Topic: Government Accountability
Toward a Greater Separation of Power The current system of checks and balances between the three branches of government has broken down. I have an idea for what we can do about it.by Billy Joe
(libertarian)
Friday, January 2, 2009
It should be obvious to anyone who is paying attention that the American system of government has broken down. The checks and balances of the three branches of government have failed to check and balance and the growth of state power has not only continued, but accelerated. Government spending has increased as a percentage of national economic activity to the point where the risk of default or hyperinflation approaches a mathematical certainty. Supreme Court Justices and legislators are biased toward increasing presidential power because, among other reasonst they draw their paychecks from the Executive Branch Department of the Treasury. Personal freedom has diminished to the point where we actually celebrate the ability to choose between despot A and despot B the way a condemned prisoner might be grateful to choose between death by hanging or firing squad.
The reason why I am so concerned about the usurpation of power by the Executive (and to a lesser extent the Judicial) branch is that the effect is a transfer of power from the citizenry to the government as a whole. Only Congressmen and senators are directly elected by majority vote. The president is selected by the Electoral College and the justices and judges of the federal courts are nominated by the president. The legislature is the branch of government most accountable to the people and it is the branch that has yielded it's authority to the other branches. Among other things, it has lost much of its authority to make war, negotiate treaties, and control spending.
Many patriotic Americans will argue that, although the system is imperfect, it is still better than many alternatives. I actually agree with that claim, but that doesn't mean that the current state of affairs is acceptable. A failure is a failure, regardless of the degree to which it is preferable over worse failures. Having herpes is wonderful compared to having AIDS. House arrest is better than prison, but the domicile we are confined to is starting to look more and more like a penitentiary every day as the cage's gilding loses its luster. Considering the rate at which our less-than-ideal situation is deteriorating, the "it could be worse" defense is particularly unconvincing.
The central weakness with constitutional government is the government's ability to use its rule-making power to modify the rules that limit its power. This is accomplished through constitutional amendments, presidential signing statements, judicial review, judicial activism, selective law enforcement, and other legislative tricks. In the U.S., this has meant that, in just over two hundred years, the government has morphed from a relatively benign force of minor inconvenience into a near-omnipresent leviathan that interferes with almost everything we do. It may not be totalitarian yet, but it is clearly headed in that direction. In order to arrest and reverse this descent into servitude, alternatives should be considered.
I propose that, instead of three branches of government, we adopt three (or more) completely independent and non-territorial governments. I make this proposal because it is not the concept of checks and balances that has failed, but the inadequacy of the particular system in place that is the source of our problems. I know this is a radical proposal, but no more radical than the constitutional republic that we live under now was when it was first proposed. A radical solution is called for because, in my opinion, attempts at incremental reforms have been no more effective than efforts to liberalize the mafia or the Ku Klux Klan would be. It is simply not in the nature of a territorial or monopoly state to relinquish its power or operate in a non-coercive fashion.
Considering how unusual non-territorial competing governments are, several objections spring to mind. I will address a few of them here.
1. Isn't a known but flawed system preferable to an untried solution?
In fact, a system similar to that which I propose lasted for 300 years in Saga-era Iceland, which is longer than our current experiment in democratic republicanism has been running. Actually, as drastic as my solution admittedly is, when looked at another way, it is not so radical. People have the option of changing governments today by moving. I am merely suggesting we extend that same option to those who choose not to relocate. By increasing the ease at which we could switch governments, they would be forced to become more responsive or risk losing their subjects (and tax revenue).
2. Wouldn't a lack of a strong central Government invite invasion?
It's true that a group of non-territorial governments would be less able to protect us from foreign and domestic threats, but the upside of that limitation is that the governments themselves would be less threatening both domestically and abroad. The attacks on Pearl Harbor and the World Trade center killed thousands, but not nearly as many as the Washington policies of slavery, the draft, Indian eradication, and Jim Crowe. Protection from government is at least as important as protection by government, and a decreased ability to prevent attacks is a decreased ability to aggress against other nations and consequently a decreased likelihood of provoking attacks against us.
3. What's to keep anyone from just choosing no government and stop paying taxes altogether?
Most people would still prefer to choose a government for the same reason most people now prefer to buy food rather than growing or raising their own. In economics, the phenomenon is known as Specialization. Nothing would absolutely prevent anyone from opting out of collective government altogether, but the benefits of specialization would encourage most to retain the services of a government at the same time such an arrangement would ensure that the governments would provide services equal to or exceeding the tax revenue they collect (otherwise, they would go out of business).
