Tim Dunkin
February 11, 2015
Principles of constitutionalism: divided power is limited power
By Tim Dunkin

In the previous installment of this series, I discussed the place that virtue was understood to have as the basis for all good government, and thus its central position in the minds of the founding generation who established our Constitution. In this article, I would like to explore one of the ramifications of that principle, and discuss how it was applied in our founding document. This is the principle that "divided power is limited power," and why it is important, constitutionally and morally speaking, for power to be both divided and limited.

If there is one thing our founders were concerned about, it was tyranny. Steeped as they were in the knowledge of the classical Greco-Roman world, from Demosthenes and Isocrates to Cicero and Seneca, the Founders well understood the dangers of tyranny. They also saw this firsthand, living in the age when the divine right of kings was reaching its full flower in France and other monarchies across Europe. Tyranny, essentially, is when any person takes upon himself authority or power that does not belong to him, and which is not and, indeed, cannot be rightly exercised by him. Often this usurpation comes as a result of brute force or threatened violence, but could also be obtained through guile and fraud. Believing as they did in the natural law foundation of rights before God that should be upheld and respected by good government, our founders understood that not every act of government or of any official within government, from the highest office to the lowest, was legitimate or proper. It was labeled "tyranny" when any government or official acted beyond his bounds, established either by natural law or by the laws of men in accord with the natural law.

The Founders also understood, as a result of the Christian basis of their society, that man is a sinful creature, that virtue is not something he naturally demonstrates in his character. Man is fallen, and as a result, tends to use his power and authority toward evil ends whenever he can get away with it. The temptation to abuse power is as much a trait of fallen man's sin nature as is his tendency to defraud, harm, and even kill others to get what he wants. It was this tendency, stipulated to be fully active and without effective restraint in the "state of nature," that this generation and its ideological forbearers like Locke and Sydney believed to have effectively led to the establishment of civil government among men. This was implied in Genesis 9:5-6 where God established the institution of capital punishment for murder – government as a principle was implemented to regulate and rein in man's violent impulses (such as revenge-seeking) to only those which benefited civil society (such as removing members who had committed the ultimate crime again man, who was made in the image of God). Tyranny, however, meant that there will be men who will use their power and authority to go beyond what is just, right, and delegated to them by their offices to act upon the sinful impulses of their darkened hearts and minds, to the detriment of everyone else.

To counteract this, the Founders wrote into our Constitution a principle that was well-known to them, even if had been put into practice only sporadically and not very effectively by other governments and nations in the past. This was the principle of the division, or separation, of powers. Simply put, if power is what tempts a man to oppress, coerce, or otherwise tyrannize over other men, then limiting that power and dividing it among many competing centers should effectively limit that power, and hence, the temptation (or actual harm) caused by the possession and exercise of that power. Madison wrote,

"No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than that on which this objection is founded. 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." (Madison, Federalist No. 47)

As such, it was deemed necessary to establish the separation of powers in our Constitution.

This separation takes two forms, the second of which will be the subject of a separate and later installment. The first of these is the division of the spheres of governing authority among three different branches of government, with safeguards built into place with a view toward not only establishing distinct roles and fields of competency, but also to set these three branches against each other in jealous preservation for their own rights and prerogatives. Madison later summed up both this principle and the attendant need for it,

"It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.

"But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others. The provision for the defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counter ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficult lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions
." (Madison, Federalist No. 51)

Ideally, those in positions of power would seek to guard encroachments upon their power by other offices and branches of government. Each would jealously guard its own sphere to prevent intrusions and usurpations by the others. As such, governing power, instead of being directed against the people, would be directed against itself, and each branch of government would act to rein in and limit the others. Ambition would be turned into the best weapon to be used against itself. Further, in an ideal situation, each of the three branches would find themselves appealing to the people for support, thus turning their aspirations toward, rather than away from, the interests of the citizenry at large.

Hence, dividing power in practice should result in the limitation of that power. Congress should act to limit the power of the President by controlling the purse strings and the origination of legislation. The President acts to limit Congress through his veto power. Both act to limit the judiciary by their control of nominations and approval of appointments to the bench. Many today decry the "gridlock" that so often happens in Washington, whereby the Congress and the President find themselves at loggerheads and "nothing gets done." Believe it or not, this is a feature, not a bug. Gridlock is supposed to be the natural state of affairs in Washington as Congress (in theory) represents the interests of those who elected them, while the President (in theory) represents the federative interests of the nation as a whole. Gridlock keeps bad laws from being enacted. The real danger to liberty comes when "reaching across the aisle" takes place and the Washington elite works together to craft laws detrimental to the people.

