Separation of Powers Federalism and Election of Reps
At the end of the American Revolution, the fight to end the tyranny of the British Parliament and King George III, there was an understandable desire amongst the colonists to repeal the type of government which treaded on the rights of the governed. Fear of oppressive rule fueled the creation of a new and more radical form of government, resulting in the Articles of Confederation which was later to be replaced by the Constitution. Drafting the latter proved to be tricky as it needed to find the middle ground from the despotic rule of the British powers and the ineffectiveness and lack of power granted towards a central government from the Articles of Confederation. Culmination of previous models resulted in an intermediate: a national government comprised of three branches to carry out the powers expressly delegated to it by the constitution, and similarly composed state governments which were to assume the powers not explicitly given to the government on the national level. Though as the test of time has gradually yet vastly expanded scope of governmental authority, remnants of the original political practice is still on full display.
Drafters of the US Constitution were wary of man’s innate desire to control the lives of other men. Noting the successes and failures of past countries, they wanted to decentralize power enough to prevent a tyrannical rule, but centralize authority adequately enough to grant government the capacity to protect the rights of its citizens. Seeing as that governments tend to expand in authority at the expense of the rights of the governed, they decided to adopt the theory that separated the administrative powers of government into three branches of government.
Charles Montesquieu, a famous 17th century political philosopher, pointed out the importance of having legislative, executive, and judicial powers separated in which they can not override one another, be it by a sole branch or in coercion. Upsetting the balance between the three provides a gateway for tyranny as a single person or group of people may enact or enforce their will that may infringe on one’s liberties. The obvious implementation of this theory in our Constitution would be Congress, the Executive branch, and the Judicial branch. The objective of this seemingly inefficient way to enact legislation serves many functions. Public outcries and disputes often incentivise public leaders to have “knee-jerk” reactions and pass laws which exchange liberties of citizens for promised safety. A great example which was laid bare was the passing of the Patriot Act which infringed on many American’s rights, most notably the 4th amendment, in response to 9/11.
Another key purpose is to slow down the political progression and governmental expansion of the country. The New Deal, which was passed to combat the Great Depression, was borne out of people’s despair. Through the legislation, government assumed many new powers and greatly expanded the dependency of the people. As people were depending on the government for jobs, retirement, food, the economic freedoms of those who had to pay for these programs suffered. Where the government seemed to fail in its goal to protect the rights of its populus, the Supreme Court declared some of FDR’s acts as unconstitutional. While the checks and balances worked some, government is only as good as the people composing it.
Representation of states and citizens which inhabit them was originally demonstrated in the Constitution by the two legislative chambers that comprise Congress, directly resulting from the Great Compromise of 1787. Disputes over how much power was to be accredited to each state feared many due to worries of some states would be either under or overrepresented. Delegates from states such as Delaware were advocating for a more equal representation in the legislature, claiming that their needs will not be fulfilled due to the other states being greatly more populous. In contrast, the larger states wanted representation to be based off of population. The final product of the compromise was that there were to be a bicameral legislature composed of an upper and lower house, named the Senate and House of Representatives respectively. For the President to have the opportunity to sign a bill into law, it must first have the majority of both houses. The process makes it increasingly difficult to pass legislation. Either house or the president can gridlock the entire law making procedure making it lengthy.
With a large country with many several distinct cultures, the socioeconomic needs of one population of the nation is likely to differ from the rest. In order to represent the vast amount of different needs of the populus, the House of Representatives embodies members representing their district which contain roughly equal amounts of citizens.
While bills can originate in either the House or the Senate, taxes must first come from the lower house. Since revenue is ultimately raised by the people, it’s logical that they have a greater and more direct say than the states via the Senate. To try and circumvent some of the repercussions of enacting large tax rates, Tax Day has been conveniently placed on April 15th, almost exactly six months away from elections, giving time for people to forget the money taken away from them.
By its composition, representatives in the House are consistently up for reelection. With seats up for vote every two years, it is expected to see frequent flips in control. The framers decided that the continuous renewal of Congressman would give voters the chance to halt the lawmaking process should it be necessary. This gives voters the chance to prevent changes in the country that they do not like, instead of having to wait an extended period of time.
As a coalition of states, hence the name the United States, the founders thought it was fit to give them direct influence in the federal law making procedure. Due to the sovereignty of each state, they were each given two representatives which were intended to fend off the federal government from assuming powers given to the states and to withstand the political pressure arising from public outcry, or as Gouverneur Morris said it, “keep[ing] down the turbulence of democracy.”
The implementation of this is in the Senate’s fundamental design. Lengthy terms and the indirect election of the representatives were arranged in such that the democatic process would not interfere with the rights of the minority who don’t have strength in numbers. Aristotle noted that when Greece abided by direct democracy, the majority did what was best for the majority – not the whole.
Senators are elected once every six years, with one third of them getting re elected each midterm or presidential election. As the Constitution was intended to protect the rights of all people, especially when those rights were unpopular, the fairly long terms shields them from the public uproar due to despised decision making used to secure the liberties of those who do not have a larger vote count.
Legislators on the state level initially voted for senators to represent their state on the national level; however, the 17th amendment changed the election to a simple popular vote. With the reconstruction of the Senate, it is unable to fulfill its role in representing the state’s interest which has led to an expanding central government.
Although the anti-commandeering doctrine states that the federal government may not demand participation in its ambitions, the lack of representation from the states in congress has provided a loophole. All that is needed is to simply hinder the budget of states that do not comply.
The National Minimum Drinking Age Act of 1984 compelled states to raise the age to consume alcohol to 21 in fear of losing federal funds to build highways.
