Sovereign v Government

The Separation of Powers

The headline in the Washington Post charges, "Hill's Micromanagement of Cabinet Blurs Separation of Powers." The article relates in fair detail the manner in which the Congress imposes its will upon the executive by writing instructions for carrying out the law into the law, mainly appropriation law. The piece written by David S. Broder, in the Sunday July 25 edition of the Washington Post, then explains that much of this micromanagement arose because of the defiance of the Nixon, Reagan and Bush administrations in disregarding the wishes of the Congress. Nixon incurred the wrath of Congress by impounding funds. He acknowledged that the Congress had appropriated the funds, but he asserted he was not going to spend them. Reagan had an Attorney General, Edwin Meese III, who told a Congressional committee that if President Reagan thought a law was unconstitutional, he did not have to pay any attention to it. George Bush issued executive orders that promoted anti-abortion activities, and other contentious issues.

The Congress had short and swift answers to all these contentions. More laws, with greater detail as to how they were to be executed. Congressional micromanagement came into being because a number of Presidents did not want to, "take Care that the Laws be faithfully executed," in accordance with their Constitutional oaths. Bad faith and cross purposes produced an environment of mistrust leading the Congress to exercise its oversight function more intrusively and in greater detail. The only remedy for this situation is to promote a climate of trust between the legislative and the executive branches.

The hallowed principle of the "separation of powers" is not being violated here because the principle of the separation of powers does not apply to the various parts of the Constitutionally established Federal government. The parts of the Federal government are dependent and interrelated It is obvious to any one who reads the Constitution that the greater power is vested in the Congress with it's power of the purse. No other branch of government is immune from Congressional intrusion for good or bad. The Congress can define the jurisdiction of the Supreme Court and impeach the President or Supreme Court Justices. Neither the President or the Supreme Court Justices can directly interfere with the Congress without the Congress' permission. Declaring a law unconstitutional—judicial review—is a usurped power which Congress could eliminate by statue if it tired of it. Congressional control of funds should eliminate all doubt about the separation of powers.

The separation of powers as it was discussed and debated by the Framers of the Constitution had to do with a far more important and potentially explosive issue than the distribution of authority among the several parts of the Federal establishment. James Monroe 1758-1831, in a powerfully convincing essay called, "The People the Sovereigns, "Monroe, James, J. B. Lippincott and Company, Philadelphia, 1867, republished by James River Press, Cumberland, VA 1987, leaves no doubt that the great threat to democracy and our republican government is the convergence of power upon the sovereign. The beginning evidence of this convergence, in our time, is the imperial presidency were presidents and their supporters misconstrue the presidential role and attempt to endow the president with aspects of sovereignty. Monroe thought it extremely dangerous for the power of the sovereign and the power to govern to be held by the same person or persons. The separation of powers then is the separation of the power of the sovereign, from the authority to govern. Monroe discusses democracy in Ancient Greece and Rome where the power of the people and the authority of the government were one and indicated how and why they failed and were replaced by authoritarian governments.

Madison's successful efforts to have the Constitution ratified by the people of the United States provided the initial impetus for the separation of powers. We the People ratified the Constitution, and, by so doing, delegated authority to govern to our elected representatives. We the People hold the sovereign power. Our elected representatives govern in our name. Monroe thought that only the people could be a suitable sovereign, provided they delegated the authority to govern. For him that was the republic.

The monarchs of Europe provided ample evidence of the short comings of the reins of government being in the hands of a sovereign monarch. The English Civil war was the culmination of one such experiment. The American, French, and Russian revolutions, the culminations of three others.

The Constitutional Convention debated two other forms of selecting the president before agreeing on the electoral college as the least threatening of the three choices.

The first was the direct election of the president by the people. This was deemed too dangerous because of the concept of the people as the mob and the likelihood of the election of the president by the mobocracy. We have seen in the elections of Nixon, Reagan, and Bush the successful appeals to the mob in the form of racism, patriotism, and abortion, school prayer, and the like. The Framers fears were not unfounded. Our system of elections may pose the most severe threat to our freedoms than any other aspect of our national life.

The second proposal for the election of the president was for the House of Representatives to elect the president from among their members. This would have been the most republican form of presidential election since the president would have been elected by the only group in the government elected directly by the people. Again the people were thought to be too close to the process with the possibility of the "people as the beast," rearing its head.

The third option, the one that was chosen, was to provide for the election of electors, chosen by the people but who would be free to exercise their independent judgement in the selection of the president. The fact that they all knew that George Washington was going to be the president gave them great comfort in their decision.

The false notion that the separation of powers applies to the Federal government provides the dangerous basis for the imperial presidency. The president is not the the sovereign, nor should the president ever become the sovereign or have any sovereign powers. The president is the servant of the sovereign. The president is not elected by the people nor should he be since a direct election of the president would simply make it possible for the magnates to buy the presidency cheaper than they buy it now. The only way to overcome the extreme parochial nature of a seat in the House of Representatives is to make the Representative responsible for the election of the president. It is the only way for the politics of the Congressional district to be translated to national politics and the only way to get the voters in the Congressional district to understand that they influence national affairs. Voting for the president and being aligned with the ruling party is the only way that local politics can be transcended, making it possible to hold a government accountable when it fails. In the United Kingdom the powers are separated when the Queen delegates the authority to govern to the House of Commons. The Commons are her subjects and they govern in her name. The people of the United Kingdom are subjects the Queen is the sovereign. We might have had a king but for the presence and character of George Washington. Thanks to James Madison we have the citizens sovereign.

