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An Appropriate Tug of War
by
M. E. Boyd, Esq., “Miss Constitution”
It has come to the attention of Miss Constitution that certain Constitutional principles are not well understood by the public or by some of the public’s representatives. Part of the reason may be that these principles may seem counter-intuitive and part of the reason may be that we do not teach either our children much less our representatives any civics, history, philosophy, or economics. It takes many years to learn what is behind our system and its complexities – many, many years of study and thought best taught by non-ideological, careful, and honorable instructors.
What our Founders tried to come up with is a system of governance that creates enough government power to be effective, but not so much as to be tyrannical. This is a very difficult and delicate task, so the device devised to accomplish the goal is a mandated Tug of War known as DIVISION OF POWER and SEPARATION OF POWER. Here’s how it works:
- DIVISION OF POWER splits authority over the lives of American citizens and those living here between the national government and state and local governments. This concept is known as Federalism, and it is a knowledgeable and vigilant citizenry that makes sure the national government does not overwhelm local and state governments and institute national coercion and oppressive rule from the top down.
- SEPARATION OF POWER splits authority between functions of the national government – executive, legislative, judicial – and their overlapping and often duplicative exercise. “Checks and balances” is the mechanism used to carry out this Constitutional principle.
So, there are two healthy Tugs of War always operating in our system. One attempts to keep power local to preserve personal liberty for the People of the United States, and the other attempts to check over-weaning power by any one branch of the federal government. We know power corrupts so keeping it local helps minimize any corrupting influence on the whole social order and maintaining healthy and legal boundaries for any one branch of the federal government helps prevent excess that morphs into despotism. The Supreme Court, for example, can lose sight of required judicial restraint and instead of focusing on process (a proper function for an unelected judiciary) can begin to focus on results (a proper process for an elected Congress but not a proper function for the judiciary). Congress can lose sight of its stewardship of the finances of the nation and mire future generations with impossible debt and subsequent loss of liberty trying to pay it off. An arm of the executive branch can illegally and immorally target certain persons or groups and ruin their lives or leave them unfairly disgraced or even incarcerated for purely partisan political reasons.
So, Miss Constitution supports both Tugs of War where they remain healthy checks on corrupt power. Sometimes one branch of the federal government will deliberately transfer some of its power to another branch and then complain when it realizes that it has created its own impotence. This occurs regularly with Congress as it transfers power to executive regulatory agencies instead of legislating appropriately. Congress often transfers power to the judiciary by deliberately creating impossible pieces of legislation no one can read and letting the Supreme Court sort it out and rule on its Constitutionality. Congress is not supposed to do such a thing as it is transferring legislating to an unelected Court. A President, instead of embracing shared or overlapping power with Congress, sometimes simply bypasses proper process and conducts business through executive order or calls a binding treaty something else so as not to have to get the approval of Congress. On the other hand, the Supreme Court has ruled firmly that Executive Privilege is an important Constitutional principle and any President should invoke this privilege when Congress attempts to demand knowledge of a private Presidential conversation or advice given the President by confidential advisors. Franklin Delano Roosevelt would have fought back hard if any other branch of government had denied him the right to the private counsel of Harry Hopkins. These Tugs of War are settled either between the branches themselves or by the Supreme Court of the United States. That they go on is perfectly appropriate and can be a valuable check on misuse of power by any one branch of the federal government or excessive interference in what should be local matters.
So, the final question becomes, “How does one know whether a certain Tug of War is legitimate and healthy or malignant and improper; how does one know if it is being fought in GOOD FAITH?”
A very important question. One knows by having studied our system and by being a vigilant and knowledgeable citizen. One knows by having experienced the vagaries of human nature and the excesses to which human beings are susceptible. One knows by knowing the representatives of We the People are also human beings and subject to corruption as is each of us. The American public has made grave mistakes in choosing its leaders and it has paid a big price for these mistakes. In general, though, the public has a good eye for the fraud and a good nose for the putrid. Nothing can replace, however, in Miss Constitution’s view, the need for twelve years of rigorous public or private education in civics, American history, philosophy, Western Civilization, and economics. With these subjects as citizen tools, plus personal honor, the Sovereign has the best chance to wean out, to elect, to un-elect, and to demand that all who represent us agree to restrain themselves and the power that they hold for the welfare of us all and the delicate and complex system we have devised to protect liberty for ourselves and for our posterity. There is no substitute for the virtuous and vigilant citizen observing and finally judging the ongoing Tugs of War.
Copyright©2020 M. E. Boyd, Esq., “Miss Constitution”
Missconstitution.com
