Tag: three branches of government

The three branches of government, hammered out in the Federalist debates

Rerunning our series on the Federalist debates; hello and welcome to part 7 of what is becoming a monumental overview on the conversation that gave us our present Constitution. Rest assured that we’re closing in on the resolution of those debates, but for now, here we take a brief detour on the way to talking about how representation in the House and Senate was hammered out to discuss the three branches of government. (Again we are indebted to the powerhouse lectures on the Federalist debates of Dr. Thomas Pangle, UT Austin, for the flow of our series.)

The “three branches of government” is a phrase we all learn and know as Americans, and may be the one thing we all feel sure we understand about how our federal government works. There are three branches so that each can check and balance each other’s power. Ah, “checks and balances”—the companion to the three branches. No one part of the government can become too strong with this system.

But this is not really very intuitive. Why would one part of the government become too strong in the first place, and if all three branches are able to interfere with each other, why don’t you just get chaos? How can one branch operate if the other branches can check its power?

The Anti-Federalists were aware of this conundrum: checks on power is actually a kind of sharing of power. Why do the powers of the three branches overlap, Anti-Federalists asked? Why can the Executive (President) legislate with veto power, and act judicially with the power to pardon criminals? Why is the Legislature (Congress)  given judicial power to impeach the Executive? Why can the Legislature take on Executive power by giving the president “advice and consent” on treaties and other foreign policy, and by approving presidential cabinet appointees? And why does the Judiciary (particularly the Supreme Court) have the legislative power to write new laws?

Why not just have each branch do its own work, the Anti-Federalists proposed, and if we parcel out the powers between the branches correctly, there will be no problem with one branch becoming too powerful.

The Federalist reply was, again, as it so often was, based on an understanding of human nature. Human beings, they said, are combative and competitive. You can’t group humans into three branches of government and expect them to remain separate but equal. Inevitably, one branch will want to be the most powerful. Balance is very hard to achieve; that’s why you need checks. And the way to create real checks is to allow the branches to share some powers, to overlap in some ways, so that they must cooperate with each other sometimes. Knowing they have to cooperate with each other will be a counterbalance—or check—on the competition between the branches. To keep one branch from becoming all-powerful, the other branches have to have an inside track on it, some way to check its power. If the President didn’t have veto power, the Executive would inevitably become subordinate to the Legislature, as Congress would be able to ignore what the President wanted and duke it out with the Judiciary alone, because only the Judiciary would have the power to overturn laws. If Congress didn’t have the power to impeach the President, and the Judiciary had no way to check presidential power, then the Executive would begin to be dominant, and the president would become a tyrant/king.

As Madison puts it in Federalist Paper 51:

But the great security against a gradual concentration of [power] in [one branch of government], consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But 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 external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

In short, one of the ways in which the new American republic was new and innovative was that it did not rely on having a perfect citizenry or government filled with republican virtue. The new American republic would work with human nature to better it. Instead of constantly trying to avoid conflict, our government would welcome it. If the very structure of our government includes, even depends on, conflict and competition between its branches, then the whole question of checking federal power is turned upside down: instead of having people outside the federal government (the states) constantly monitoring the federal government to make sure it’s not too powerful, and trying to reform the federal government from the outside to end its tyranny, the federal government will check itself. The federal government checks its own power by competing with itself, by having the three branches constantly making sure no one branch is too powerful. And as long as the three branches are functioning the way the Constitution says they should, they will not become corrupted and they will carry out the laws of the Constitution and we won’t have a problem with tyranny.

The key is that the Constitution as the Federalists proposed and wrote it laid out powers for the three branches that were fair and democratic. The only way the federal government could become tyrannical would be if its branches did not obey the Constitution. That would not happen, the Federalists said, with each branch being forced to obey the Constitution by the overlap of powers with other branches that would come down hard on each other if one started to get too powerful. No one branch’s members would sit back while another branch got more powerful. Thus constant competition means constant checking of power which means constant obedience to a just Constitution.

