Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Wednesday, June 23, 2004

Why Your High School Civics Class Was Wrong

When we were in high school, we all heard about the "separation of powers." The idea was that there were three branches of government with distinct roles and discrete powers. This characterization of US governmental structures is misleading.

Powers are not separated they overlap! The Framers intentionally devised a system in which each branch could interfere with every other branch. For example, the President is the chief executive but Congress has the authority (through its power of the purse, and power of impeachment) to monitor and constrain executive actions. Since the writing of the Constitution, this arrangement has evolved and matured into a complex network of overlapping powers. Congress has legislative, executive and judicial functions. So does the executive and so does the judiciary.

In theory neither Congress, nor President nor Court is above the law. In practice this is only guaranteed by the myriad of ways each branch interferes with the other. The "petty" politics of inter-institutional jealousy plays a vital role in guaranteeing our freedoms.

When one institution claims total supremacy over the others (as the Bush administration claims with regard to the war on terror and police powers - see posting re: torture and international law below), it is a threat to the foundations of American democracy and freedom. This sounds overstated but it is not. Many such threats have emerged over the centuries but in most cases, balance between the institutions was restored (Congress tried to dominate the Presidency post Civil War but this ended with TR; FDR tried to dominate the Court but was reigned in by Congress; McCarthy tried to ride rough shod over the executive branch and lost; Nixon expanded and abused executive power but was stopped by the Court and Congress). However, in most cases, years were required to restore the balance and repair the damage done.

5 comments:

The Law Talking Guy said...

"Separation of powers" means division of labor between institutiona and then checks and balances over the exercise of sovereignty by the government. It does not mean three sovereigns.

US West said...

LTG is right. The idea of checks and balances pretty much encompasses the notion of overlapping powers. Otherwise, there'd be no check or balance if there were 3 compeltely different, isolated branches. I taught government, I never taught it as you describe.

Raised By Republicans said...

Ah, perhaps I was accusing the wrong source when I blamed High School civics.

However, people do talk about seperations of powers as if they imply that one institution or the other has exclusive authority over a particular area - and Bush makes exactly this argument when he defends his exclusive and unconstrained powers as Commander-in-Chief.

I'm trying to point out that the argument Bush (and his apologists) are making while in line with the symantics of "seperation of powers" mantras from High School, is actually diametrically opposed to 200 years of American political law and practice.

The Law Talking Guy said...

My comment was meant, more or less, to echo RBR's comments. The Bush administration seems to think that separation of powers means exclusive powers for different branches WITHOUT checks and balances. All of us here seem to see that this is the flawed position of the Bush (II) administration.

Of course, with the "sovereignty" handover in Iraq, we all realize how little the Bush (II) administration understands about sovereignty. The word derives, incidentally, from the medieval Latin "supernus" meaning highest-and-with-nothing-above-it. As Benedict Anderson put it, sovereignty means that a state is free, and "if under God, DIRECTLY so." We are giving Iraq sovereignty in name only. Nothing is being handed over except (the Bush admin hopes) liability.

US West said...

Yes, I think we all agree. And I probably don't need to add much to it. But I will point out that in "normal" times, it is usual for the balance of power to sometimes shift among the three branches. Thus, the notion that Clinton "weakened" the presidency. Bush is overcompensating. What do you expect from a man who has said dictatorship is easier than democracy?