4. Wouldn't having several competing governments be less efficient?
Some economies of scale would be lost by having several redundant governments, but the benefits of competition outweigh the benefits of monopoly. If governments were run more like private businesses, the incentives would be reversed. Currently, a state agency that does a poor job asks for and receives more funding, which effectively rewards poor performance. Alternately, private companies usually lose revenue or go out of business altogether when they perform poorly and they profit when they do well.
These objections are by no means comprehensive, nor are my responses to them. The purpose of this proposal is not to end discussion but to start it. Real world constraints require practical, not utopian, solutions. As time progresses and the failure of democratic republicanism becomes more apparent, this discussion will assume greater importance and the need for some kind of alternative will be obvious. In my pursuit of a solution to the separation of powers problem, I have drawn on the ideas of many others. I don't claim to have developed this idea on my own and in fact very little of it is original. My goal is not to challenge the ideals of the American Revolution, but to advance them beyond their current implementation. Liberty is a noble objective in itself, but it is also the surest path toward future prosperity.
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Posted By: Jahfre Fire Eater
Date: 2009-01-04 13:40:38
Hi Billy Joe,
I think your idea is interesting but you didn't describe a plan getting from here to there. Without a plan your proposal can only be evaluated as a thought exercise in which one has re-written the present and we now have such an arrangement. Poof....We have always had such an arrangement. We have 50 competing state governments. Yes, they are territorial but come on, the territories aren't prohibitively large or isolated to serve as an effective barrier to seeking a government more inline with your principles. Furthermore, I propose that returning government to more local control will additionally reduce the value of the non-geographic aspect of your proposal.
The problem today is that the states have relinquished authority to the feds and local communities are oppressed and regulated in to homogeneity. If our republic lasts enough I expect that will one day reverse course as the failures of the federal power structure and foreign policy are shown to be avoidable by states taking back their authority. A good first step would be the removal of the 17th amendment to restore one vital check and balance that liberals have nullified constitutionally.
I only offer one major criticism of your idea. It replaces one powerful federal government with 3 of them!
Ugh! This is an insurmountable obstacle for anyone who is dedicated to limited government with its inherent emphasis on local control. Empowering local communities to determine their own nature rather than having regulations imposed uniformly on every community by the State and the Feds will create far more diversity and choice for citizens than your proposal. Some towns would be Christian towns with Blue Laws and strict regulations on adult entertainment. Other towns would be liberal towns with extravagant taxes and innumerable government services and entitlements, abortion clinics and pornographic entertainment. Rather than moving from state to state a person could move from town to town so I can't count the non-geographic aspect as a relevant consideration. If life would be better for you over there, move there. I'm not in favor of making choice of domicile be a government guaranteed entitlement.
Aside from the relative merits of your proposal, I think it will be far easier to re-establish state authority than to adopt a brand new system of governance.
It should be apearant upon close inspection that what I have done is merely describe anarchocapitalism from a different point of view. Technically, if you use the standard libertarian definition of a state*, I am proposing three or more non-government entities to replace the state. They would all be substantially weeker because they would not have the power to compel obedience or collect taxes by force. Decentralization is absolutely a step in the right direction, but it doesn't go far enough, IMHO. I'd rather have small tyrants than big tyrants, but I'd also rather have no tyrants than small ones.
* the state is a group of people who claim a monopoly of force on a given geographical area.
As for how we get there, we simply have to convince a critical mass of people that all states are based on violence and the Non Agression Principle is the best moral code to live by. When enough people withdraw their consent, the state will wither away.
Do you believe in more of a Rothbardian position that we should first begin with a libertarian natural rights code of law or do you side more with David Friedman who says that the market can provide for establishment of laws and courts and that laws will vary in different areas of the country? The problem I see with the market deciding what the laws will be is that potentially a person could own property and live in an area whose laws are oppressive and violate the non-aggression axiom. I am more of a believer in absolute rights and tend to believe in Hans Hermanne Hoppe's Argumentation Ethics as proof that people have absolute rights to property and self ownership. I would only agree with a system of law that varies from place to place if it is possible for that person to choose their court or appeal their case to a private court of their choosing.
" The principle that the majority have a right to rule the minority, practically resolves all government into a mere contest between two bodies of men, as to which of them shall be masters, and which of them shall be slaves; a contest, that however bloody can, in the nature of things, never be finally closed, so long as Man refuses to be a slave." Lysander Spooner
A good explanation of politics from an 19th century Anarchist that holds true to this day.
The State always seeks to grow in size and strength. The Separation of powers does not keep the State in check as each group that comes to power alwasy seeks to expand its role. The State holds the monopoly on interpretation of the document(Constitution) which limits its powers.
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