Can Government be Limited?

American Government Limits

1. A written constitution
2. Federalism - the federal government sharing power with the states
3. Enumerated powers (Article 1, section 8 and the 10th amendment)
4. Separation of powers
5. Bicameral congress
6. Checks and balances - advise and consent, veto and override
7. Elections
8. Term limits
9. Campaign spending limits
10. Impeachment
11. Restrictions on democracy
12. The bill of rights
13. The electoral college

The Framers of the U.S. Constitution agreed that the new government needed to be a republic rather than a kingdom or democracy. They all agreed that royalty could only lead to tyranny. And from the leaders and philosophers of ancient Greece, and from history since then, they were convinced no form of autocracy could be allowed, and that the dangers of pure democracy would easily create another kind of tyranny. They did see the need for the people to have a voice, and as a result the republic was given a representative form.

The intent was to lay a firm foundation for securing their Liberty, and thus the democratic element had to be limited. But the limitations imposed by the representative form was not the only limit required.

The original colonies had declared themselves as sovereign states when they declared independence from Great Britain. And they saw themselves as remaining so. Even as the citizens of these states agreed to the Constitution of the United States, they were sovereign states. That was accepted, although certain powers were from then on delegated to the union.

The federal government alone could enter into treaties with foreign nations, decide cases of conflict between states and people of different states, impose tariffs, coin money, impeach a federal government official, find someone guilty of counterfeiting, treason, piracy and felonies committed on the high seas, and create the process for naturalizing citizens.

The states accepted the new responsibilities of selecting U.S. senators, electors for a presidential elections, appointing military officers, obtaining funds for federal taxes apportioned to them, and allowing cases at law to be appealed to a higher court than the state's own courts. That's the gist of federalism or the structure of the relationships of the states to the union or the federal government.

The federal structure was one of the major components in the machinery of government limits. Further limits were imposed within the federal level. This is chiefly seen in what is called the "separation of powers," sometimes called "checks and balances." This defined the boundaries between the functions of producing law or legislating, applying or executing the laws, and adjuticating disputes when laws are broken. There were some additional devices to allow one branch of government to challenge or to check actions of another. Among these are the enumeration of powers, the presidential veto and judicial review.

”The doctrine of separation of powers, as implemented in drafting the Constitution, was based on several principles generally held: the separation of government into three branches, legislative, executive, and judicial; the conception that each branch performs unique and identifiable functions that are appropriate to each; and the limitation of the personnel of each branch to that branch, so that no one person or group should be able to serve in more than one branch simultaneously.” (from Findlaw)

Why these Limits did not Work

Federalism was a natural outgrowth of the order wherein the colonies had been established one by one with separate governments. Although the federal government was ceded a defined set of powers, with the gradual seizure of additional powers by the central government in Washington, DC, the federal government became stronger, which cramped the ability of the states to effectively limit the federal level. The supreme court gradually became recognized as having the final word on the validity of all laws, state and federal.

The attempt by the founders to limit the scope of areas where government had certain power, primarily in article 1, section 8 of the constitution, has been undermined by re-interpretation of the various powers listed. Additional powers were asserted as well, where the constitution did not explicitly define the powers and rights of individuals (and the powers retained by the states).

The supreme court defers regularly to the power of congress rather than holding it to a strict understanding of the powers, and in disregard of the 9th and 10th amendments. Examples of re-interpretation include “the commerce clause,” “the necessary and proper clause” and “the general welfare clause.” Whereas commerce used to mean transporting for the purpose of trade, it has taken on a usage that allows congress to regulate all activities that have a potential for affecting interstate trade. What necessary and proper once meant has been replaced with “convenient.” General welfare has turned into specific welfare or welfare for interest groups.

Checks and balances or separation of powers in theory was supposed to limit the power of each branch of the government by hemming it in with opposition or control by another branch. The constitution nowhere contains an express injunction to preserve the boundaries of the three broad powers it grants, nor does it expressly enjoin maintenance of a system of checks and balances. However, it gives direction toward this with several provisions:

1. Congress may pass laws........but the President can veto them.
2. The President can veto laws.......but Congress can override the veto with a 2/3 vote.
3. The President and Congress may agree on a law..........but the Supreme Court can declare a law unconsitutional.
4. The President can appoint Judges and other government officials.......but Senate must approve them.
5. Supreme Court judges have life terms.......but they can be impeached

Theoretically, you can make a distinction between the separation of powers and checks and balances, although most people equate the two. The founding fathers still had fresh memories of a mother country where powers were separated, but they were not balanced. The repair for this was to not allow unrestricted use of Congress’ sole power to legislate. It was made subject to executive veto.

The Hole in the Scheme

The big problems with this is that the branches can get around the limitations through collusion or neglect. It is also the case that by analogy of the division of labor in the market, such a division of function enables a higher degree of functioning, i.e., capable of producing more of what they want. This can easily turn into "producing more of what someone else does not want." The division of functions kept the branches from interfering with each other and from diminishing the power of the others. However this did not necessarily protect the interest of the people.

Many experts have described the weaknesses in the separation of powers. However, the best critique of this that I have found is that of Jonathan Wilde at Highclearing.com. He found in his study of the problem that the branches of government do not effectively constrain each other based on protection of their own domains. One branch may be permitted to increase its power inappropriately when no other branch is threatened or diminished in power. Alternatively the other branches may perceive the general increase of government power due to such actions by one branch as of benefit to themselves also.

