Only a System Balancing Divided Powers Can Stop Abuses of Power
Power, by its nature, must be able to be abused, in principle.
That looks like a preposterous claim or a clever bit of sophistry, but I mean something quite serious by it, something I take to be an inescapable limit to how power can be hedged, something closely related to what I call the Paradox of Sovereignty, namely, that the ultimate rule-making power cannot perform its function unless it is itself outside the control of rules.
That, paradoxical as it may seem, is simpler.
And to it I now turn.
The Supreme Rule-Making (Sovereign) Power
Original Unlimited Sovereignty (International & Autocratic)
For the supreme rule-making power, if it is supreme, can be bound by no prior rules. If limited by something outside it, then it is subordinate to the power that limits it, which must then be the supreme rule-making power.
The only apparent exception to this is when peers limit one another in a balance of power. But note two things about such limits to power:
Balancing powers are not subject to one another, each being subject only to the system of balances, and only for as long as the equilibrium of that system is sustained. In other words, each balancing power is sovereign and independent, subject to no hierarchical superior but only to the system of balances itself, a kind of homeostasis of the system of powers until that system hits a tipping point and comes undone.
Independent powers within a balance of powers are ultimately limited by power alone, not by any shared subservience to a set of norms or moral rules. Such systemic balances among independent powers are described by a purely instrumental realism, and the forces that constrain the constituent powers within the system are both instrumental and generic, affecting all powers in the same way regardless of their internal constitutions or the degree to which they operate domestically under the rule of law (as imaged in the billiard ball model of international relations, see, for example, Mearsheimer, The Tragedy of Great Power Politics, p. 18).
So the independent sovereign powers within a systemic balance of powers are limited primarily by the instrumentalities of power rather than by shared moral principalities.
In other words, no rules hold sway above them, even though they operate within the limits of Realpolitik.
So, the sovereign rule-making power has no limits in the sense of rules whose precedence is a foregone conclusion. Put more crudely, the men with the guns make what rules they please, or at least what rules they can get away with.
Autocracies are simply domestic regimes in which the original and unlimited sovereignty operates in the domestic affairs as it does in foreign affairs, without any real constitution or limits.
Such rulers can do as they like with the ruled, for as long as they can get away with it.
Such regimes cultivate zealous obedience among party members, collaborators, and cronies and complacency and disengagement among all the rest.
The regime establishes an unchallengeable party line, suppresses dissenting or independent voices, and finally develops and incentivizes systems of informants.
As with original sovereignty, delegated yet independent powers within a constitutional balance of powers are ultimately limited by power alone, but in a limited, constitutional government, many barriers to the exercise of raw power (original sovereignty) slow the progress toward the ruthless factional struggles typical of autocratic regimes, particularly at times of succession of the top autocrat or toward the civil wars more typical of republican regimes.
In domestic balances of power, the independence of the separated powers is curbed, as they are but branches of a single government.
For delegated powers within a constitutional system of limited sovereignty are each sovereign within their own limited jurisdiction or domain, but only there.
That’s why in the American system disputes between the three branches of government are decided, initially (informally) by what each can get away with in the give-and-take of power politics and, finally (formally), when and if the Supreme Court is triggered — requiring both a plaintiff with standing and the Court’s decision to hear the case (it is only required to hear cases to resolve contradictory rulings by lower courts or in matters of original jurisdiction, like cases involving the Constitution or acts of Congress).
But the exact demarcations of power between the branches are indeterminate (a probably deliberate consequence of America’s terse Constitution). It is thus constantly renegotiated at the margins by parries and thrusts between rival branches.
For example, President Andrew Jackson, feuding with Chief Justice John Marshall over several matters is alleged to have said: “John Marshall has made his decision now let him enforce it.”
But if the rulings of the constitutional arbiter, the Supreme Court, are too contrary to the sentiments of a party or region, they endanger the equilibrium of the whole system.
Thus, the independent power of the branches is curbed, not only by a shared constitution, but also by a national culture, which is partly determined by cultural traditions and partly by the tradition of the constitution itself.
Unlimited Sovereignty at the Founding of Limited Sovereignty
As with autocracies, so also with republics, the original sovereign rule-making power has no limits, no rules, laws or principles whose precedence is a foregone conclusion.
