Thursday, July 06, 2006

Understanding Separation of Powers

There has been much talk of late about "separation of powers". We hear it most recently in the context of anything covert that the Bush Administration is doing to combat terror. The left feels that anything the President does to fight terror that is not plain and in the open is an executive overreach. They claim that "separation of powers" needs to be respected. And then they'll resort to their default whining about impeachment or something like that. But as with every other can of worms the left unwarily opens in moments of false righteousness, it misdefines the issue while completely ignoring how little regard it has for those same admirable principles.

Separation of powers is a vitally important concept to our freedom. It prevents one branch of government from acquiring too much power, and thus acting by fiat. It requires the different branches of government to assent to the ultimate acts of the others, preventing one from becoming independent of any of the others and getting out of control. And it is now the excuse being used by the far left to justify espionage.

The media, led by the New York Times, justified the exposure of two classified programs over the past six months under the notion that separation of powers needed to be observed, meaning that the executive needed oversight from the other branches. And in theory, this is a completely correct principle.

But this excuse for breaching our security misses the point that the President advised the appropriate Congressional oversight committees on these various programs. In other words, the people's elected representatives in the other branch of government were on board and able to take whatever action they felt appropriate. They took none, as the people of the United States have elected a legislature comprised of people of both major parties that is much more likely than not to cooperate with this President in the war on terror. And so the argument fails that the Administration was usurping power it did not have or hiding activities from those with the power to oppose it. Just because it was done without the consultation of the NYT editorial board does not mean that it was not done in keeping with the Constitution. So the separation of powers concern does not exist.

And taking a very generous leap by presuming that the left is engaging in this debate in good faith, rather than using it as a pretext to attack the Administration it so pathologically despises, it is then fair to say that they are incorrectly defining and applying the term "separation of powers". But based upon their posturing, it is probably fair to say that they are using the term "separation of powers" to mean something more akin to "partisan balance."

They disagree with this President, regardless of what it is that he is doing, and are insisting that their minority viewpoint be given equal consideration in all matters of state concern. But our Founders saw no need to ensure a system of political parity between those of differing views. And it is rather arrogant for them to presume that their vociferous opposition should translate into relevance. Because the Founders were very clear about one thing: those who gain power under our system do so only because they are elected by the people.

So the whole "separation of powers" argument, as offered by the media-left is a no-go. But interestingly, these same folks would have been wise not to raise the separation of powers issue, because it opens the door to a discussion about their efforts to legalize their social agenda, and how their strategy by its very terms requires a violation of the principle they claim to watch and guard so closely.

The courts have long been the far left's substitute legislature of choice. And the power which the courts are granted (and by Marbury v. Madison, granted themselves) have enabled individuals and groups with agendas that had no prayer of passing through any legislature in this nation, to petition the courts, demanding special rights, and claiming that a denial of their demands violated some provision of the Constitution. Of course, this requires a very broad and frankly twisted reading of the Constitution, but certain politician-judges have no problem making new laws from the bench by adopting convoluted legal theories that have no basis in American jurisprudence. And when judges make up brand new law to fit their subjective view of the way the law ought to be evolving, that is a violation of the separation of powers.

Courts exist to ensure that laws are applied to contoversies between individuals. They also exist to ensure that the legislature and the executive do not take acts that are unconstitutional. But to be clear, it is not their job to remake laws they don't like, or to make ones they do. And it is not their job to read more meaning into the laws and the Constitution than is actually there. In other words, their job is one of a dispassionate referee, one who brings things back to the objective standard found in the laws on the books, not to a subjective concept of the way things ought to be. But when judges step beyond those limits, as the left expects them to every time they litigate a case for gay rights, striking of abortion regulations, restricting religious speech or any other of their pet causes, they are usurping the power of the legislature to write laws and the executive to approve them, thus violating the separation of powers. But in that case, the left cares not, as the separation of powers benefits them.

So when the left speaks of the concept of separation of powers, it is important to be clear about what they mean: They really aren't concerned at all about whether each branch of government is operating within its Constitutionally-prescribed limits, because the current system hasn't given them much success. They want to be the final backstop in the legislative and political process. In other words, separation of powers is the exact opposite of what they want. They want union of power. And they want to be the ones holding it.

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