Dividing the Legislature into two bodies, the House of Representatives and the Senate, was an example of this. The biggest worry for both Federalists and Anti-Federalists (though Federalists worried about it more) was that Congress was most likely to become tyrannical because a) it was the only branch that could make laws, and b) it was the branch that the people had direct control over (remember that the Electoral College takes precedence over the popular vote in a presidential election, so electors chosen by the few, and not the common people, ultimately decide, to this day, who becomes president). The House was particularly troubling: the Constitution proposed that each state have two Senators, but the number of Representatives would be based on population, and was bound to soar past the number of Senators. Even in 1787 it was very clear that one day the U.S. House would have hundreds and hundreds of members. The House, therefore, was most vulnerable to becoming tyrannical. It would be the largest branch of government, and it would be directly elected by the people, who would never agree to its power being checked because that would be their power being checked.

So the Congress was divided in a way that satisfied the people’s demand for direct representatives (House) but also allowed a smaller body (Senate) the power to overturn House rulings. Bills generally originate in the House and then go to the Senate. The entire House might approve a bill, all 435 Representatives might vote yes, but if just two-thirds of the 50 Senators vote against it, the bill is dead. The people’s voice is heard in the House, but the voice of that educated elite, the most virtuous republican citizens who devote themselves to public service, ultimately calls the shots.

The only way for the House to get its way is to—you guessed it—cooperate with the Senate, to check its own power and work out a compromise the Senate will accept. What keeps the Senate, then, from becoming the tyrannical branch? Bills don’t aways originate in the House, so when the Senate passes a motion that goes to the House and is rejected, then the Senate has to compromise. But since most bills do originate in the House, the more common way of checking Senate power is that Senators don’t want to be seen as always contradicting the people’s voice (as represented by the House), and so will find ways to compromise with the House rather than constantly shoot it down.

With the Legislature divided and set in competition with itself, the fear that the Congress, especially the House, would become tyrannical was allayed. With its basic structure out of the way, now we can address the question of how the House and Senate would be composed so that they would fairly represent the American people… and what the definition of “the American people” should be.

Trump, protest, and being “fair”

In the days since the election, we’ve heard a few consistent messages:

—We need to come together and support Trump because the peaceful transfer of power is crucial to our democracy;

—We need to put aside our differences and unite as a nation;

—We need to acknowledge the other side and not automatically assume that anyone across the political aisle is evil.

The real issue at the heart of these three messages is relativism: there is no absolute, objective truth, like “Trump is bad” or “Democrats are good”. We have to support Trump’s election because accepting him, relative to the chaos that the failure of a peaceful transfer of power would bring, is necessary.We have to give every argument a fair hearing. One man’s meat is another man’s poison.

We’d like to challenge this relativism. One senses that many Americans would like to challenge it, feeling that there is something different about this situation, that rejecting Trump is not just petty party politics but a way to take a stand for justice. They are right.

What is our basis for saying this, our objective truth? Well, in this context, there is only one objective truth to turn to. We are Americans. We were educated so that we can understand how our government was framed, how it is supposed to work, and what its goals are—both literal, as in what tasks it is supposed to perform, and more figurative, as in what impact it is meant to have, what kind of nation and people it is meant to create.

Our federal government, as described in the Constitution, was created to balance power between three branches of government. Two of those branches are representative, in that we vote people into their offices. The judiciary is appointed by our representatives. The executive branch handles foreign policy and is the commander-in-chief of our armed forces. The legislatures creates laws. The judiciary reviews laws to be sure they are constitutional, and amends or invalidates laws that are not.

Our Constitution states that the goal of our nation is to offer liberty and justice to all, and to protect citizens’ right to life, liberty, and the pursuit of happiness. It says that we can only protect those rights for all if we offer them to all (that took a few amendments, to extend those rights to non-whites and women, but it got done). It says, in the Bill of Rights, that we have immense personal liberty to worship as we please, speak and write as we please, and generally do as we please—so long as we do not infringe on someone else’s rights by doing that. It’s a balancing act in which our right to liberty is checked by other’s rights to liberty.

Fulfilling these terms has led our judiciary and Congress to pass laws guaranteeing equality of opportunity; laws that give every American as level a playing field for success as we can, through public education that is mixed and equal, through sexual harassment laws, anti-discrimination laws, and more.