This is true, for foundings of governments with limited sovereignty that lay out multiple checks and balances.
But once the regime is up and running, the fewer the checks and balances, the easier it is both to commit abuses and to conceal them, the more checks and balances, the harder to do so.
And, when constitutions need amendments or reforms (including extensions of the franchise, both in theory and in practice), checks and balances act as barriers to the exercise of unlimited sovereignty or raw power, limiting what partisans can risk while maintaining their support, increasing the steps and time needed to take power in a coup.
Nevertheless, constitution-writing and rewriting are ultimately exercises of original sovereignty by whatever group has the power to do it.
Thus, the paradox of sovereignty: the foundation of laws is itself beyond laws.
Thesis #1: Constitutional foundings begin with a clean slate as to what the founders may attempt, if not as to what the traffic will bear (which is limited by the configuration and relative strengths of existing parties, interests and classes).
Thesis #2: Any new constitutional departure is a leap into the unknown. Even cautious and prudent new departures face this difficulty, though these difficulties are better managed when such changes follow a broad consensus yet still preserve a plurality of parties and offices offering differing assessments of the ongoing outcomes, and thereby the means to correct course as need be.
Limited government is no magical cure-all, but it is the best protection against abuses of power we have.
If the Constitution rules the Powers, what rules the Constitution?
Curbing the Abuse of Power
Center v. Periphery
The particular problems with concentrating power at the center are:
The greater the power, the greater the scale of possible abuses.
The more unified the power, the fewer the distinct voices, viewpoints and vectors of power with which to offset those abuses, or even to publicize them.
With no offsets to a unified, centralized power, the role of the citizen is reduced one of two extremes, two pillars of corruption and despotism:
For the ambitious, joining the government or currying favor with it.
For the humble, “staying off the radar” of government.
The ambitious are publicly zealous, the humble publicly disengaged, and both pursue their private careers, the ambitious as officials, cronies or collaborators, the humble as self-effacing underlings reduced to cutting corners and snaring inconspicuous benefits in the grey zones allowed them.
Centralized power also produces solo autocrats with the regime itself as the publicist for their personality cults.
Putin is simple. Once a KGB thug, always a KGB thug. Apprenticed in dirt, dirty still.
Xi Jinping is a better man, more complex, but also more dangerous. For Putin is transparently a bad man, a fraud, and a crook, with the values of a thug, while Xi is a true believer, wanting to deliver utilitarian benefits on balance, according to his beliefs, to the greater part of Chinese, Han Chinese anyway who accept the Party’s monopoly of power.
Unlimited sovereignty produces these effects regardless of ideology, Leftist, Rightist, or Traditionalist.
Periphery v. Center
Is then the solution to the problems of centralized power its opposite — that is, radically decentralized power?
I am going to argue that it is not.
I am going to argue that the middle way is better than either extreme, and that layered protections are better than theoretically unified protections resting upon a single principle no matter what that principle is.
For power is the discretion to use a social office to act with the force of law to solve social problems.
For no office can function if its every act is challenged.
It’s one thing to be subject to occasional challenges, as within a system of checks and balances, quite another to have no discretionary powers to perform the tasks one was put in office to perform.
Part 2 to be posted tomorrow, Sunday, 10/23 (my intention) concerns how rights, moral authority, and history combine to limit abuses of power.
Savonarola, 15th Century FlorenceTrump, 21st Century AmericaMoses, 12th Century B.C., SinaiSee the resemblance?
The U.S. Constitution makes an unarmed prophet of a charismatic president.
What?
Since when have presidents been prophets? and how is the commander-in-chief of the world’s highest-priced military unarmed?
To make sense of this claim, I’m going to have to widen your conception of prophets and arms, and draw upon a key chapter of Machiavelli’s Prince.
Defining the Problem
Viewed through the lens of politics, prophets are leaders who build mass followings by promising great things in a future world that can only come about through their leadership.
This easily encompasses secular prophets ranging from Lenin and Hitler to the Founding Fathers, FDR, or Reagan.
While some such, like FDR and Reagan, worked within the political system, moving gradually up within established political parties, the more radical ones were pure outsiders, barely taken seriously by the establishment figures of their times.
