Split Government

October 17, 2008 at 3:33 pm (Politics) (, , )

A few brief words on the virtues of a split government.

The Constitution of the United States is set up with three branches of government for a reason.  It’s set up with an Executive branch to enforce the laws and to have the right to veto them.  It’s got a Legislative branch to research and decide that a law should be created or repealed.  And it’s got a Judicial branch as a brake on the other two, able to pass down rulings that overturn the decisions of either.  Why do we have three branches?

Because the Founding Fathers realized that any less than that put too much power in the hands of too few people.  No two of those three functions can be put into the hands of the same people without the risk of creating a dictatorship.  However, it is most crucial that the power to create the laws and the power to enforce them is not put into the hands of the same people.

Why?  Because, sadly, the Constitution’s weakest point is the judiciary… if the powers of Congress and the POTUS are combined.  The number of justices who sit on the Supreme Court are limited only by the will of Congress.  If they wanted, they could declare that the next eight justices to retire can’t be replaced.  They could declare that there should be 19 Justices, not 9.  Doing so wouldn’t necessarily be popular, but it’s in their power.  The only thing keeping them from doing so at whim (aside from political impracticality) is the POTUS’ power to veto legislation making such a change.  Then it takes a 2/3’s vote to override the veto.

However, if any particular party in Congress has a 2/3’s majority in both houses, they could override such a veto.  That would allow them to go ahead and alter the number of justices any time they wanted… but they’d have to let the President nominate the justices.  Let’s just say that a Democratic Congress isn’t likely to require McCain to nominate a dozen or so justices and then approve them.  Similarly, a Republican one isn’t likely to let Obama do so.

However… if the President has a 2/3’s majority of the Congress, in particular the Senate, he can go ahead and add however many justices he might want.  Which means that if the Supreme Court disagrees with him (or Congress), he could just add enough justices to change their minds.  Don’t think it could happen?

FDR almost did just that to get the New Deal passed.  It was largely a doomed measure, but the fact that the Courts backed down from their stance against the New Deal laws raises the question of if they did so because they agreed they’d been wrong… or because they realized that he *could* pack the courts?

Once you have an overwhelming majority of the Congress and the President in agreement, the Judicial branch becomes alarmingly weak.  That is why Congress and the POTUS should, ideally, each want to keep the reins of power out of the hands of the other.

The separation of powers is much of what means the people don’t need to be absolutely terrified of the government, ready to rise up against them at the slightest provocation.  When the three branches disagree, they are forced to work together.  Even at this point in history, the Democrats can’t afford to completely ostracise the Republicans – if they do, they can’t get laws passed without them being vetoed constantly.  Similarly, the Republicans have to struggle to get anything through that both sides can’t agree on.

The idea that the people can select their government is the basis of any Republic. 

The idea that even the political (or ethnic, or whatever) minority get a say in the way their government operates is the basis of any just government.

The idea that either side deserves to have the power to do whatever they want is the basis of a consensual dictatorship. 

No matter how much you trust the people who are currently in power, you have to acknowledge that they won’t be in power forever, and what can you do if the people who replace them aren’t so trustworthy?

I’ve heard some people say that voting for one candidate or another to maintain the balance of power is ridiculous.  The thing is, those same people scream when the other side is in a position to upset that balance.  Before you go and do something – before you back a government that is overwhelmingly to the left or to the right – ask yourself if you’d want the government to be the other way around.  A government at war with itself finds it needs a cease-fire in order to exist.  A government ideologically united creates things like the PATRIOT Act.

A little conflict is a good thing.


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