fbpx

The Real Ruling Authority

Americans are worried about the economy and jobs, about national security and safety from terrorism, about securing healthcare, about their children’s education. Lately I haven’t heard too many people talking about the problem of separation of powers. In fact, besides John Marini, Christopher DeMuth, Jonathan Turley, and a few other scholars and policy wonks, I haven’t heard anybody mention separation of powers as a topic of vital public concern.

Separation of powers is a little like the catcher in baseball—seldom the headliner, often forgotten by the casual fan but never by the pros who really know the game. (Like “Chooch” Ruiz of the Phillies, a great catcher and one of the most indispensable players on the team; but as part of the defense, he was never the center of attention like hitters such as Ryan Howard or Chase Utley.)

The U.S. Constitution does not contain the words “separation of powers” or “checks and balances.” Prior to the addition of a bill of rights, it didn’t even contain the words “freedom” or “rights.” This doesn’t mean that the Constitution neglected these principles; indeed, it is a document that cannot be understood except in light of its purpose to secure freedom and equal rights for all. To accomplish this, the Founders believed, the government must be limited in its scope, and this requires the separation of powers and accompanying checks and balances. Like catchers in baseball, these principles may not be the constitutional headliners but they are integral to the successful working of free government. Pull them from the game, and liberty loses its key defensive players.

Of the American Founders, James Madison is most known for advocating and elucidating the doctrine of separation of powers. If the powers of government are not separated and checked, Madison argued in The Federalist, all power will accumulate in the same hands, “whether of one, a few, or many,” and this is the “very definition of tyranny.”

This is precisely what has been occurring in America politics with the rise of the administrative state. Constituted by a huge, unelected and virtually unchecked bureaucracy that sits atop the two houses of Congress—and even perhaps atop the office of the presidency and everything else in Washington—the administrative state is like Mr. Bear Squash-You-All-Flat, who sits on and destroys the houses of smaller animals in the forest.[1]

Most critics of the administrative state agree on the problem: bureaucratic government is fundamentally inconsistent with the rule of law and the safeguarding of individual rights and liberties. Yet this bureaucracy has amassed a colossal extent of power in the United States, both politically and psychologically. When did this begin? How did it happen, what are the essential causes? Is there a remedy, and if so, of what does it consist?

There is no consensus among the critics of the administrative state on the answers to these questions. Must we despair, then, of rescue from this cold gray spirit that permeates our society, and which, according to Max Weber, will ultimately lead to a “polar night of icy darkness”?

Marini, more than many critics of the administrative state, has emphasized how Congress has abdicated its responsibility to legislate. Since the Progressive Era in particular, Congress—including members of both major political parties—has gradually and willingly handed power over to the bureaucracy, thereby undermining its constitutional responsibilities and severely damaging the nexus between the sovereign people and their elected representatives.

For many years now, Marini’s writings have led the way for others to contribute to the important critical work of assessing modern administrative government. As Marini lays out in his Liberty Forum essay and elsewhere, the 20th century Progressive movement, and especially its tutelage under Woodrow Wilson, sought to establish rationalized, administrative government in America, which Wilson and his followers fully understood meant destroying the Madisonian apparatus of separation of powers and its concomitant system of checks and balances.

Marini’s point is not only that constitutional government cannot be restored without restoring the practice of separation of powers, but that separation of powers cannot be restored unless Congress reclaims its primary task of legislating for the American public. This would require a sea-change in attitude for many congressmen and women, who for years now have been complicit with the other two branches in undermining the separation of powers on behalf of the advancement of the administrative state. As such, although Marini is not without hope, his sanguinity is probably more guarded than even the cautious Christopher DeMuth (see his 2015 Liberty Forum essay), and certainly less enthusiastic than the populist buoyancy expressed by Charles Murray in his latest work, By the People: Rebuilding Liberty Without Permission.

DeMuth may well be correct to argue that educational, economic, and technological improvements have increased the demand for a greater degree and range of government policymaking, at the same time that government’s ability to meet these demands has grown. When this is combined with the decline in congressional hierarchies that once disciplined and set practical limits on legislators’ practicable policy horizons, it is not surprising to witness the advent and growth of specialized legislation that substantially expands the scope and reach of government into the lives of individual citizens, business, and society. Further, according to DeMuth, technological advances, particularly in the realm of communications, have combined with the secularization and atomization of morality, society, and politics in such a way as to transform Americans’ expectations to demand results that the executive power is prepared to deliver, and which puts legislative representative institutions at a substantial disadvantage.

This has led to an unchecked executive and a corrupt, unresponsive government whose defects are largely responsible for the election of Donald Trump and the upheaval that may ultimately result in a revival of constitutionalism and return to the practice of separation of powers.

