Separation of Powersby
William L. Anderson
"Message to Teddy Kennedy: Look in the Mirror" In his various letters to new Christian churches, St. Paul decried the fact that many people preaching about Christ either were wrong or had bad motives. However, he added that he also rejoiced because at least the name of Christ was being preached. I think I had one of those moments the other day when reading about Ted Kennedy’s questioning of Samuel Alito during the latter’s confirmation hearings in front of the Senate Judiciary Committee. As Anthony Gregory has noted, Kennedy raised a number of important issues regarding the Separation of Powers doctrine and, specifically, the powers granted to the executive branch. Unfortunately, this line of questioning was lost amid Kennedy’s insistence on attacking Alito for membership many years ago in Concerned Alumni of Princeton. Whether Kennedy’s legal reasoning was simply another example of the boundless hypocrisy and shamelessness that dominates the Beltway culture is for others to decide. I have no respect for Kennedy and his ilk, but I do think he was right. Unfortunately, he has to look no farther than his own mirror to discover why the process of transference of power from Congress to the presidency continues. As Harvey Silverglate has so eloquently explained, the importance of the issue of separation of powers exceeds anything else that might have occurred in those hearings, and I am sorry that such a loathsome, hypocritical blowhard as Kennedy was the one bringing up, which means that other thoughtful people will not take his questions seriously. Beyond that, most people do not even understand the issue itself, and what has happened to this vital doctrine in the past century. Thus, I will present a small primer on how separation of powers became lost in the gravitation of power toward the executive branch. Most likely, no President of the United States has been perfect in how he carried out his duties, at least when it comes to violating the Constitution. Thomas Jefferson unilaterally purchased the Louisiana Territory from France (which helped Napoleon finance his European wars), and Andrew Jackson illegally began the process of evicting the Cherokee Indians from their homelands. However, no president in the 19th Century did more to eviscerate the Constitution than did Abraham Lincoln, something that has been well documented on these pages and needs no further explanation from me. Lincoln not only grabbed judicial power through his summary arrests and imprisonments, but also took it upon himself to steal Congress’ power to declare war by pursuing an undeclared war. That alone should have warranted impeachment. Following Lincoln’s war, however, the "super president" seemed to go into hiding, and most of the occupants of 1600 Pennsylvania Avenue – and especially Grover Cleveland – tended to be models of executive restraint. The balance between the executive, judicial, and legislative branches more or less righted itself, or at least performed somewhat as the framers of the Constitution had intended. The Progressive Era doctrines changed all of that balance. Beginning with the presidency of Theodore Roosevelt, power gravitated toward the White House. Progressives believed that legislative branches were wasteful and tended not to permit the kind of centralized power grabbing which Progressivist causes required. The best way for that to occur, they reasoned, was for the legislative branch to cede at least some of its constitutional powers to the executive wing. What TR began, Woodrow Wilson continued, and he became the most dictatorial president since Lincoln. (Of course, statist historians also include Lincoln, TR, Wilson, and TR’s cousin, Franklin, as the country’s "greatest" presidents. The worship of illegal power apparently is deadly and corrupting.) Wilson pushed the country into World War I, and the executive branch was able to grab powers that even Lincoln was not able to seize. The entire U.S. economy was effectively nationalized, with government running the railroads and many other formerly private operations. After Wilson, the country went back to a weaker president – which reflected the self-restraint of Warren G. Harding and Calvin Coolidge – but that changed with the progressivist Herbert Hoover’s election in 1928. As has been well documented, Hoover managed to push the country into the Great Depression through his many interventions, setting the stage for Franklin Roosevelt’s term in office. It was during FDR’s reign that the process of ceding power from the legislative to the executive branch reached warp speed. (How this was done and the effects it had are well-documented by Paul Craig Roberts and Lawrence Stratton in The Tyranny of Good Intentions.) Every Democratic member of Congress claims to be a "progressive." Every Democratic member of Congress proclaims worshipful allegiance to FDR. Yet, the real legacy of FDR was the demise of meaningful legislative power of Congress. Before FDR, legislation tended to be tightly written, and members of Congress were aware of the particulars in a bill. However, beginning with Franklin Roosevelt’s presidency, Congress quickly wrote laws at the behest of the administration, with people rarely knowing the full content of those laws. Furthermore, these new laws gave the executive branch vast leeway in how to interpret these laws, which stole power both from the courts and from Congress. The process continues today. The reviled Patriot Act was nothing more than a wish list compiled by lawyers from the U.S. Department of Justice who were tired of the Constitution getting in their way of investigating people and charging them with crimes. In fact, many of the most onerous provisions of the act were leftover requests from Janet Reno’s justice department, including the expansion of money laundering definitions. Keeping in the tradition of Congress during FDR’s New Deal, most members had not read the Patriot Act or much of the other post-9/11 and post-Enron legislation before voting "yes." The upshot has been an expansive criminal code in which federal prosecutors increasingly have become judges, juries, and executioners. Yet, I have never heard Ted Kennedy decry the vast powers of federal prosecutors. And, to highlight just how much Kennedy has bowed to the bureaucracy, he did almost nothing to fight his being placed constantly on the "no-fly lists" that kept him stuck at airports on more than one occasion. If Kennedy really did care about separation of powers, he would have been sponsoring legislation to rid this country of the corrupt and inept Transportation Security Administration. (Instead, we saw the ridiculous spectacle of Democrats during the 2004 elections taking credit for the creation of the TSA.) Furthermore, when he ran for the Democratic nomination for president in 1980, he did not run on a separation of powers doctrine, but rather called for a centralized economic dictatorship of price controls, tax increases, and other property seizures in what one could only call a domestic warfare state. Nor has his devotion to the New Deal waned in his later years; he specifically declared that his opposition to the nomination of Janice Rogers Brown to the U.S. Court of Appeals was based upon her criticisms of the New Deal. One cannot both glorify the New Deal and then call for a balance of powers between the three branches of the federal government. So, whenever you hear Kennedy invoking the name of FDR, Woodrow Wilson, and other Democratic presidents of the past century, he is giving homage to the men who were responsible for the destruction of the doctrine that he claims to cherish. This does not take away from the truth of the words he spoke in that brief, shining, and sane moment, but his actions do nothing but discredit him.
January
14, 2006
Copyright © 2006 LewRockwell.com |
Yet,
those of us who would like to see a restoration of the balance of
power within the U.S. Government owe Ted our thanks. He might not
be the right person to carry that torch, but at least he put the
match to it.