Under the separation of powers doctrine the people must be absolutely unencumbered in the exercise of their sovereign power as long as the authority to govern is delegated to elected representatives. What this means is that all impediments to the sovereigns' free exercise of the vote must be swept aside as contrary to the separation of powers. Such power is Constitutionally established since the Constitution says, We The People do establish and ordain the Constitution. That simple statement captures the essence of the separation of powers. The people establish and ordain the Constitution, that's one job and that's the job of the sovereign. The people elect representatives of the people to govern. That's the second job. The elected representatives do what the Constitution tells them to do in running the government with authority delegated by the citizens sovereign. The preamble to the Constitution tells us why we have formed this particular government, under this Constitution: perfect the Union, establish, Justice, insure domestic Tranquility, provide for the common defence, promote the General Welfare, secure the blessings of Liberty.

The Declaration of Independence tells us why we form a government in the first place and what principles we would adhere to should we form another one. The nation was first established under the Articles of Confederation (OS-1) They didn't work because they were not based upon the people as the sovereign but upon a collectivity of States. The sovereignty of each State was based upon the people of the State as sovereign, but there was no national sovereign. The result was a squabbling, dickering, ineffective Confederation. But a Confederation based upon the principles of the Declaration of Independence. Ineffective but well based. The Constitution (OS-2) and its amendments include the principles of the Declaration directly. What does the Declaration say? It says:

"We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That when any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness"

The declaration says why governments are established, what they are supposed to accomplish, and what to do about them if they don't do what they are supposed to do. The controlling idea is that the people make the government and can change the government. The basic function of government to secure to the people their unalienable rights. And all of this is predicated upon the simple notion that all men (persons) are created equal.

It is an easy concept to grasp. All you have to do is to consider what life, anyone's life, is worth, especially to them. Temper that notion with the fact that it is equity, ecological equity that is the great provider of happiness and you can readily see that all men are created equal relates to the unalienable rights and the happiness, contentment or sense of fulfillment they bring to each an every one that has them.

Since the United States was a relatively poor country when the Founders and the Framers did their work, they were not in a position to evaluate the impact of the wealth of the magnates on the well being of the republic. It seems hard to believe that a country of 260 million people can be manipulated by a few well placed individuals, but the history of the world is full of the details about how wealth and power are concentrated, not dispersed and how power corrupts. We had ample evidence with the "Teflon Presidency" of Ronald Reagan that the major print and electronic media of the nation could impose a self-censorship and collude to portray the Reagan presidency as halcyon, serene and untroubled when in fact it was seething with corruption and wrong doing.

The framers well understood the need to separate the sovereign from the government, abandoning the notion of a monarchial government for the United States. Their notion of wealthy magnates was the king and his minions. The corruption of power as power and wealth as power would have been embodied in the same individuals. The king and his minions. There was no need to think of separating power of wealth from the government since wealth as power would have been separated when the king as sovereign was separated. In the present day when the power of the sovereign is lodged in the people, the sovereign power is properly restrained. The people dutifully elect their representatives and not in any instance since the founding of the republic have the people as the sovereign abused their power on the scale of our national government. Distorted campaign financing is not a freedom of speech function as protected by the Constitution, but a separation of powers function. Distortions to confuse the citizens sovereign ability to cast a ballot violates the rights of the sovereign.

Wealth as power is not restrained as it affects the selection process for the election of the peoples representatives. We have seen a number of instances of this in recent years when for instance, H. Ross Perot can spend $200,000,000 and affect the course of an election, or when selected contributors contribute $250,000,000 of "soft money" to the Bush campaign in 1988.

For seats in the Congress, the PACs conduct a flesh market where candidates parade their wares to interested buyers. Elected Congressmen can appropriate monies contributed to their campaigns for personal purposes.

Immoral, dissolute, evil, iniquitous, profane, sinful, wicked, corrupt, un ethical, unprincipled, unscrupulous, base, debauched, decadent, degenerate, and depraved, are a few words that come to mind.

This is not a polemic against wealth. Wealth is a healthy normal part of a capitalistic society. This is an argument that says if it is wrong for the power of the sovereign and the power of government to be held by the same hands, it is wrong for wealthy magnates to compete for the power of the sovereign to alter the outcomes of elections out of proportion of their right to vote. Not only must wealthy magnates be restrained from influencing elections through inordinate contributions, no private funds should be permitted in elections for the representatives of the sovereign.

It is the duty and obligation of the citizens to be the sovereign and to elect representatives who will govern in their name. Any interference in the free exercise of the will of the citizens Sovereign is lese majesty. The citizens sovereign must have a totally-unencumbered right to vote, and elections must be conducted in such a manner that, any citizen can be a candidate. and that all candidates have a fair and equal opportunity to compete for the office.

An election is a job search. The citizens sovereign after examining the issues and hearing the job applicants is obligated to participate in the selection process by voting. The election delegates power from the citizens sovereign in the form of authority for the elected representative to govern.

We have had one person one vote since 1964, it's time we got one dollar one vote, the dollar check off on the income tax together with fines for not voting since the failure to vote should be a finable offense. No one is obligated to vote for the candidates on the ballot, but they must go to their polling place and vote present, at the least.

Lets get the separation of powers straight and come to understand that it relates to the very basis of our democratic society, not to the distribution of authority in the Federal government. Let's understand who the sovereign is and what role the sovereign must play to make our government work. Let's understand for what purposes and to serve what interests our government is organized. Let's separate the important problems from the trivial ones and make the republic work

...Ted Sudia...

© Copyright 1993
Institute for domestic Tranquility