How are we to understand this view of the American people, whose expectations and ethos have created demands that have resulted in increased executive power and marked growth in administrative apparatus and regulation, but who will soon demand of their elected representatives that they tame the bureaucracy and reestablish the legislature’s representative task and constitutional purpose?

DeMuth’s analysis seems to leave open the question of whether “the people” are the victims or the perpetuators of the administrative state (whereas By the People leaves no doubt that Charles Murray considers them the victims). Marini does not call upon DeMuth to explain this seeming incongruence in his description of the character of the American people, but Marini does differentiate between the special interests and centralized media which have spurred increased administrative regulations, on the one hand, and the American electorate who voted for Trump, on the other.  The notion of the people as a check upon the undue expansion of governmental power is quintessentially Madisonian.

Madison’s conception of separation of powers as the fence of liberty was directly taken from the Baron de Montesquieu’s treatment of this subject in his magisterial work, The Spirit of Laws (1748). Madison understood Montesquieu to teach that the security of liberty depends on separating and checking the primary powers of government; this requires juxtaposing the interests and ambitions of government officials in order to achieve governmental equilibrium, thereby safeguarding the liberty of the constitution and protecting the rights of individuals. At the Constitutional Convention of 1787, Madison, as well as many other delegates, worked to incorporate Montesquieu’s principle of separation of powers into the fabric of the U.S. Constitution, and while the doctrine is never mentioned by name in the document, it is integral to its design of limited government.

Madison agreed with Montesquieu’s view that separation of powers is the primary defensive measure to ensure the liberty of the constitution and the rule of law, but he also went substantially beyond Montesquieu in regard to this prudential device: he envisioned separation of powers as a positive means to promote the formation of a deliberate and just public opinion. For Madison, the invention of prudence of separation of powers was more than a tool to prevent tyrannical government; it contributes to a design of institutional arrangements that promote the refinement and enlargement of the public views on the basis of justice and the general good.  The latter is of critical importance to Madison because separation of powers is an auxiliary means to control the government; a “dependence on the people” constitutes the primary control (Federalist 51).

For James Madison, the idea of a ruling authority in America must be derived from the people themselves. There can be no specialized rationalistic replacement for the people themselves; there is no substitute for the spirit that “animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government” (Federalist 39).  From the Madisonian perspective, the substitution of the administrative state is anti-republican; it is rule by a minority, and it is tantamount to giving up on government of and by the people.

John Marini’s emphasis on the roots of the theory of rationalized, administrative government in the Progressive Era is critical to understanding the profound depth of this problem. Indeed, the effects of bureaucratic bloat reach far beyond an increase in rules and procedures, paperwork, and pestering bureaucrats, The rise of the administrative state  means, ultimately, the slow and painful death of the American experiment in freedom and self-government.

There is no doubt that Marini is correct that the dismantling—the deconstruction, if you will—of the administrative state will require something akin to a Herculean effort and substantial reconfiguration of political alliances in America. The degree of boldness, courage, and sustained commitment this would necessitate—from political leaders and ordinary citizens alike—is hard to imagine, and even harder to believe will come to pass. It will depend, in the final analysis, on whether the spirit of “liberty for all” still sufficiently stirs in the hearts and animates the hopes of the American people.

[1] That is until, during one of Mr. Bear’s tyrannical escapades, the lower branch of a tree hits him on the head and he runs out of town, never to return again.  It seems to me that Morell Gipson’s imaginative children’s book is also a clever, thinly veiled story about the squash-effect of the administrative state.  For adults at present, however, the question whether the lower branch (as closest to the people) deserves the heroic status that the author awards it, has not yet been answered.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 23, 2017 at 10:07:31 am

"John Marini’s emphasis on the roots of the theory of rationalized, administrative government in the Progressive Era is critical to understanding the profound depth of this problem. "

Yes, that is "critical to understanding" the "depth" of THIS problem; but, is it sufficient to understanding the causal SOURCE of this problem? Is not understanding those root *causes* more important than understanding "roots of theory?"

Perhaps it is more important to understand how and why the federal government has come to *require* its current (unbalanced) forms of administration of functions than it is to understand how those forms of administration have come into being to facilitate (and dominate) those functions.

To begin that understanding, we should probably start by examining closely what has called into being what are now the many, many functions now legislatively assigned to, or otherwise ascribed to, the federal government.

Why is the federal government now a facility (or the provider of instrumentalities) to "do things?" Has this condition arisen, not from "Progressivism," but rather from the objectives of a populace to ameliorate personal burdens and responsibilities and acquire benefits, privileges and immunities ?

In considering the concept of a return to "Constitutionalism," in the light of what has transpired over the last 130 years, we might give some close attention to the "that was then, this is now" composition and orientations of the populace (as well as the factors which have shaped those orientations). Imagine the calling of a Constitutional Convention to "return to Constitutionalism." What would the delegates purport to accomplish for the populace? What would the populace want? Would the results be a reduction in functions? Would we still have a "purposive" (doing things) federal government requiring administration for the functions of the purposes? Is it at all likely that we would return to the original objectives (of a different populace, of different experiences, of substantial commonalities) in that "restored" Constitutionalism?