These are the objective truths of American government, our Constitution, and our goals as a nation.

Therefore, these are the standards by which we must measure any U.S. citizen. We judge presidents by them, we judge members of Congress by them, we judge state and local officials by them. We judge news outlets and social organizations by them.

And so we must judge Trump by them. When he says he will punish women who have abortions, when he says natural-born American citizens whose parents are not from the U.S. are biased and unworthy to serve in public office, when he says he doesn’t know if the Ku Klux Klan is a hate group, when he says he engages in sexual assault, when he says he will get rid of governmental organizations like the EPA that keep our air and water safe because they hurt big business—in all these cases, he is violating our principles of government and the goals of the American nation.

When his supporters say, as we heard many say over the past weeks and months, that a vote for Trump is a vote for the “angry white man”, and for white supremacy, they are violating liberty and justice for all. When his supporters say Muslims should not be allowed to live in America, they violate the First Amendment.

And most of all, when his supporters say what they want most is for Trump to destroy the federal government, they are striking at the very heart of our nation.

So there is an objective reason for Americans to oppose Trump. He opposes America.

Peaceful transfer of power is important in a democracy—but we have to put the democracy first. We will peacefully transfer power to Trump, but we will not peacefully give him the power to destroy our democracy once he is in office. If all we preserve of our democracy is transfer of power, we don’t really have anything left.

We do not need to come together and support Trump. We need to come together to do what we can to oppose him when he violates our Constitution and our laws and our heritage, and support him when he does not.

We cannot put aside our differences with those who would destroy the American way of life as expressed in our Constitution and system of law. We have to try to get them to see the error of their ways, not say that their opinions are equally valid.

Anyone who wants to destroy this nation’s system of government  and commitment to liberty and justice for all is, in our opinion, either evil or extremely dangerous. They cannot be allowed to carry out their mission on the basis of “fairness”. This is not a question of which political party you belong to. It’s a question of whether you hold the American commitment to liberty and justice for all dear.

This is the only objective truth we can call upon when discussing politics, the only way that does not degenerate into relativism. It’s the yardstick we must use as we move forward.

 

The Federalist Debate over the three branches of government

Hello and welcome to part 7 of what is becoming a monumental series on the Federalist debates that gave us our present Constitution. Rest assured that we’re closing in on the resolution of those debates, but for now, here we take a brief detour on the way to talking about how representation in the House and Senate was hammered out to discuss the three branches of government. (Again we are indebted to the powerhouse lectures on the Federalist debates of Dr. Thomas Pangle, UT Austin, for the flow of our series.)

The “three branches of government” is a phrase we all learn and know as Americans, and may be the one thing we all feel sure we understand about how our federal government works. There are three branches so that each can check and balance each other’s power. Ah, “checks and balances”—the companion to the three branches. No one part of the government can become too strong with this system.

But this is not really very intuitive. Why would one part of the government become too strong in the first place, and if all three branches are able to interfere with each other, why don’t you just get chaos? How can one branch operate if the other branches can check its power?

The Anti-Federalists were aware of this conundrum: checks on power is actually a kind of sharing of power. Why do the powers of the three branches overlap, Anti-Federalists asked? Why can the Executive (President) legislate with veto power, and act judicially with the power to pardon criminals? Why is the Legislature (Congress)  given judicial power to impeach the Executive? Why can the Legislature take on Executive power by giving the president “advice and consent” on treaties and other foreign policy, and by approving presidential cabinet appointees? And why does the Judiciary (particularly the Supreme Court) have the legislative power to write new laws?

Why not just have each branch do its own work, the Anti-Federalists proposed, and if we parcel out the powers between the branches correctly, there will be no problem with one branch becoming too powerful.

