expected deference from judges, both to their
own decrees and to the holdings and interpretations of their extra-legal
prerogative courts.
When we see our president—and not just the president, but
the legislature, by not doing their duty, but turning it over to some
regulatory agency—writing thousands of regulations, such that no human could
possibly identify them and abide by them, that is the same old tyranny we’ve
seen before. When he decides, using waivers, whom he will choose to exempt from
laws and regulations, again that is the same old tyranny rule. When he has
regulatory agencies judge whether a person is in defiance of a regulation and
can then fine and/or imprison that “wrongdoer,” that is not what our founders
would call divided powers. That is the executive branch (president, potentate,
dictator, king…) making the laws, judging the laws, and executing the enforcement
of them.
What we have is the very mess we declared independence from
back in 1776. So what do we do now?
Hamburger offers this simple-but-not-easy starting point:
The Constitution carefully barred this threat, but
constitutional doctrine has since legitimized this dangerous sort of power. It
therefore is necessary to go back to basics. Among other things, we should no
longer settle for some vague notion of “rule of law, understood as something
that allows the delegation of legislative and judicial powers to administrative
agencies. We should demand rule through
law and rule under law. Even more
fundamentally, we need to reclaim the vocabulary of law: Rather than speak of
administrative law, we should speak of administrative power—indeed, of absolute
power or more concretely of extra-legal, supra-legal, and consolidated power.
Then we at least can begin to recognize the danger.
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