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on March 24, 2017 at 13:43:09 pm

One way to harmonize the "seeming incongruence" of which you speak is to understand the American people to be victims AND perpetrators of these developments. To my mind, there is substantial reason to believe that what has led to the election of Donald Trump and to a number of other, analogous developments is not some principled longing for a restored separation-of-powers, a concept of which I suspect most of the civics-deprived among the voting public have only the vaguest notion. Rather, the prevailing motivation appears to be more along the lines of, "I want, so where's mine?"

When Madison observed that "the substitution of the administrative state is anti-republican; it is rule by a minority, and it is tantamount to giving up on government of and by the people," he no doubt assumed that "the people" would react to this as something that is self-evidently bad. I fear that a different state of affairs described by Madison now prevails: "Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea."

I am increasingly led to suspect that today's restiveness will pass along soon enough once the bread-and-circuses are spread about in more profusion. Having been bribed with their own money, the American people will then slip into the Tocquevillian servitude that "compresses, enervates, extinguishes, and stupefies a people, till each . . . is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”

In other words, this is not a matter of government theory or alternative constructs. Instead, what we might well be seeing is evolutionary dysfunction in response to an inability and/or unwillingness of a people to take responsibility for governing themselves.

read full comment
Image of John Thompson
John Thompson
on March 24, 2017 at 19:05:04 pm

What a thoughtful and disturbing response from John Thompson! I am not saying you are wrong, only that I hope you are not right. I hope there is more grit to the character and spirit of the American people than you indicate is probably the case. Who we are and what we stand for -- our national character -- is constantly being shaped (just as it is for individuals): It is ever becoming more or less strong and independent, more or less decent, depending on our ideas and choices. The phenomena that influence our minds and hearts -- that form our habits and ethos -- always need tending. That is politics.

Are the people who elected Trump of a different ilk than those who have, for decades now, demanded more bread and better circuses? --Or do they just want a different change of masters? This is the critical question you raise. They will be the ones who influence substantially how the Congress, especially the House of Representatives, chooses to do business over the next couple of years.

John Marini is certainly right that the harnessing of the administrative state and the reclamation of some semblance of self-government, cannot occur without Congress (re-)stepping up to the plate. Whether the people who elected Trump will demand this of their representatives, or if such a demand upon Congress and the President will likely only result from a reorganization of political parties in America, remains to be seen.

It will be interesting to see the Trump voters' reaction to today's failure by the GOP to repeal and replace Obamacare. Having said this, I don't this this issue on this one day is telling. It is not over, and besides, there are much more interesting and critical measures on the near horizon, which the Trump administration doesn't seem to be particularly reticent or standoffish about taking on. Not least of which is a list of cuts to programs of the federal government, and therewithal, a start at dismantling the Administrative State.

Did anyone think that this was even possible two years ago?

read full comment
Image of COLLEEN SHEEHAN
COLLEEN SHEEHAN
on March 25, 2017 at 11:43:44 am

A brief prologue first –

Professor Sheehan:

"Who we are and what we stand for — our national character — is constantly being shaped (just as it is for individuals): It is ever becoming more or less strong and independent, more or less decent, depending on our ideas and choices. The phenomena that influence our minds and hearts — that **form our habits and ethos** — always need tending. THAT IS POLITICS." [ emphasis added]

That clause seems to recognize a role of human motivations ("our habits and ethos") and the importance of how they are formed. But is "Politics" the means of "tending . . . the phenomena . . . that form our habits and ethos;" or, are motivations initially formed and principally developed in family and close cultural circumstances?

Have there been significant cultural (and civil) changes in the motivations of the American public ( or significant sectors of it); if so, how and why – and are those changes the source of the changes in Politics, rather than Politics being a force in the changes in motivations?

Professor Sheehan"

". . . and therewithal, a start at **dismantling** the Administrative State." [emphasis supplied]

"Dismantling" may be a misperception of the installation of new ( or different) operating conditions for that selfsame Administrative State.

While there are still rumblings, it does not appear that there are strong forces to alter the functions assigned and ascribed to, the federal government which require "Administration;" and through their multiplicity have given rise to the Administrative State.

Taking a charitable view, those functions exist for purposes of attaining objectives; whose, and to what, ends are a separate subject; but, they all arise from MOTIVATIONS. So it is we return to the prologue and consideration of a more fundamental question.

Is there any indication from the recent political events that the motivations of the American public which have brought forth the assignment and ascription of the multiplicity of functions to the federal government which has, in turn, given rise to acceptance and passive consent to the establishment of the Federal Administrative State for execution of those functions?