And, as Machiavelli describes them in Chapter VI of The Prince, for such radical outsiders to come to power, they must bypass existing norms and institutions. They start, in political terms, with nothing, achieving power solely through their “own arms and virtue”.
Virtue, as used by Machiavelli, means whatever natural power proves effective in gaining and keeping power.
Arms, likewise, means whatever further resources (followers, contributors, enablers, military or paramilitary enforcers) fuel this would-be leader’s insurgent conquest of power.
Such men lack the political resources usually required for leadership, in Machiavelli’s words “one does not see that they had anything else from fortune than the opportunity”.
They must overcome daunting obstacles: “the difficulties they have in acquiring their principality arise in part from the new orders and modes that they are forced to introduce so as to found their state and their security,’ than which “nothing is more difficult to handle, more doubtful of success, and more dangerous to manage”.
The crux of the problem: “whether these innovators stand by themselves or depend upon others; that is, whether to carry out their deed they must beg or indeed can use force.”
Here is where the difference between armed and unarmed prophets comes into play.
The Problem Solved
Machiavelli continues: “In the first case, they will always come to ill and never accomplish anything, but when they depend on their own and are able to use force, then it is that they are rarely in peril.”
“From this it arises that all the armed prophets conquered and the unarmed ones were ruined. For… the nature of peoples is variable; and it is easy to persuade them of something, but difficult to keep them in that persuasion.”
In modern lingo, populist politics rouses the people by promising things beyond their previous imagining.
But there’s a catch, at least for those who don’t have a plan beyond building a personality cult around themselves (versus, say, the Founding Fathers). The promises of populist demagogues are hollow promises, and cannot be delivered.
“And thus things must be ordered in such a mode that when [their followers] no longer believe, one can make them believe by force.”
In modern lingo, if a charismatic populist depends on the belief of his followers, but cannot use force outside the existing laws when that belief stretches to breaking, then all those with any stake in the existing order, when they see that he means to annihilate that order, will combine against him.
Unless, of course, the prophet has the armed force and ruthless will to make the people believe when their belief begins to waver. You know how it’s done. Just study the masters: Lenin, Stalin, Mao.
Savonarola — a 15th Century Florentine forerunner of Luther who condemned the luxury and corruption of Pope Alexander VI (Alexander being a prime model in The Prince of ruthless slyness, a cunning fox with few equals, posing as a man of God) — is Machiavelli’s prime example of an unarmed prophet.
Savonarola ended his days, after causing all kinds of headaches for the reigning Pope, by being burned at the stake in the central piazza of Florence, the very city he had so captivated. And at the instigation of Alexander VI, the very pope in whose side he’d been such a thorn.
Preparing for blast-off!Telling it like it isCandela!Burn now to be nicely bronzed later.
The Crucial Difference between Moses and Trump
Now Machiavelli is a masterful fox himself, and seldom says all he has to say directly.
Do you love a puzzle? Machiavelli is full of them!
If Savonarola is the ultimate bad example, who should we look to for a positive example?
Wait for it… Moses!
Machiavelli gives a short list of four great examples: Moses, Cyrus, Theseus, Romulus — the founders, respectively of the ancient empires of Israel, Persia, Athens, and Rome. The last two are probably not even real, glorious legends rather than real men. The other two are shrouded in legend and adoring devotion.
Our fox is quick to disavow that he’s so impious as to propose Moses as a model of his self-made, subversive, and ruthless prince.
After all, God was on his side: how could he lose? And why should we credit him with what was really accomplished by God?
Nevertheless, our fox keeps bringing up Moses.
So, how is Moses an armed prophet? Machiavelli never says. And when Machiavelli goes on the Down Low, that’s usually a clue.
Time for a little Bible study, in a style more chilling than you’re used to. Go forth, and read Exodus 32:26-28.
Machiavelli never says this out loud.
Prudent of him, given how Brother Savonarola ended his days.
He does however give one final “lesser example”, Hiero of Syracuse. Google him, if you wish. Or just know that a good modern analogue for him would be the late, unlamented, Saddam Hussein. Cruel, corrupt, ruthless, craving power, and bound by no limits. Saddam and Hiero did what they had to do. As Outback restaurant beer coasters say “No rules, just right!”