One could look at the present situation in our nation and arrive at the conclusion that separation of powers hasn't worked, and the reason why is that Washington as a whole – the legislature, the President, the courts – are colluding together to steal our liberties in a way that completely subverts the intentions of separated power. Yet, I would not be too quick to blame the constitutional structure itself. After all, it worked for most of the 226 years we have spent operating under that document. Rather (and this may be an unpopular point to make), I would place the blame on We the People ourselves.

The reason why the separation of powers should work, and why the ambitions of men in power can be set against each other, is because all of the separate centers of power should be seeking, to a greater or lesser degree, to win the favor of the people by protecting their rights and providing good government. If the branches of government are colluding together, it is because they no longer have the sense that they need to win our favor, but rather that of the other "elites" inside the beltway. Why do they believe this way? Because We the People have not been diligent to keep watch upon those holding the levers of power, and to hold them accountable when they begin to step out of line.

Our nation today is probably the most civically disengaged it has ever been. While people still vote about at historical levels, more people than ever before deserve the dubious distinction of being called "low information voters." I would venture to say that the majority of the American people do not understand the Constitution, do not understand their rights, do not understand their responsibility to keep tight reins on those in positions of political power. As a result, there is no united sense among the people that we should jealously guard our rights. When this is the case, politicians know they can get away with almost any encroachment, and can collude together to their own mutual benefit, since the people will not do anything about it. This is amply proven to them every election when the same political parties are put back into office, represented by nearly all the same incumbents that the people complain about, yet do effectively nothing to remove. Given this circumstance, why should the Washington "elites" care what We the People think?

In short, separation of powers "works" when the people themselves are civically engaged and knowledgeable of their rights and duties. At this late juncture, we may not be able to bring America back from the brink. I hope and pray that we can, but we may be too far along the path of disengagement and apathy for any educational effort to succeed. But this is the only way, short of an armed rebellion like that of 1775, for our government to be brought back into line and set against itself, as it ought to be, rather than being united against us in what can rightly be described as tyranny.

© Tim Dunkin

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

Click to enlarge

Tim Dunkin

Tim Dunkin is a pharmaceutical chemist by day, and a freelance author by night, writing about a wide range of topics on religion and politics. He is the author of an online book about Islam entitled Ten Myths About Islam. He is a born-again Christian, and a member of a local, New Testament Baptist church in North Carolina. He can be contacted at patriot_tim@yahoo.com. All emails may be monitored by the NSA for quality assurance purposes.

Subscribe

Receive future articles by Tim Dunkin: Click here

Latest articles

 

Alan Keyes
Why de facto government (tyranny) is replacing the Constitution (Apr. 2015)

Stephen Stone
Will Obama be impeached now that Republicans control both houses of Congress? (Nov. 2014)

Alan Keyes
In battle for liberty, lying is the 'WMD'

Cliff Kincaid
Does Hillary hate white people?

Larry Klayman
Hillary's email cover-up compromised judges and DOJ

Rev. Mark H. Creech
The lioness of persecution

Jim Terry
The irrelevant news media--Part I

J. Matt Barber
The entire 'LGBT' narrative just crumbled

Michael Bresciani
Hillary dips to new low, labels Trump and millions of Americans -- racists and Nazis

Rev. Austin Miles
Six week old baby murdered by her father

Michael Gaynor
Will Kellyanne Conway and Laura Ingraham enable Donald Trump to make America great again?

William Wagner
The necessity of appointing a Special Counsel

Bryan Fischer
God has not called us to be nice

Lloyd Marcus
The left's war on American dreamers
  More columns

Cartoons


Michael Ramirez
More cartoons

RSS feeds

News:
Columns:

Columnists

Matt C. Abbott
Chris Adamo
Russ J. Alan
Bonnie Alba
Jamie Freeze Baird
Chuck Baldwin
Kevin J. Banet
J. Matt Barber
. . .
[See more]

Sister sites