The Federalist reply was, again, as it so often was, based on an understanding of human nature. Human beings, they said, are combative and competitive. You can’t group humans into three branches of government and expect them to remain separate but equal. Inevitably, one branch will want to be the most powerful. Balance is very hard to achieve; that’s why you need checks. And the way to create real checks is to allow the branches to share some powers, to overlap in some ways, so that they must cooperate with each other sometimes. Knowing they have to cooperate with each other will be a counterbalance—or check—on the competition between the branches. To keep one branch from becoming all-powerful, the other branches have to have an inside track on it, some way to check its power. If the President didn’t have veto power, the Executive would inevitably become subordinate to the Legislature, as Congress would be able to ignore what the President wanted and duke it out with the Judiciary alone, because only the Judiciary would have the power to overturn laws. If Congress didn’t have the power to impeach the President, and the Judiciary had no way to check presidential power, then the Executive would begin to be dominant, and the president would become a tyrant/king.

As Madison puts it in Federalist Paper 51:

But the great security against a gradual concentration of [power] in [one branch of government], consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But 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 external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other — that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.

In short, one of the ways in which the new American republic was new and innovative was that it did not rely on having a perfect citizenry or government filled with republican virtue. The new American republic would work with human nature to better it. Instead of constantly trying to avoid conflict, our government would welcome it. If the very structure of our government includes, even depends on, conflict and competition between its branches, then the whole question of checking federal power is turned upside down: instead of having people outside the federal government (the states) constantly monitoring the federal government to make sure it’s not too powerful, and trying to reform the federal government from the outside to end its tyranny, the federal government will check itself. The federal government checks its own power by competing with itself, by having the three branches constantly making sure no one branch is too powerful. And as long as the three branches are functioning the way the Constitution says they should, they will not become corrupted and they will carry out the laws of the Constitution and we won’t have a problem with tyranny.

The key is that the Constitution as the Federalists proposed and wrote it laid out powers for the three branches that were fair and democratic. The only way the federal government could become tyrannical would be if its branches did not obey the Constitution. That would not happen, the Federalists said, with each branch being forced to obey the Constitution by the overlap of powers with other branches that would come down hard on each other if one started to get too powerful. No one branch’s members would sit back while another branch got more powerful. Thus constant competition means constant checking of power which means constant obedience to a just Constitution.

Dividing the Legislature into two bodies, the House of Representatives and the Senate, was an example of this. The biggest worry for both Federalists and Anti-Federalists (though Federalists worried about it more) was that Congress was most likely to become tyrannical because a) it was the only branch that could make laws, and b) it was the branch that the people had direct control over (remember that the Electoral College takes precedence over the popular vote in a presidential election, so electors chosen by the few, and not the common people, ultimately decide, to this day, who becomes president). The House was particularly troubling: the Constitution proposed that each state have two Senators, but the number of Representatives would be based on population, and was bound to soar past the number of Senators. Even in 1787 it was very clear that one day the U.S. House would have hundreds and hundreds of members. The House, therefore, was most vulnerable to becoming tyrannical. It would be the largest branch of government, and it would be directly elected by the people, who would never agree to its power being checked because that would be their power being checked.

So the Congress was divided in a way that satisfied the people’s demand for direct representatives (House) but also allowed a smaller body (Senate) the power to overturn House rulings. Bills generally originate in the House and then go to the Senate. The entire House might approve a bill, all 435 Representatives might vote yes, but if just two-thirds of the 50 Senators vote against it, the bill is dead. The people’s voice is heard in the House, but the voice of that educated elite, the most virtuous republican citizens who devote themselves to public service, ultimately calls the shots.

The only way for the House to get its way is to—you guessed it—cooperate with the Senate, to check its own power and work out a compromise the Senate will accept. What keeps the Senate, then, from becoming the tyrannical branch? Bills don’t aways originate in the House, so when the Senate passes a motion that goes to the House and is rejected, then the Senate has to compromise. But since most bills do originate in the House, the more common way of checking Senate power is that Senators don’t want to be seen as always contradicting the people’s voice (as represented by the House), and so will find ways to compromise with the House rather than constantly shoot it down.

With the Legislature divided and set in competition with itself, the fear that the Congress, especially the House, would become tyrannical was allayed. With its basic structure out of the way, now we can address the question of how the House and Senate would be composed so that they would fairly represent the American people… and what the definition of “the American people” should be.