How far, then, would or could Trump go?
TheCourt: Think how Chief Justice Roberts has been making it clear that his Court is a conservative Court, but not a lackey Court.
ThePentagon: Think how his administration started with 5 generals, but shed all of them.
TheSenate: Think how, Mitch McConnell, his most crucial enabler, responded to his recent tweet about delaying the upcoming election. Not gonna happen.
The Court: And that tweet brought Steven Calabresi (co-founder of the Federalist Society) to cite that very tweet as grounds for Trump’s immediate impeachment.
Calabresi’s Federalist Society has been the most forceful and effective proponent of the Court’s swing to conservatism. Its current members include Chief Justice John Roberts, and the most conservative associate justices: Samuel Alito , Clarence Thomas, and (until his death) Antonio Scalia.
Finally, a little checks and balances action!
In short, there are places Trump might want to go, where none will follow him — without an independent coercive power, answerable only to him –that he does not have.
Savonarola looked strong too, until he crossed a line where the rest of the power players turned on him.
Before……and after.
All citations from Machiavelli, Niccolo, The Prince, Chapter VI, trans. by Harvey C. Mansfield.
Ruth Bader Ginsburg is in chemotherapy for cancer again. She reports that she is responding well.
Ginsburg is the oldest member of the liberal minority foursome on the Supreme Court, determined to stay on the Court as long as she is able to work “full steam”.
If she goes before November 3, all expect a quick executive nomination and Senate confirmation of a comparatively young conservative, making this a 6-3 conservative majority Court of long duration.
If you’re a liberal, or simply a centrist desirous of a balanced Court, this looks like a worst case scenario.
Court Packing Is Nothing New
Thomas Jefferson
John Marshall
I’ll see your bet and raise you 42 judges…
Court packing is as old as American party politics. Facing a decisive shift in the electoral prospects of his Federalist party against the Democratic-Republican party of incoming President Thomas Jefferson, John Adams had his Secretary of State issue 42 midnight appointments of Federalist judges.
Jefferson’s incoming Secretary of State, James Madison, refused to deliver those letters of appointment. One of those thereby deprived of judicial office, William Marbury, sued Madison.
Thus arose the famous Supreme Court case of Marbury v. Madison, resulting in the equally famous majority opinion of Chief Justice, and Federalist, John Marshall, which provided the basis for the power of judicial review, crucial to our system of checks and balances.
Judicial review was actually a ‘poisoned pill’ Marshall had built into his opinion, for the opinion artfully used the power of judicial review to block those midnight appointments of Federalist judges, thus offering new President Jefferson a choice between a present advantage for the President’s party (dozens fewer Federalist judges) at the cost of a near-term advantage for Marshall’s Federalist party (leaving Marshall with the power of judicial review).
Jefferson either opted for the short-term benefit or took an even longer-term view than Marshall, judging that the power of judicial review would ultimately fall into Democratic-Republican hands.
So, we have a clear precedent for this kind of high-stakes political poker, this power-conscious and partisan gaming of the Constitutional system, acted out in the early years of this nation by a good handful of Founding Fathers.
This is how checks and balances really work, as power politics within limits that are not themselves wholly divorced from the game of power-politics .
Power Politics and Checks & Balances
Many of us were recently saddened to see a crucial element of checks and balances misfiring, by producing a predictably partisan result in the Senate impeachment trial. And, those who disagree with the assessment that this failure occurred in the Republican-run Senate see a like degree of failure in the bringing of the impeachment in the Democratic-run House. in the first place.
How ironic! The only point of agreement between opposing partisans is that the process was riddled with partisanship.
So, let’s consider how the impeachment process was supposed to work.
Didn’t James Madison himself, in Federalist Paper #51, argue that “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place”?
I had always thought this meant that, when push came to shove, Senators would set their partisan interests aside, to protect the prerogatives of the Congress against overreach by the President.
It was, after all, their power, and why should they let an overzealous President curtail it? Ambition would be sufficient to override partisan advantage.
But that’s not what happened.
Instead, Senators realized that their present power was contingent upon reelection, and that they would not survive their next Republican primary when the nation was this polarized, and the President had the support of his unfailingly loyal base within the Republican electorate, giving them an overweight power in our current state of national polarization. Primaries have become a bottleneck favoring the radicalized wings of both parties.
