Lex, Rex

Why The Founding Fathers Divided Federal Power

Wednesday, February 20, 2019 • Gary Fox • Government
Divided and shared authority is not "a" way to liberty and prosperity...it's the ONLY way...and its basis for doing so is thoroughly Biblical!
Why The Founding Fathers Divided Federal Power

Have you ever noticed that Republicans only care about "executive overreach" when a Democrat is President, and Democrats only care about it when a Republican is President? Neither party minds too much when their guy is in there of course, better he take the heat by himself rather than having to go on record with a vote themselves. The same is true with angst over "judicial overreach". It's cool only if the court is doing their dirty work, it's almost Armageddon when the courts do the dirty work of the other side.

Where do these terms come from, "executive overreach" and "judicial activism" and why are they so bad? Humans have lived under some form of monarchy throughout most of recorded history and there's no such thing as "executive overreach" in a monarchy. The king rules and does what he believes is best at the time he decides. Imagine the red tape that is immediately evaporated under such a system. Often times we hear people complain about how government just "needs to get stuff done", as if all the haggling and debating and maneuvering is really bogging "progress" down. People living under a monarchy never have to worry about things getting bogged down like that, the monarch declares his will and things start to happen with haste.

Maybe people are just more comfortable living under a monarchy, it seems like the societal default of humanity. Even Americans these days are becoming more and more comfortable being ruled over by a kingly figurehead. Liberals stood and still stand at the ready to enthrone Obama, conservatives are ready to crown Trump. I'm sure this has been true to some degree since our founding, but in my lifetime, I've never seen this level of unwavering loyalty to (and hatred for) Presidents.

It's also interesting to see how people seem willing to serve under the rule of courts, the Supreme Court is seen as near holy ground for many if not most people today.

The founders weren't so fond of being ruled over, they were not fond of it at all. They knew God had ordained government, so trying to create a society without government would not only be sinful, it would be folly. But they also knew they desperately wanted to avoid the tyranny of a king…and the tyranny of the majority…and the tyranny of courts. You see, monarchy, democracy and kritocracy are all possible forms of government, each promising to be a better option than the other two…but all three create the very real potential for tyranny. The founding fathers of America saw no advantage to being ruled over by one over the other, all three options created the potential for terrible outcomes.

But why? Why were they so pessimistic? Why would they so ardently rule out all three options? Were they paranoid? Maybe, but that's not really the underlying assumption they were working with. They started with the conviction that man is selfish, fallen, and sinful. This was by far the most influential factor in their thinking, it kept them from becoming anarchists (man is sinful therefore needs to be governed) and it kept them from quickly adopting a system which could be dominated by men (man is sinful therefore needs to have his authority restrained). James Madison said "there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust". Alexander Hamilton believed "men are ambitious, vindictive, and rapacious." This view of man comes of course from the Biblical worldview, as does the axiom "power corrupts, absolute power corrupts absolutely". Even the best, brightest and most well intentioned can be corrupted, compromised and manipulated because everyone is sinful. Everyone deals with selfish ambition and can justify and rationalize in their own minds' unjustifiable things in the pursuit of self-interest, self-serving goals and the advancement of personal agendas and preferences. This fallen nature makes everyone prone to self-deception, believing they know what is best, they have the deeper and more clear insight and that everyone out there standing in their way is wrong.

So, they knew they must reject anarchy, but they also needed to reject the rule of man. They providentially insisted a system be instituted where people are ruled by law, not man. That law of course was predicated on the recognition of natural law and natural rights (more on that in future installments).

That's a great thing to aspire to, right? The rule of law, not man…but how is that supposed to happen? How can men govern but not rule? How can men act in the name of the law? The founding fathers, again by nothing short of divine providence, came up with a scheme to use the sinful ambition of men to create a tension in government, a stabilizing tension. The way to do that, they reasoned, was to divide power up and share it among equal branches government…three of them. I can't stress how important that point is, three branches pulling on the reigns of government with shared authority created the desired effect of stabilized tension in mind blowing fashion. Sadly, we've replaced that system with a two party system, with only two sides pulling against the other...and we see anything but stability as a result. The two party system has screwed it all up, it's caused all three branches to move in unison along one of only two party lines OR obstruct movement along one of two party lines, making serving party interests paramount and the sharing of power between branches of government only theoretical, but that's the topic of another article. Suffice it to say for now our government was designed for three distinct branches, equal in power.

Knowing that these three branches would end up at times competitive with the other two, the founders reasoned all three would be careful to not encroach on the natural rights of the people lest they be humiliated, stopped or even punished by the other two branches for doing it. The other two branches, in fear of losing their own influence and power, would be quick to call out and smash any overreach of the other branch. This resulting tension provided maximum protection, liberty and prosperity for the people. The framework was ingenious for that reason alone. But its wisdom went beyond that.

The American founders knew that government always drifted away from the people, that it always sought more and more power. So, this system of government was designed to get bogged down. It was designed to take "forever" to "get things done". It was designed to do that. The idea was that the slower government moved, the better, because any human government will always be totally bent to move in the wrong direction (because humans are involved!). Even if it takes two steps in the right direction it won't be long before it takes three steps the wrong way.

A governing system that is so easily bogged down into deliberate, unavoidable gridlock when it comes to making big changes will always allow for maximum freedom of the people. Of course established norms and laws must move smoothly, but big changes should go slowly and when that is the case the people, overall, will flourish. This system of checks and balances and gridlock and slow, incremental change creates a nearly unchecked people freely moving, changing, developing and revolutionizing in the "private sector". The speed of government to make big change directly affects the freedom and prosperity of the people. This is counterintuitive for half of this country today, people assume the government needs to make big changes with ease in order to straighten things out and nothing can be further from the truth. The opposite is true. There is little or no gridlock in Chinese government for example, the ruling party can decide to change a policy this morning and begin to implement that change this afternoon. This imminent power of Chinese government stunts the freedom of Chinese people. If the government is hindered or at least slowed down in making big sweeping changes the people are left unhindered. If the government is unhindered to make big sweeping changes the people will be hindered. The framers knew that, the insight and foresight they had was incredible.

The boom the American experiment created is not even measurable, it landed us on the moon for crying out loud! We can certainly go back and look into our history and see many evils and injustices which went on for far too long (almost all of which were created by overreaching government which squashed individual liberty), but there can be no denying the overwhelming blessing God has poured out all around the world through America and it all started because the framers deeply believed human sinfulness stifles progress. We will eat ourselves unless we are restrained. And "we" includes those who govern, for the first time in human history, leaders chained and restrained themselves!

So "executive overreach" and "judicial activism" are both steps taken to loosen those chains, and both are great threats to our society. The more it goes on, the less free and less prosperous we will be. It is just that simple. When a President gets impatient with Congress, even for good reason, it is understandable that he'd want to say, "screw this, I'm a leader and damn it…I am going to LEAD!" It is understandable that judges would want to see stupid laws on the books done away with. But these impulses are dangerous because the thirst for more power is an evil instinct and is unquenchable.

The rule of law by way of divided and shared powers in government is not optional, resist any temptation to justify moving away from it, even if it's your guy doing it.

Scriptures: 1 Peter 2:13-17

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