Progressivism and the Separation of Powers

This post is the next in a series of posts about America and freedom and the serious threats to them in the current day. Please share what you learn with others.

The Constitution and The Separation of Powers

Long before the newly proclaimed states of America broke the political bands that bound them to Britain, many of the great governmental lessons encapsulated in the Declaration of Independence and the U.S. Constitution had been distilled through the experiences of the English people living under kings for hundreds of years. Those lessons were added one by one to the English common law and to their informal, unwritten, constitution. For centuries the English people had fought back and forth with kings that relentlessly sought to get and keep all of the powers of government into their hands alone. From these political battles they learned that if any measure of freedom is to exist, the powers of government must be divided up and kept separate.

James Madison

This great principle of separated powers became so paramount in the minds of the Founders that both Thomas Jefferson and James Madison proclaimed on multiple occasions that the concentration of the several powers of government in to the same hands is the very definition of tyranny. Any person or group of people that get to make the laws, enforce the laws, prosecute offenders, adjudicate cases, and pass sentences can oppress and use people as they please. This has been done across the history of the world under kings, republics, democracies, communist regimes, socialist regemes, and any other form of government not checked by the strict separation of powers.

The reason for the need of separated powers lies deeply rooted in human nature. In the Book of Mosiah, in the Book of Mormon, King Mosiah, one of those rare kings that can rule justly, came to the end of his life, and finding that none of his sons wanted to assume the throne, he proposed a popular government to the people of his kingdom, one in which the powers of government would be separated into the hands of various "judges" that were to be elected "by the voice of the people". He told his people that it was better that they not have kings in order to preserve their liberty, and this because "if it were possible that you could have just men to be your kings...if this could always be the case then it would be expedient that ye should always have kings to rule over you...Now I say unto you, that because all men are not just it is not expedient that ye should have a king or kings to rule over you"(Mosiah 29).

James Madison wrote in the 51st Federalist Paper, a series of essays written by the chief authors of the Constitution to explain why they constructed the Constitution the way they did and to persuade the people to ratify it, that:

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, neither external nor internal controls on government would be necessary.

Joseph Smith wrote similarly in a letter while unjustly incarcerated in liberty jail that, "We have learned by sad experience that it is the nature and disposition of almost all men, as soon as they get a little authority, as they suppose, they will immediately begin to exercise unrighteous dominion" (D&C 121:39).

The Founders laid the initial ground work for the separation of powers through the Declaration of Independence. They did so by making reference to God as each of the powers of government. He is referred to as the Maker of the "Laws of Nature, and of Nature's God," as the "Supreme Judge" of the world, and as "divine Providence," the clear implication being that it is in the hands of God alone that you would entrust all three of those powers. No human can be trusted with them, as evidenced by the list of grievances with which they charge the King. Then in 1787, the Founders framed each branch of government carefully in its place, equipped with the mean to defend their territory and keep the other branches in check. James Madison felt that the structure of the Constitution was immensely important, because it made "ambition...to counteract ambition" (Federalist 51). Madison and the rest of the founders felt that if we were to ever lose the separation of powers, the republic could not survive.

The Loss of the Separation of Powers

Beginning in the Civil War, the principles of the Declaration and the Constitution began to be challenged by a new way of thinking, based off of same theories that shaped the German/Prussian governments of the 19th and 20th centuries. In the late 1800's they took shape as the Progressive movement, which continued to grow until it reached the highest levels of power and influence in the country. When progressives gained control of the government, they began to implement the changes that would allow them to bring to pass their political agenda.

