Separation of Powers – from the Thoreau Project

“Most men would feel insulted if it were proposed to employ them in throwing stones over a wall, and then in throwing them back, merely that they might earn their wages. But many are no more worthily employed now.”  Henry David Thoreau.

We often hear the phrase “separation of powers” referred to as coming from the Constitution.  But, like the phrase “separation of church and state” it does not exist therein.  Separation of powers is a succinct means of describing that certain powers have been delegated to different branches of government.  Even the phrase “checks and balances” does not appear in the Constitution.

Though also not in the Constitution my personal preference is “reservation of powers”.  The Constitution reserves certain powers and authorities to various branches of government.  In many cases those reservations give rise to the idea that there are checks and balances.  Yet, what is actually occurring is that each branch of governance in America is vested with an obligation and necessity to influence the outcome of government action from a different perspective.  Wow, that was a mouthful.  Let me expand on it to make it clearer, or less so in some sectors.

Particular roles are assigned to

1.  The Courts

2.  The Executive

3.  The House

4.  The Senate

This list shall expand..later.

The courts are to examine the legislative acts with the premise of preserving legislative intent.  Further, should laws enacted be questionable in veracity with respect to the Constitution, the Courts may decide.  There are others which need not be mentioned here.  The Supreme Court Justices are appointed for life, without prejudice.  However, that does not mean they are absolved from impeaching censure by the whole of the legislative branch.

The executive is to administer the laws as enacted by the entirety of the legislature.  The duty of enforcement is unquestionable and mandated.  The executive does not endear the right of selective enforcement or declining to expend the national treasure as dictated by the legislature.  Whereas the legislature enacts laws for the whole union’s good favor, the supreme courts adjudicates those laws, the executive enforces them.

In a word the defense of the good favor of the whole union rest with the executive.  Yet, the interest of the minority is preserved by the court.  This is a distinctive and valuable reservation of power.  Through this distinct impartiality of two branches of government both the whole union and the individuals are protected.  They do not check and balance one another, nor do they share a “balance of power”.  They hold a reservation of particular interest.

Congress is often thought of as one legislative unit, of which they certainly are.  The legislative branch is bicameral.  It has two houses with equal and combined power; to preserve the union first and to legislate second.  Yet, each has reserved to it particular duties.

The House has particular duties to represent the people.  It is reserved to them to exercise the interest of the people.  “The mass of men lead lives of quiet desperation.”  In that desperation masses men are occasionally persuaded to act in opposition to their best interest (I will refrain from commenting on our present set of circumstances).  Hence, we arrive at one role of the Senate.

Designers of the Constitution recognized that the masses could in fact be easily persuaded by ill-intended interests.  Their response was to establish a second house of the legislative branch with a reserved duty to use wisdom over whimsical impulse.  To accomplish this they comprehended that it was essential to have one legislative house absolutely NOT subject to popular interests.

The court jurists were appointed for life for the sake of perpetuity, to preserve institutional memory (among other reasons).  The designers wanted to ensure that short-run interpretations of the Constitution were not arbitrarily subverted.  The longest tenured role in the executive and legislative branches is in the Senate for similar reason.  Senators were meant to be judges of the fickle will of the people and directly elected representatives.  This needs one more expansion.  The Senate was reserved from quick change by the mass of the population subject to uninformed persuasions.  Hence, that is why they were to be selected by the state legislatures, rather than the people.  That is why they overlapped three-fold the Senate with the House of Representatives.  Their’s was a trust the state legislatures would select good and honorable men for the Senate.

Now, as noted above, there is another branch of government to which were reserved certain powers.  Article 5 of the Constitution preserves the integrity of itself through the reservation of the power of amendment to two-thirds vote of the state legislatures.  The fifth branch of the federal government is the most powerful and most relevant.  It is the independence of the States.

Article 5 articulated that distinctive role of the states.  The tenth amendment further stipulated, early in our history, that the states held a higher power than the national government, unless a power was articulated in the Constitution.  First, the Constitutional amendment process is subject to the states.  Second, one of the first amendment reiterates the rights of states over the national government.

“Every generation laughs at the old fashions, but follows religiously the new.”

The last reserved power which preserves the union is exactly as Thoreau said.  The designers wrote a Constitution designed to become old-fashioned.  Unfortunately, today we have laughing officials who hold religiously to new ideas.  When they succeed in laughing away the delicacy and integrity of the old guard, our Constitution, collapse of the remaining reserved duties and obligations is not far behind.

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