It is more likely that motivations shape politics than that politics shape (or can shape or change) the motivations which have led to our current conditions.

There was general dissatisfaction that "nothing better" was on offer in our electoral politics. But there did not appear to be any strong preference for the discontinuation of the multi-function federal government, perhaps with some modifications to and improvements in operations of the Federal Administrative State.

Until fiscally infeasible, we are likely to observe a continuing demand for a government with purposes, executed through an Administrative State, responsive to diverse (and conflicting) public motivations.

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on March 25, 2017 at 11:56:52 am

Correction:

Is there any indication from the recent political events that *there has been a significant change in * the motivations of the American public which have brought forth the assignment and ascription of the multiplicity of functions to the federal government which has, in turn, given rise to acceptance and passive consent to the establishment of the Federal Administrative State for execution of those functions? -

*correction added

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on March 26, 2017 at 19:27:53 pm

Eschew prolixity

read full comment
Image of Me
Me
on March 27, 2017 at 13:44:44 pm

How else can one pretend to pedantry?

read full comment
Image of R Richard Schweitzer
R Richard Schweitzer
on March 30, 2017 at 14:53:10 pm

About the best forum I've yet read in LLL. What I really like about this essay is the way Sheehan encourages comparison of Marini, DeMuth, and that (comparatively neglected) Murray book. Greetings to her, and to Mr. Rossum also, from the Center for Constitutional Studies in Utah Valley! (On our website you find both of their talks on Federalism.)

read full comment
Image of Carl Eric Scott
Carl Eric Scott
on April 01, 2017 at 10:54:16 am

I am a Trump zealot, and a Wall Street 2%er among other personal attributes, 72 and cranky, with deep Obama Derangement Syndrome (also a self-styled originalist and
textualist, although, as I have read case law on legislative intent, decisional language offers that intent is to be examined only when the words are not clear, and related discussion)

I am new to liberty and law web site, enjoy it, have read many of the Federalist Papers, I like the ones useful for 2A, even though 2A did not exist when the FP were written, and I link US BoR to the English BoR, wherein personal guns for protection from government is core

I write to differ with your comments, in emphasis, and to offer a heresy
=
Summary of First Objection

(1) imho, the Administrative State, could be undone tomorrow, were Congress to undo the legislation, whose administrative implementation is so bothersome

(2) imho, if the executive, which nominally implements these implementations, were to direct the executive agencies to decline to implement, and while legislative language of the
form 'the executive shall execute...' is adverse to such declination to enforce, executive discretion includes de facto nullification

BOTH of these are amenable to the electorate's control

Second Objection, heresy

(3) The real tyranny is judicial review and judicial supremacism:

consider: 5/9 Black Robes, SCOTUS, or 4/7 if the denominator is shrunk by recusals or deaths, or 3/5 , and so forth

consider: The majority with independent and concurring options, (ie with concurring ie conflicting legal derivations), decide that the Electoral College is in conflict with 14A in that: 14A guarantees equal rights to --Americans/ citizens/ voters --chose one or more

and EC denies such 14A equality, b/c small states and large have TWO senators each, thus diluting the voting power of citizens in larger states to the benefit of those in smaller states

and likewise even the One Representative in the smallest state has more EC voting power than citizens in larger states

and voila, SCOTUS voids the EC, and then reverses the election and awards the 2016 prize to the popular vote winner HRC

( ie Bush v Gore updated to Clinton v Trump)

By laws of statutory construal:
-the recent prevails over the older, 14A is newer than the original articles, favoring Clinton and the popular vote
-the specific prevails over the general, favoring EC
-the proximal prevails over the distant, favoring EC

and then we have meta doctrine 'evolving social standards'

thus chaos

how to decide

but MORE

how to undo

judicial tyranny has NO democratic recourse,

=
so in relative risk, the judicial usurpation hallowed in FP and Marbury and 250 years, is more damaging to democracy than the amok legislature or executive

read full comment
Image of martin
martin
on May 08, 2017 at 20:10:24 pm

How is it legal for a free nation to allow a company like Lexis/Nexis to go behind a citizen's back, hire their neighbors, and infiltrate their neighborhood with over a dozen agents. Government complains when one of their people are unmasked. Well, this Reed/Elsevier Company went our doctors, people we do business in the marketplace, the local and state police and told them untrue allegations regarding me and my husband. Lies that our enemies told them, they believed and then repeated to everybody with which we contact and socialize. Private security has had us under surveillance on a daily basis for almost 12 years. They order agents to run pass, walk pass, ride bikes pass, and drive pass our house throughout the day, everyday. In a secret meeting congress approved this type of surveillance. This is America? You've got to be kidding!

read full comment
Image of Bonnie Mill Lemke
Bonnie Mill Lemke

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.