The progressives were generally impatient with the separation of powers. They wanted the purpose of government to change from protecting the God-given rights of the people, to being the great problem-solver that will finally fix all of the ills of human society. If the government was to fix everything, then it needed to control everything, it needed to be able to act in unison and efficiency. They knew that the separation of powers stood in the way of that, and they wrote and argued that point substantially. Progressives also argued that, because of historical progress, humans had largely evolved out of the flaws in human nature that the Founders addressed with soberness, thus making those in the government less of a danger to the people, and therefore, the need for the separation of powers less important

Woodrow Wilson, and others, knew that they weren't going to be able to enact fundamental changes to the Constitution itself, so they had to find another way to do it. The approach that Wilson took was to separate politics from administration. He felt that politics were low and corrupt, whereas administration was the new frontier of government. Wilson wanted the government to be run by highly trained people, educated in all of the sciences, but especially in administration. He wanted them to be separated from the corrupt influence of politics, acting with tenure, and with salaries big enough to keep them from temptation. All of these things would ensure that this new force of scientific administrators would act only in the public interest. Thus, the modern bureaucracy of Europe was brought to America.

The Bureaucracy

Since Wilson began to establish his separation of politics and administration, the U.S. Government has grown exponentially. Dozens upon dozens of bureaus, regulatory agencies, commissions, and departments have been formed under this same model. To separate them from politics, they are not elected. To prevent new administrations from changing officials out for those more friendly to them, they are given tenure and laws to make it so new presidents couldn't fire them. In one instance, the Financial Consumer Protection Bureau, even their budget was made to come from the Federal Reserve, not Congress, and Congress was forbidden from holding hearings into the dealings of the bureau. All these things were done to separate administration from the consent of the governed and, therefore, from politics.

Gradually the lines between the branches of government began to be blurred. Congress, upon passing new "laws," created these agencies as part of the executive branch and delegated law making authority to them, enabling them (the agency) to make the unending flood of rules that issue from the bureaucracy for years after the "law" is passed. For example, when then Speaker Pelosi said that we would have to pass the new healthcare law to find out what was in it, she was being perfectly serious. The law, despite being extremely long, makes very little actual policy. Instead, the Department of Health and Human Services and the IRS will be making the policies for years to come, all within the safety of the bureaucracy. And so, the ruling class of people in the executive branch, has amassed the majority of real legislative power, in addition to the power to execute the laws.

The judicial powers have also gradually distilled themselves into the hand of the bureaucracy. They have done so in two main ways. First, when each regulatory agency is formed, they are given the power to have semi-autonomous judges, that work for the agency, who adjudicate cases under the rules made by the agency. After the case is settled, the head of the agency often has the power to overrule the judge and nullify his or her decision, at which time defendants can have claim to the regular courts. Second, the regular courts have developed something called "Chevron deference," which is a phenomenon in which the judges defer to decisions made by the bureaucracy, because they are the scientific experts in the fields they oversee. The Judges, not being experts, cannot make decisions that impact those fields due to the fact that they don't understand the fullness of the detailed and complicated situation. This problem of "Chevron deference" has gotten so bad that in a very recent court case in the Supreme Court, King vs. Burwell, one of the lawyers argued that "Chevron applies to the tax code, just like everything else." Justice Kennedy very seriously entertained the idea replying, "If your're right about Chevron, that would mean that subsequent administrations could change the interpretation of the law."

Thus, when an agency, who makes the rules, thinks one of its rules has been violated, the agency prosecutes the infraction and adjudicates the infraction. When the person appeals, he or she does so to the agency, and the final decision may be overruled by the head of the agency as he or she sees fit. If the defendant can afford all of the expense and hassle to make it to the regular courts, the Judges and Justices will often defer to the decisions made by the scientific experts at the agency. Sadly, this is a very accurate description of how many government agencies operate today.


Conclusion

All of these changes have concentrated all of the powers of government largely into the executive branch. Though the full extent of these powers may not be in the President's hands yet, they are not far from his or her grasp. At the very least, they are concentrated into the hands of an elite ruling class of experts that is growing ever larger, and as evidenced by the continuous stream of scandals, including the IRS targeting scandals, they are just as prone to act despotically as any human that is given unchecked power. If we as a nation do not wake up soon, and aggressively fight to return to constitutional principles, we will soon lose the Republic and the unprecedented freedom that it established, We will then, as Ronald Reagan said, "spend our sunset years telling our children and our children's children what it was once like in America when men were free."