Wednesday, August 16, 2023

Separation of Powers:Checks and Balances

I just read a wonderful description of our system of checks and balances that I would like to share with you:
We have, at least in the original design of the Constitution, a system that has no directional pull at all. Each distinct institution of government, from the President, to the Senate, to the House, is subject to different rules, all of which, in combination, are designed to create multiple obstacles to the enactment of laws.

Richard A. Epstein, 34 Harv. J. L & Pub. Policy 819 (2011). In other words, the Constitution provides multiple veto points designed to make it difficult for one-size-fits-all national laws to be enacted. As Justice Scalia used to say, deadlock is a beautiful thing ("Gridlock is what our system is designed for.")

Art. I, section 7 provides:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.

Consider this passage from  the Paulsen book (24):

'[W]e look at four cornerstones of the Constitution's overall design: first, the fact that it is a written constitution; second, its essentially republican character; third, the carefully crafted separation of powers of the branches of the national government;  and fourth, the distinctive feature of federalism, dividing power between the national government and the states."

The Tenth Amendment was designed to underscore the fact that the Federal Government was one of strictly limited powers--it had only those powers enumerated in the Constitution, and no others. Here is the text of the 10th Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Does the fact that the Federal Government is one of only enumerated powers, as opposed to plenary power, protect liberty? If so, how so? By "avoiding too great a concentration of power in any one set of hands?" By giving citizens the right to choose among 50 competing baskets of government?

Now consider Madison on Federal Power in Federalist 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Is this how things worked out?

We will have much to say about these matters as the semester progresses.

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