“…the habits of thinking in a free country should inspire caution, in those intrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.”
Continuing in the discussion of George Washington’s Farewell Address, he moves on to the topic of constitutional separation of powers. His warning, quoted in the passage above, predicts that the ideal of a democratically elected republic will collapse without a clear separation of powers. But what does this truly mean? How are powers separated and what role does this separation play in the protection of natural rights?
As constituted, the Federal government consists of three branches – executive, legislative, and judicial. Each branch is provided with very specific and enumerated responsibilities, i.e. laws originate in Congress, are enforced by the executive, and are interpreted by the judicial. There is, by necessity and design, some overlap of responsibilities between the three branches. For example, legislators are required to consider the constitutionality of laws prior to voting on them. Presidents also have some ability to persuade Congress to pass legislation that fits within his overall agenda, driven by his vision for the country at large.
This overlap of powers and authority has led to many difficult questions over the life span of the United States, particularly in recent years with charges of judges “legislating from the bench” and the creation of bureaucracies which enact rules and regulations that ought to be legislated, allowing the people to judge the worthiness of these rules and regulations.
This situation is currently being played out in the Environmental Protection Agency. As reported February 23, 2009 in the Wall Street Journal, the agency is beginning the rulemaking process regarding the regulation of carbon dioxide emissions. Regulation of these emissions, we are told, are required to combat global climate change. Such regulations would have serious impacts on the lives of ordinary Americans, including significantly higher energy and fuel costs, higher food prices, and the potential for millions of job losses. Because these regulations will be enacted bureaucratically, the citizens of America have no recourse to repeal them as would be the case if the regulations were legislated.
Perhaps it is these two aspects of modern American governance that are most disconcerting. While a president is only capable of advocating for or against certain policies, judicial activism and bureaucratic rulemaking are often capricious and arbitrary. Such a system will, over time, lead to despotism by “petty tyrants” and an erratic justice system in which outcomes are unclear and increasingly dependent upon judicial preferences. The end result of these usurpations are a loss of liberty by average citizens. Washington reminds us that this may be prevented through a proper, and properly maintained, separation of powers, saying:
“The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each of the Guardian of the Public Weal against invasions by others, has been evinced by experiments ancient and modern.”
What, then, should be done to prevent such appropriations of power? Washington recommends the following:
“If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way, which the constitution designates. But let there be no change by usurpation; [it] is the customary weapon by which free governments are destroyed.”
Washington’s point here is actually very simple – it is up to the citizens of America to be vigilant about preventing such usurpation. It is the duty of ordinary citizens to vote only for candidates who will uphold the constitution and, in turn, approve only those judges who will uphold the constitution and American jurisprudence.
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