The Myth of Checks and Balances

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A Pernicious
Myth

One of the
most pernicious myths about democracies, and it pains me to say,
even constitutional republics, is the Myth of Checks and Balances.

Most of us
were indoctrinated with this myth in junior high school and high
school social studies class. I know I was.

According
to this myth, also known as the Doctrine of the Separation of
Powers, distributing the powers of a government among several
branches prevents the undue concentration of power in any single
branch.

As the Encyclopedia
Britannica explains:

[The
Separation of Powers is the] division of the legislative, executive,
and judicial functions of government among separate and independent
bodies. Such a separation limits the possibility of arbitrary
excesses by government, since the sanction of all three branches
is required for the making, executing, and administering of laws.
The concept received its first modern formulation in the work
of Baron de Montesquieu, who declared it the best way to safeguard
liberty; he influenced the framers of the Constitution of the
United States, who in turn influenced the writers of 19th- and
20th-century constitutions. See also checks and balances.

A Google
Images search for "Separation of Powers" yields dozens
of diagrams purporting to explain how the Doctrine of the Separation
of Powers protects us from government tyranny.

Google Images search: Separation of Powers

The Myth
Exposed

Unfortunately
political systems in the real world do not function as illustrated
in these diagrams.

Unfortunately
the division of the functions of government into legislative,
executive, and judicial branches does not prevent arbitrary excesses
by government.

Unfortunately
"separating the powers" doesn’t really separate the
powers, and doesn’t really result in "separate and independence
bodies checking and balancing each other."

The Separation
is Illusory, The Power is Real

The reason
why is not mysterious. The reason why is quite simple.

The reason
why "separating the powers" doesn’t result in separate
and independent bodies checking and balancing each other, is that
the separation is not real. The separation is illusory. The separation
is nothing more than wishful thinking.

In fact the
"separate and independent bodies" remain inseparable
parts of the same government, the one government, the only government
that the limited government, "minarchist" paradigm permits
within any given jurisdiction.

This government
perpetuates its existence by robbing individuals at gunpoint.
It refers to these acts of armed robbery as "taxation,"
as if calling its crime by some other name absolved it of guilt.

As an old
joke has it, "The only difference between the Mafia and the
government is a flag." The joke is funny because it is true.

Every member
of an organized crime family lives off the same protection money
extorted at gunpoint from hapless shopkeepers and working men
unfortunate enough to live within the crime family’s reach.

In what sense
can the bosses, underbosses, consiglieri, and soldiers of the
same crime family be considered "separate and independent"
from each other?

By the same
token, every official of a monopolistic state lives off the same
tax revenues extorted at gunpoint from hapless "taxpayers"
unfortunate enough to live within the government’s reach.

In what sense
can members of such a criminal enterprise be considered "separate
and independent" from each other?

Can we really
expect officials who are part of such a criminal enterprise not
to perceive each other as fellow predators, and us, the taxpayers,
as their common prey?

Can we really
expect officials who are part of such a criminal enterprise not
to perceive each other as members of the same pack of wolves,
and us, the taxpayers, as members of the same flock of sheep?

Can we really
expect officials who are part of such a criminal enterprise to
perceive each other as natural enemies and therefore check and
balance each other?

Resistance
against such a unified "crime family with a flag" is
virtually impossible. The proximate reason is that it has more
goons with guns. But the ultimate reason is that the overwhelming
majority of citizens in "advanced nations" believe they
can’t live without a monopolistic state, and their collective
behavior perpetuates its existence.

Citizens
who believe they can’t live without a monopolistic state are the
political counterpart of battered wives, who believe they can’t
live without their abusive husbands, and who insist that "deep
down" their abusers "really love them."

The difference
is that a battered wife who rationalizes away her husband’s abusive
treatment of her victimizes only herself.

Citizens
who believe in and demand the perpetuation of monopolistic states
victimize not only themselves, but also fellow citizens who know
better.


The
Godfather
(1972, directed by Francis Ford Coppola, written
by Mario Puzo)

Michael Corleone:
My father is no different than any powerful man, any man with
power, like a president or senator.

Kay Adams:
Do you know how nave you sound, Michael? Presidents and senators
don’t have men killed.

Michael Corleone:
Oh. Who’s being nave, Kay?

Why the
Executive Branch always becomes The Government

In theory,
a democratically elected president is merely the highest-ranking
official in one of three or more coequal branches of government,
the executive branch.

In reality,
in any monopolistic state with a presidential system, the president
is an elective dictator, the legislature is a debating society,
and the judiciary is a rubber stamp. Real world experience has
demonstrated that over time, the executive invariably co-opts
the judiciary and marginalizes the legislature.

In theory,
the coequal branches of government provide "checks and balances"
upon each other, preventing them from ganging up upon the individual
citizens they have sworn to protect and serve.

In reality,
because the executive is the branch that has been delegated the
power to "execute" policy (pun intended), it invariably
usurps any and all powers delegated to the other branches of a
monopolistic state. Real world experience has shown that "limited
government" inevitably morphs into unlimited government,
and that the executive is always the branch that winds up monopolizing
that limitless power. It makes no difference whether the executive
was popularly elected, self-appointed, or hereditary.

As George
W. Bush put it quite bluntly, "I’m the decider and I decide
what’s best."


The
Decider: Bush as Caesar


The
Decider: Bush as Superman, by R. Sikoryak

Baron de
Montesquieu was dead right when he noted that there can be no
liberty where the legislative and executive powers are united
in the same person, or body of magistrates or if the power of
judging is not separated from the legislative and executive powers.

James Madison
was dead right when he noted that the accumulation of all powers,
legislative, executive, and judiciary, in the same hands, whether
of one, a few, or many, and whether hereditary, self-appointed,
or elective, may justly be pronounced the very definition of tyranny.