It may not only be permitted, but encourage to do so (see the history of “log-rolling” and “back-scratching,” and the diverse Supreme Court decisions deferring to Congress rather than to the People). There are surely powers of the various branches that cannot or usually do not affect the other branches. Are these “free for the taking?” The government branch in question may have a blank check to go ahead and do what they will in ways that do not infringe on the other branches. It should not necessarily have this.

Even when some branches of the government are not harmed by another branch's power-grabs, someone else loses: the states and/or the people. Restrictions on the Liberty of the People could then result. No branch of government has the sole responsibility, without the influence of lobbyists, to protect this Liberty. We are left with only the weak remedy of periodic elections, replacing Senators or Representatives or Presidents but which affect the court system ever so indirectly.

Weakening of the Bill of Rights

Likewise, the rights of the people defined in the first 10 amendments to the constitution have all been restricted in some way, except for the third amendment, the freedom from quartering soldiers and the seventh amendment, the right to a jury trial. Some examples:

• SPEECH. When the president is out in the public, demonstrations are limited to certain designated places not directly visible to the president, his entourage and the public sympathetic to his causes. Freedom of speech and of the press has had many small limitations placed upon them. The “political correctness” movement imposes a quasi-legal restriction on the opinions people can express. Regulations impose regulations on what is published and broadcast. Reporters have had to snitch on their anonymous sources.

• GUNS. The National Firearms Act placed several limitations on the right of the people to keep and bear arms.

• SECURITY. Phone conversations are tapped without a warrant; a car that was involved in a drug crime is no longer yours even if you are innocent.

• PROPERTY. Taking of private property for public uses has been stretched to allow government units to take property to give it to other private parties; if you are tried and found not guilty in a state court, the federal government can try you again for a slightly different crime; your property can be condemned even if it is not to be put to public use.

• PROPER PROCEDURE OF JUSTICE. Trials no longer need to be speedy or public; if your are a non-citizen you do not have access to the evidence against you if it includes "state secrets."

• EXCESSIVE BAIL. Millions of dollars of bond are required to be posted if you are accused of certain crimes, in other words, you have no chance of going about freely to build your defense case.

• UNENUMERATED RIGHTS. The ninth amendment is treated like an "ink blot," an instruction to congress that supposedly requires the courts to invent individual rights that have not been written into law.

• NON-DELEGATED POWERS. The tenth amendment is ignored. Powers are assumed by the federal government as long as they are not expressly prohibited.

The representative form of our republic allows the people to change the government. But what if we only could buy the cars we drive the same way? Everyone would have to buy the car that the majority likes. The next car could also be a totally unknown entity!

Elections are to allow the citizens to remove and replace politicians who do not do their jobs as they are supposed to. However, moneyed people and organizations influence the outcome of elections by their prestige and campaign contributions.

Government spending limits are put in place (but not yet in the constitution) to hold back the steady increases in spending and taxation. However, these limits are continuously raised, legally, to permit growth of government. Term limits back up the power of voters to limit the control that long-term incumbents sometimes gain. Campaign spending limits, which was supposed to control the unduly strong influence of people with deep pockets. However, to the extent that these controls are also imposed on citizens without large sums of money, who pool their resources at the grass-roots level, this limit hurts the right to free speech.

The Solution: the Market

A further development of the separation of powers principle could place effective control of government in the hands of the people. Separate the branches of government further, in fact break them up, allow functions of government to become competitive agencies (be made private). Allow multiple agencies to offer adjudicative services, several agencies to provide for public safety and defense against military attacks.

This limit would be necessary: banning monopolies of all kinds. Monopolies are always shortlived in a free market; without the power to use force, businesses will always leave the market open to new entries. The exception would be profitable a business that maintained lower prices to customers than anyone else is able to (a benign monopoly). But without coercion they are not guaranteed permanent domination.

The prohibition against monopolies would only need to apply to governments or agencies supplying services or products in the fields of police protection, judging cases of crimes and torts, and national defense. At this point the use of the word “government” ceases to have further meaning. Even “governance” is over-loaded with some sense of “being ruled” or “demanding obedience.”

Depoliticize the Rule of Law

1. Private agencies already today are supplying a kind of police protection in the form of securing private institutions, businesses and enclosed communities.
2. Arbitration and mediation services are already in much use, when agreed to by contracting parties, which would be expanded to handle all acts of physical harm or the threat thereof.
3. A form of agencies would develop the expertise and insurance coverage. Some would develop to build the military means to withstand attack from abroad, for which businesses would have the biggest stake in and of which cost they would be willing to pay the most.

The case for these changes has been thoroughly documented in the works of (among others) Murray Rothbard, Linda and Morris Tannehill, Bruce Benson, and Randy Barnett.

The final result, as Randy Barnett has called it, would be a “polycentric constitutional ordering” of power. Each one of us would have the choice of which agency among several to contract with for police protection, military defense and judging acts of physical harm or the threat thereof. All other so-called “public goods” would be privatized, from water, roads, retirement funding, parks management.

Only thus will the dangers of unlimited government be gone.