Tuesday, October 2, 2012

Madison's Separation of Powers

“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.”--James Madison, Federalist No. 51

The last element of the constitution I’d like to examine is the relative separation or concentration of power. I wrote my thoughts on this issuelast month, and expressed my preference for highly separated power. I described how separated powers have the benefits of forcing deliberation, bargaining and compromise between rival factions, rather than enabling one to run roughshod over  the other. I described how too much power in the hands of too few people can be dangerous. But I also described how for certain tasks where time and flexibility are of the essence, it’s also important not to have too many cooks in the kitchen. A good constitution balances these factors by dividing some powers, but leaving others to the discretion of a single, fast-acting decision making body. How does ours measure up?

In principle, pretty well. The three-branched system of government that was Madison’s brainchild features an interwoven web of partial powers, with each needing some degree of clearance from other bodies in order to truly operate. It was the first of its kind, the first to separate power so completely and distinctly. Since most of my readers are familiar with American law I needn’t provide the full list of these checks and balances. But what’s equally impressive about Madison’s system is that it separates this power without impeding the government’s ability to make on-the-fly adjustments in its day-to-day operations. Although Congress makes the law, the executive bureaucracy can make whatever enforcement adjustments necessary to maximize the law’s effectiveness (within the scope of the law, of course…sometimes we have problems with that). Although Congress has the power to declare war, once they have done so the president maintains full authority as commander in chief of the military and can use his full discretion on how to wield the military. Sometimes the political process can get messy and bogged down; that’s unavoidable and sometimes beneficial. But in general, it’s more than flexible enough to function as a single unit.

However, history has exposed some shortcomings with Madison’s model. Another function of the separation of powers is to prevent any one body from assuming more powers in practice than they have in theory, and in that regard most unbiased observers would say the constitution has come up short over the past century. The executive branch has seized far more power than any argue it was initially intended to have, and the other branches have been unable or unwilling to prevent these encroachments. For instance, the President no longer seeks congressional approval before engaging in blatant acts of war (referred to by another name) in other countries. He signs in “agreements” instead of “treaties” with other nations to prevent the necessity of Senate approval. He issues extremely loose “signing statements” or “executive orders” to turn his will into law without congressional authority. In this respect, Madison’s original design is failing to prevent the rise to dominance of one branch. And beyond the executive, the government as a whole now exercises far more powers than it is constitutionally allowed to, with the Supreme Court proving ineffective check on this growth over the long term. Does this mean Madison’s separation of powers has failed?

Well, yes and no. I’m not prepared to call his idea a bust for two main reasons. Firstly, if it has failed, it did so almost 200 years after its conception! That’s a mighty long shelf life. Madison certainly never expected it would hold up as long as it did; for the time frame he imagined, his system worked wonders. Besides, it’s still not dead just yet; the branches still do maintain some check on one another’s power, even if that check isn’t as strong as it used to be or was intended to be. Secondly, Madison also provided the people with a means of correcting whatever shortcomings they found in his design by means of constitutional amendment. If there exist ways to tinker with the system to fortify these checks, and we the people take advantage of them, his system might save itself. And even short of an amendment, it’s not like we haven’t had avenues of recourse to prevent, delay, and slow this growth of power. We’ve simply failed to take advantage of these legal courses. The watchdog was sleeping. That’s hardly the fault of the document itself, because all any constitution can possibly do is provide the ability to constrain government. The people need to actually do it.

Ultimately, a piece of paper cannot constrict government activity unless there are people willing to follow the instructions on it. Ultimately, we can only blame ourselves for failing to keep watch on our elected politicians. The British also had a constitution outlining the rights of man; it just wasn’t adhered to, because the King did as he pleased. Madison understood this and recognized that without some means of keeping the government in line, the enumerated powers system would not be followed. The three-branched system was his best shot at doing that, and for almost 200 years it did a pretty fine job. Today, politicians have invented all sorts of innovative ways to bypass this system and get their way, but powers are still more separated in America than they are in most other countries.

In conclusion, the US constitution’s division of power was brilliant for the times in which it was introduced, and it’s still plenty serviceable today. It might be made even better for future generations if the proper changes in attitude and policy are adopted. For making the system of checks and balances a celebrated part of American public life, and for providing the means to continually hone and refine that system, Madison’s finished product deserves high marks.

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