The Security of Checks and Balances

Much of the political rhetoric surrounding the US presidential election centers around the relative security posturings of President George W. Bush and Senator John Kerry, with each side loudly proclaiming that his opponent will do irrevocable harm to national security.

Terrorism is a serious issue facing our nation in the early 21st century, and the contrasting views of these candidates is important. But this debate obscures another security risk, one much more central to the US: the increasing centralisation of American political power in the hands of the executive branch of the government.

Over 200 years ago, the framers of the US Constitution established an ingenious security device against tyrannical government: they divided government power among three different bodies. A carefully thought-out system of checks and balances in the executive branch, the legislative branch, and the judicial branch, ensured that no single branch became too powerful. After watching tyrannies rise and fall throughout Europe, this seemed like a prudent way to form a government.

Since 9/11, the United States has seen an enormous power grab by the executive branch. From denying suspects the right to a trial -- and sometimes to an attorney -- to the law-free zone established at Guantanamo, from deciding which ratified treaties to ignore to flouting laws designed to foster open government, the Bush administration has consistently moved to increase its power at the expense of the rest of the government. The so-called "Torture Memos," prepared at the request of the president, assert that the president can claim unlimited power as long as it is somehow connected with counterterrorism.

Presidential power as a security issue will not play a role in the upcoming US election. Bush has shown through his actions during his first term that he favours increasing the powers of the executive branch over the legislative and the judicial branches. Kerry's words show that he is in agreement with the president on this issue. And largely, the legislative and judicial branches are allowing themselves to be trampled over.

In times of crisis, the natural human reaction is to look for safety in a single strong leader. This is why Bush's rhetoric of strength has been so well-received by the American people, and why Kerry is also campaigning on a platform of strength. Unfortunately, consolidating power in one person is dangerous. History shows again and again that power is a corrupting influence, and that more power is more corrupting. The loss of the American system of checks and balances is more of a security danger than any terrorist risk.

The ancient Roman Senate had a similar way of dealing with major crises. When there was a serious military threat against the safety and security of the Republic, the long debates and compromise legislation that accompanied the democratic process seemed a needless luxury. The Senate would appoint a single person, called a "dictator" (Latin for "one who orders") to have absolute power over Rome in order to more efficiently deal with the crisis. He was appointed for a period of six months or for the duration of the emergency, whichever period was shorter. Sometimes the process worked, but often the injustices that resulted from having a dictator were worse than the original crisis.

Today, the principles of democracy enshrined in the US constitution are more important than ever. In order to prevail over global terrorism while preserving the values that have made America great, the constitutional system of checks and balances is critical.

This is not a partisan issue; I don't believe that John Kerry, if elected, would willingly lessen his own power any more than second-term President Bush would. What the US needs is a strong Congress and a strong court system to balance the presidency, not weak ones ceding ever more power to the presidency.


Originally published in the Sydney Morning Herald.

Posted on October 29, 2004 at 10:21 AM • 11 Comments

Comments

Al TOctober 29, 2004 4:39 PM

"Since 9/11, the United States has seen an enormous power grab by the executive branch."

Try since America's inception. The Bush administration’s power grabs pale in comparison to presidents like Jackson, Lincoln, Teddy Roosevelt, and FDR. There are only two times that I can think of power shifting away from the executive, when Congress removed many powers right after Nixon resigned, and during Reagan’s presidency, he moved many of his powers to the states.

Robert FischerOctober 29, 2004 5:03 PM

What the government really needs is a split in the party lines between Congress and the White House. Much of the acceptance to Bush's power-grabbing is because the Republicans in the Congress refuse to oppose the Republican President, since that President is the de facto leader of the Republican party. If the Democrats were to take both the White House and Congress on November 2nd, I would expect four more years of the same.

The fundamental problem here -- the glitch in this security system -- is the two-party system. The 2000 election, where a politician lost the popular vote but won the Presidency, simply emphasizes a truth that has been whispered about for a while: you don't need the electorate's support to win the election, you just need the *party's* support. With politicians relying on their party more than their constituents to satisfy their ambition, it's no surprise that a single-party government rolls over and no major force will oppose their party's most eminent member.

As you said, this is not a partisan issue. Although the Republicans have done it, and the Democrats would do it, too. This problem is more fundamental than the Democrats or Republicans: it is a fundemantal flaw of a system with domineering political parties.

Jim TomlinOctober 29, 2004 5:08 PM

Bruce, I completely agree with your well-stated position on the frightening and dangerous increase in the power of the executive branch of the U.S. government. I am also a long-time fan of yours ever since the publication of Applied Cryptography. I wonder, though just how it is that you came to publish today's comment on the United States' political situation in an Australian newspaper. I am sure that the Aussies are lovely folks, but is there some reason your piece appeared there instead of an American publication?

Hoby SmithOctober 29, 2004 5:10 PM

Bruce...

While I agree with you that the distribution of our inherent constitutional checks and balances is seriously warped as you describe, I would also decry that this issue has been rampant in both the legislative and judicial branches as well for quite some times. You state, "And largely, the legislative and judicial branches are allowing themselves to be trampled over".