The absence of Senators acting on behalf of the state enables federal politicians to use their power to administer their agenda onto the states, in lieu of abiding to the forefathers idea that the national government would be extremely limited. Evidence of this is exhibited by the direct conflict of passed legislation and the Bill of Rights, such as the National Firearms Act and the Second Amendment.
The executive branch is comprised of a single person intended to sign bills into law. In Federalist No. 70, Alexander Hamilton expresses his views on the advantages of having a unitary executive, pointing out that having a sole person leading the branch would ensure that there is accountability, in a sense that a group of people (e.g. the legislative chambers), it is usual to have the blame of unpopular decisions dispersed out amongst the crowd. He also noted that a single executive will counter the painstakingly tedious process of getting enough ‘yeas’ to get bills passed. The term length of four years adds reliability to the government as there is not a national leader changing frequently.
The electoral college is the procedure in electing a new President. With each election, each state gets the sum of their Senators (two) and how many House Representatives they have in votes. With concern of a pure democracy degrading individual liberty, they sought to take away power from densely populated areas and redistribute otherwise. Thomas Jefferson made it well known that he was not fond of cities. He exclaimed, “The mobs of great cities add just so much to the support of pure government, as sores do to the strength of the human body.” Today’s large urban areas such as New York City and the bay area of California often advocate for more governmental control, even going as far as calling for Socialism. The parallelism unveiled highlights the founding fathers fears of what might have come if the nation took a more democratic approach. As the popular vote would encourage presidential candidates to focus their efforts on highly occupied regions, the electoral college shifts the attention to other areas such as the Midwest, or ‘flyover states.’
After FDR’s fourth term as president, the 22nd amendment was passed limiting the amount of time a person may be elected to the oval office to twice. The change to the constitution proved beneficial as FDR’s continuous presidency allowed him to outlive many members of the Supreme Court, allowing for the growth of government as the court allowed legislation to be passed that would have been shot down otherwise.
The president also has the power to nominate Supreme Court Justices with the advice and consent of a simple majority vote in the Senate. Seeing how the Supreme Court handles cases that dispute the interpretation of the constitution and interstate conflicts, the Senate’s approval is compliant with the Framer’s vision that a direct democracy is not always the best route. Should the House of Representatives have a say in the nomination, dilemmas between states would lie in the hands of the populus, rather than the states. Likewise, conflicts regarding the constitution are not to be determined by the people themselves as public opinion could dictate the legality of the rights of the minority. In the court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, a baker denied service to a homosexual couple who wanted a cake for their wedding. The Supreme Court sided with the baker on the issue, pointing to the function of the court. Should the case have been decided with a simple majority vote, the socially left-leaning position society has taken on the issue could have pointed to a different outcome thus infringing on the baker’s rights.
Lifetime appointments were designed to stagnate the political change of the nation. Lifetime terms allows for people of older generations to decide the legitimacy of newly passed legislation. This means that if new policies were put into place that became recently popular, then the Supreme Court could turn them down and the other branches would have to simply wait until the justices ended their term, or passed away freeing up a new seat. This was intended to spare the unpopular rights of those who were not in favor of the common viewpoints of the time. As America has become more authoritarian over the years since its conception, the Supreme court has slowed down the process. This is also in part to justices being free from the opinion of the public, much like Senators were. This was put into place so they could uphold the Constitution and debate laws that threatened its authority, even if it was against the majority opinion.
Under the guise of the executive branch, what many call the administrative state has come into existence free from the checks and balances put into place under the constitution. Birthed from FDR’s New Deal, the agencies have assumed the administrative powers of all three branches of government. It has expanded over time and can make rules of its own without any Congressional oversight. Some of the most notable are the Food and Drug Administration and the Environmental Protection Agency which are allowed under the law to come up with laws and enforce them free from external restrictions. This has led to a severe increase in the number of regulations, which in many cases prohibits freedoms and even job opportunities.
The regulations imposed are often quite absurd. The Department of Transportation with conjunction with the National Highway Traffic Safety Administration released The Federal Motor Vehicle Safety Standards; Minimum Sound Requirements for Hybrid and Electric Vehicles
(81 FR 90416) which dictates how little noise your car may produce. It states, “[cars are to] produce sounds meeting the requirements of this standard.” The imposed regulation depletes liberty without any accountability, as there is no election to vote out members of the administrative state. The unchecked power has led to the coined phrase, ‘The Fourth Branch of Government.’
The explosion of government authority is not without reason. Although the Framers of the Constitution did an excellent job at decentralizing power to prevent tyranny they miscalculated the dominance of political parties. Duverger’s law, the notation that voters are less likely to vote for third parties in fear that their second choice would lose to their least favorite, has created a bipartisan system where third parties are severely lacking behind, rarely even getting a single seat in Congress. James Madison thought that several factions would rule the nation and in their competition of power, they would be forced to form coalitions. As a result, he believed that fewer extreme policies would get enacted since coalitions would not support radical decision making that would often lead to the loss of rights for the people.
The advice George Washington gave to us to avoid political parties did not last long. There has almost always been two dominant political organizations which have been competing for power. The framers thought that the separation of the three branches of government would restrict itself in such that each branch would ward off the other two for encroachments of power. However, with different branches of government working for the same goal united through the party, influence of one branch has been expanded, as seen for instance with the administrative state. As a result the individual liberty and respect for the constitution has been undermined.
Despite the disappointing changes in the United State’s federal government, the checks and balances have succeeded many times in restraining its authority. Federalism has been degraded but there is still hope as three fourths of the states can agree to change the Constitution should they have permission from their state legislators. Simply put into words, P.J. O’Rourke claims, “The mystery of government is not how Washington works but how to make it stop.”