Montesquieu
and Madison unfortunately, were dead wrong about how far mankind
would have to go to prevent the uniting and accumulation of all
powers in the same hands.

Montesquieu
and Madison earnestly believed that establishing constitutional
republics with tripartite divisions of powers would be sufficient.

Given their
historical context, Montesquieu and Madison’s failure to champion
market anarchism was understandable. The history of medieval Iceland
had been lost to mainstream political awareness.

Montesquieu
and Madison did not realize that only a market anarchist system,
featuring voluntarily funded Private Defense Agencies (PDAs),
vigorously competing against each other in the open market place,
could ensure a genuine separation of powers and provide genuine
checks and balances against tyranny.

A Thought
Experiment

To better
understand why the "separation of powers" doesn’t really
result in "separate branches of government" checking
and balancing each other," let’s try a little thought experiment.

Believers
in Big Government, particularly self-styled "champions of
democracy," love to portray government as a "public
service," and government officials as "public servants."

Market anarchists
know this is nonsense, but let’s pretend we buy this "service
provider" nonsense for the moment, and see where it leads.

Let’s say
for the sake of argument that government is a service provider,
and that the service it provides is the use of force, specifically,
a military to defend against foreign invaders, police to protect
against domestic criminals, and a court system to adjudicate legal
disputes.

Now suppose
that instead of military, police, and courts, the service or product
provided is computer software and software support services.

How many
netizens would accept an arrangement in which a single software
company, say Microsoft, would be granted a territorial monopoly
in the provision of computer software and software support services
where they live? In other words, no other company would be permitted
to provide computer software and software support services, only
Microsoft.

How many
netizens would be mollified by solemn assurances from founder
Bill Gates that Microsoft’s exclusive franchise would not result
in arbitrary excesses because the Microsoft corporation would
be divided into three "separate and independent" divisions,
each charged with different functions?

One division
would be in charge of formulating Microsoft policy. Another division
would be charge of executing Microsoft policy. Another division
would be in charge of verifying whether the Microsoft policy being
formulated and executed was in conformance with the Microsoft
company charter.

How many
netizens would trust such an arrangement to ensure that Microsoft
would deliver well-coded software at competitive market prices?

Wouldn’t
they scream their heads off, insisting that Microsoft as a de
facto monopoly is already sitting on its behind, doling out bug-ridden
bloatware behind schedule at exorbitant prices, and that as a
de jure monopoly it would be infinitely worse?

And wouldn’t
they be right?

See: What’s
so Bad about Microsoft?

So why don’t
they scream as loud or even louder about the government’s de jure
monopoly in the use of brute force?

After all,
Microsoft may be able to flood the market with overpriced, bug-ridden
bloatware, but it certainly can’t force us to buy it. It can’t
compel us to upgrade to Windows Vista upon threat of arrest and
imprisonment, at least not without favoritism from a monopolistic
state.

Contrast
this with so-called democratic governments, which have been empowered
by self-styled "champions of freedom and human rights"
to compel us to subscribe to its products and services – or else.

A Reluctant
Anarchist

I never wanted
to become an anarchist, even a free market anarchist. I wanted
to remain a constitutional republican in the tradition of the
French Physiocrats, the British Classical Liberals, and the American
Founding Fathers.

I became
an advocate of market anarchism reluctantly, after concluding
that the limited government "minarchist" paradigm simply
does not work as advertised.

Until three
years ago, around 2004, I still held out hope that Checks and
Balances would in fact check and balance, and that the Doctrine
of the Separation of Powers would be vindicated.

Political
evolution, or rather, devolution within the American Imperium
of Bill Clinton and George W. Bush; and within the Taiwanese kleptocracy
of Lee Teng-hui and Chen Shui-bian, disabused me of any such hopes.

The harsh
reality is that the Doctrine of the Separation of Powers, within
the context of a monopolistic state, is a contradiction in terms.

The harsh
reality is that as long as a nation is ruled by a conventional
monopolistic state rather than Private Defense Agencies, any allegedly
"separate and independent branches" of government will
always perceive themselves as integral parts of the same government,
the one government, the only government within any given jurisdiction.

No matter
how one attempts to divide a monopolistic state into "branches"
the reality is that all such "branches" live off the
same "tax revenues," better known as protection money,
extracted by force from "taxpayers," better known as
victims of extortion.

The Separation
of Powers was supposed to be the primary firewall between constitutional
republicanism and democracy. Tragically it has proven to be inadequate.
Given enough time, it burns right through.

Constitutional
republicanism is unquestionably superior to democracy. Unfortunately,
that’s just not good enough. Constitutional republicanism, given
enough time, degenerates into democracy, aka elective dictatorship.

Democracy
meanwhile, takes no time at all to degenerate into dictatorship.
That’s because democracy isn’t separated from dictatorship by
any firewalls whatsoever. That’s because democracy is a form of
dictatorship. It always was, and it always will be.


A
terrific political cartoon. But an even better caption would be:
"We think people should be separated from power so that they
can’t commit crimes."

It is high
time defenders of natural rights and individual liberty forsook
their irrational attachment to that discredited system known as
"limited government." Limited government never remains
limited. It always becomes unlimited.

As long as
a government, any government, wields a legal monopoly in the use
of brute force within a given territorial jurisdiction, that government’s
powers can never really be separate.

It is high
time aspiring nation builders began drafting constitutions predicated
on a system that truly separates the powers – free market anarchism.

March
2, 2007

Bevin
Chu [send him mail] is
an American architect of Chinese descent registered to practice
in Texas. Currently living and working in Taiwan, Chu is the son
of a retired high-ranking diplomat with the ROC (Taiwan) government.
His column, “The Strait Scoop” is published on his website, The
China Desk
.

Bevin
Chu Archives

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