In truth, all branches of our government have become increasingly power hungry, which is not surprising. However, I don't believe that you can cry foul regarding the horrifically out of control growth of executive powers, while not also bewailing the tyranical, activist judges, who also throw-out popular rights on a daily basis in favor of their political agendas. In some ways, this is a much larger transgression than the rampant federal power growth.

Over the last several years, we have watched activist judicial structures redefine "rule by the people" over and over. We have seen state sovereignty tritely discarded, votes cast aside, refferendum's so lightly disregarded, and that after people's votes; this occuring because some activist judicial board didn't like what the people or the constitution truly desire or define.

So, while I cheer with your rally against dictitorial presidential powers, I would first recommend some travail for the loss of national identity in our court and legislative halls, where the voice of truth, dignity and national prudence is daily silenced and suppressed by the roar of injustice, greed, avarice and wickedness, and where we as a people no longer have a representive voice as becomes a nation of justice and righteousness.

Sincerely...

Hoby Smith

AshleyOctober 29, 2004 6:31 PM

This 'activist judge' argument is tired. Money quote:

The legal right needs to give up the conceit of its purity. Thoughtful conservatives and liberals have different visions of justice and social utility, and these visions will affect how they shape the law. We can only insist on judges whose work is clear, exacting, and intellectually honest — transparent to citizens, and persuasive to those who are trained to evaluate legal argument.

http://www.law.umich.edu/JournalsandOrgs/rg/...

Derek HofmannOctober 29, 2004 7:52 PM

I agree with Robert that we are artificially (although unintentionally) limiting our presidential candidates and therefore our choices with our 2-party duopoly. However, eliminating the electoral college might also eliminate some of its benefits, where an alternate voting system such as IRV or Approval Voting might be a better choice.

And this might be shifting the blame a little, but if the U.N. were more assertive, our human rights violations wouldn't go unpunished.

Precision BloggerOctober 29, 2004 8:09 PM

Ronald Reagan should be remembered as a president who seriously tried to upset our "three-stoll" government, and allow the executive to do whatever it wanted.

This Bush government seems remarkably set on operating the executive in secrecy without accountability.

Right and left-wing governments and policies will come and go, but if the president ever gains much too much power, it is hard to see how the balance will ever be reset. Our risk is that we would no longer be a democracy.
- The Precision Blogger
http://precision-blogging.blogspot.com

John David GaltOctober 30, 2004 12:13 AM

The Founders meant well when they gave us the "separation of powers" doctrine, but it doesn't work. Compare the questions Tony Blair has had to answer in Parliament for his role in the Iraq war with Congress's complete inability to require any such thing of President Bush. For what it's worth, I supported the war and still do, but the British practice of Questions in Parliament is an important "check" that we haven't got.

The other major result of "separation of powers" was to allow a President to defy the constitution and the courts with impunity whenever he likes, if he's willing to do it openly the way Andrew Jackson did. This isn't something that only happens during emergencies, either. Drive up I-5 from San Diego to Los Angeles today, and you'll still have to stop at a Border Patrol checkpoint that was declared illegal by the US Supreme Court in 1975 (US v. Ortiz) but has yet to be removed!

If we ever want to have checks and balances again, we'll have to start by amending the Constitution to abolish the "separation of powers". At the very least, the Supreme Court ought to be able to remove a President who disobeys one of its orders.

MarcOctober 30, 2004 9:15 AM

Well spoken. People high and low need to reiterate these points so they will not be written off as alarmist or fanciful by people that are (understandably) reluctant to acknowledge the increasing threat of authoritarianism in the United States.

The most insidious authoritarian and totalitarian regimes do not appear overnight; setting the stage for the eventual revolution takes many years and happens so slowly that many don't notice until it is too late.

John LockeNovember 11, 2004 9:39 AM

The Us isn't a particularly good example for the separation of powers doctrine. The President's power to veto legislation and appoint judges should be regarded as an anomaly. Americans should also be aware that the rights of the individual are not very well protected by their constitution - well, except for the right to carry arms. It is effectively the supreme court who has introduced some basic rights. I recommend all of you to read the 2003 decision overturning (5 to 4) the criminalization of gay/anal/oral sex. Most western countries would find the idea appalling that the state tells people how (and with whom) to make love. Yet in the USA, the home of the free, of all countries, such provisions have persisted into the 21st century and many people hate the supreme court like Satan for defending their basic human rights. And read the minority opinion which says that states should be allowed to outlaw even adultery and masturbation, if they wish.

FloreceAugust 26, 2007 8:55 AM

Conducting some preliminary research into American politics, the supposedly imminent take-over by Bush of this democratic country is increasinly alarming to a young British citizen believing that 'checks and balances' are of utmost importance to the system. Are there any recent examples of the legislative or judiciary functions exercising their powers over the executive at all? It would seem not- with Bush's regular use of the rather useful 'Signing Statement'. Any examples at all would be relievedly accepted!

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