And, as always, the extremists on each wing feed off of one another, strengthening each other at the expense of the sensible middle.
So, ambition failed to counteract ambition, because ambition, a non-moral force, pointed elsewhere in the current reality of polarized politics.
But I was wrong in this initial analysis, in two ways:
Historically (i.e., empirically), impeachments, and their subsequent Senate trials, have never been anything but partisan: just look at the deserved, but unsuccessful, impeachment conviction of Andrew Johnson and the attempts on both Bill Clinton and Donald Trump.
The only impeachment process ever close to non-partisan was that of Nixon, which ironically never proceeded to impeachment, because when the White House tapes revealed the unambiguous (though unintentional) confession to the commission of crimes and abuse of power in pursuit of personal political ends, no Republican Senator would risk standing by Nixon, whatever their partisan preferences.
Now you might ask “What good is a check and balance that is effective only when direct evidence amounting to an indirect confession is available? ” If street criminals could only be convicted under such rare circumstances, prisons would be empty and criminals dancing in the streets.
And, going forward, no President will ever again leave unredacted tapes as evidence of misdeeds.
It is not, in Constitutional crises, the paper powers of the Constitution that underpin the system of checks & balances. It is, rather, the willingness of the populace to allow the system to be gamed.
A failure to convict of impeachment can be a decisive factor in a subsequent election, either by itself, or in combination with other perceived signs of the abuse or inept use of power. That was, after all, the pretext of Senate Republicans for what some might have seen as an abdication of constitutional duties, “Let the people decide”.
Real-World Checks & Balances
In this corner, FDR, President of the United States, and in this corner, Charles Evan Hughes, Chief Justice of the Supreme Court
To repeat, court packing is nothing new.
The possibility of an out-of-balance 6-3 conservative Court, here discussed as a worst case scenario, would seem to represent the same kind of rearguard defense of its power by a fading party that the Federalists executed from 1801 – 1803.
In that case, Jefferson gave up the near-term advantage to the Federalists, taking the shorter-term and longer-term benefits for his party.
A similar case arose when FDR and his Democrats achieved a sweeping electoral victory . Key legislation was consistently blocked by a conservative dominated Court (described either as 5-4 or as 4-2-3).
In frustration, FDR proposed legislation adding 6 new judges to the Court, which would have made the Court liberal-dominated, at the cost of openly gaming the existing system of checks and balances.
The move lost FDR much support and, though the bill was beaten in Congress, it achieved its purpose, as the Court — presumably, to undermine support for the FDR-sponsored bill that would limit its power — began to issue rulings supportive of the President’s policies.
To sum up, in the strategic game of power politics, that FDR’s bill was defeated, and that by pushing it he lost broad bipartisan support, are simply viewed as costs necessary to achieve larger political ends.
The moral of this story: the power of Constitutional checks & balances lies not in the letter of the law, but in their support or lack of it in the populace. Tacit consent is the magma under the crust of ‘parchment barriers’, to use Madison’s phrase.
Sláinte & L’Chaim: The Current Worst Case Scenario
Gorsuch & Kavanaugh, young and healthy
Should Ginsburg leave the Court, and should The Republican President and Senate create a 6-3 conservative-dominated Court, that will certainly make it more difficult for a more liberal agenda to be implemented, even if the electorate shifts decisively in that direction as a generation passes and demographic and economic trends, working quietly in the background, relentlessly tilt the electoral game board away from the present conservative control.
But should that change come about and persist, such a Court could no more stand alone against it than the Federalist courts of 1801 or the New Deal-opposing Court of 1930’s.
A move, or the threat of a move, against the paper checks & balances, that was supported by the general will or tacit consent of the populace, would, following historical precedent, suffice to bring that imbalance, like the imbalances of 1801 or 1937, back into a balance better reflecting the range of views in the electorate.
Because, as recent political events in the U.S. have shown, parchment barriers are not proof against the perceived interests of either power elites (Senate Republicans intimidated by the electoral power of Trump supporters in Republican primaries) or mass movements (Tea Party, Black Lives Matter).
When All Is Said and Dunn 