Balance Of Power

In the early years of the eighteenth century, Baron De Montesquieu wrote his famous The Spirit of the Laws in which he noted:

“. . .there is no liberty, if the judiciary power be not separated from the legislative and the executive. Were it joined with the legislative, the life and liberty of the subjects would be subjected to arbitrary control; for the judge would then be legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

This principle, the separation of power, was the cornerstone on which this nation was founded. The founding fathers had read Montesquieu and took what he said to heart as they knew first-hand of which he spoke. Our lessons are just beginning.

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The Power of the President

I want to develop an idea I mentioned in passing in an earlier post. It has to do with the limited power of the President and the absurd promises our presidential candidates make about what they will do when elected — given the fact that by themselves they cannot do very much at all. Witness Barack Obama’s pathetic attempts to promote some sort of gun control.

Our Constitution borrows from the pages of Montesquieu’s The Spirit of the Laws in dividing power among the Legislative, Executive, and Judicial. Limiting power was a prime concern among political thinkers in the age of Enlightenment as they sought to wean themselves from the whims of various corrupt Monarchs. If one reads our Constitution one immediately realizes that Congress is the main body in the thinking of those who wrote and later adopted that document. The very first Article in the document deals with legislative powers. There are ten Sections in that Article. On the other hand, there are only four Sections in the Article dealing with the limited powers of the President. Most of them stress the need for the legislative body to “advise and consent” or the manner of election and impeachment of the president. Clearly, those men were worried that they might be creating another monarch. And this they did not want — even with George Washington ready at hand.

The ten sections under Article One describing the powers of the legislative body are detailed and extensive. They go on for pages and outline a body that not only manages the purse strings, but also has the capacity to control the excessive urge to power of any president. And if those latter restraints are insufficient there is always the Supreme Court that further limits the President who might wish to get too big for his or her britches. The document is all about limiting power because these men knew better than anyone how power corrupts and absolute power corrupts absolutely, as Lord Acton once said.  And the reason these men put so much faith in the legislative branch is because they were convinced that those elected would represent the will of the body politic. In the small country at that time they envisioned the representatives serving with little remuneration for a very short time and in that time visiting their constituents on a regular basis and merely parroting the wishes of those who voted them into office. If the representatives varied too much from the will of the voters, they would be voted out. That was a given at the time, as is clear from the Federalist Papers.

We have seen how this hasn’t worked out, of course, with no term limits on those elected to Congress and huge salaries now attached to political offices. Men and women get into office and their primary urge is to remain there as long as possible. They don’t give a hoot for the needs of their constituents, since they answer only to the wealthy persons whose money can guarantee them a long term in office. The founders never saw it coming.

This is why, in the end, when we are thinking about which political candidate might make a good president we should be thinking about which candidate could work most effectively with a Congress that holds the purse strings and which is the seat of power in this country. Personally, I think Bernie Sanders stands out above the rest of the presidential candidates, because he has the best sense of what would be good for his country and is willing to take on the powers that be. He realizes, as the rest of the candidates do not, that the real contest in this country is not between the Republicans and the Democrats but between the corporations that would take all the power and the people who are supposed to have it. But, the question is, can he work effectively with what has become a recalcitrant (for want of a better word) Congress tied to the wealthy by their purse strings?  I suspect not, sad to say. I suspect he is regarded as an outsider and would find himself running in place — unless by some miracle the voters manage to alter the make-up of the Congress and give him enough legislators to work with.

That, it seems to me, is the main question.

Do Corporations Have Rights?

There is no mention of corporations in either the Declaration of Independence or the Constitution of the United States. But as early as 1819 in Dartmouth College vs. Woodward the Supreme Court suggested that corporations were entitled to make and enforce contracts, thus implying early on that they should be treated as persons with rights protected by the Constitution. By 1886 it was simply assumed “without argument” that corporations are persons. The absurdity of this interpretation became glaring clear not long ago when the Supreme Court decided in the “Citizen’s United” case that spending limits should not be placed on corporations under protection of the First Amendment. That is, corporations should be allowed to spend as much on political campaigns as they see fit on the grounds that, as persons, they had a right to freedom of speech. Yes, that’s right, corporations are not only persons, they are entitled to give politicians as much money as they want under the aegis of freedom of speech.

None of these court decisions considered the rather basic fact that if corporations have rights they must also have responsibilities. While fines are levied against corporations in some cases for the atrocities they commit they can be “held responsible” for those acts, but this can hardly be called “having responsibilities.” The only responsibilities corporations acknowledge are to their stockholders and these, too, can hardly be called “responsibilities,” since it is simply what corporations are supposed to do — namely, maximize profits. There is very little, if any, talk about responsibilities to “stakeholders” in corporate inner circles — or about moral or ethical responsibilities, either. Further, it’s never clear just who the corporations are. Are they the CEOs or the boards that govern them? Or are they the stockholders? Or are they the engineer who turns the handle that releases poisonous gas and kills 2500 people? The question threatens to become positively metaphysical. But assigning corporations rights without acknowledging their responsibilities makes no sense whatever. Rights without responsibilities can apply only to children and the mentally challenged, otherwise the notion is absurd on its face. (I hesitate to discuss the question whether corporations can be said to be mentally challenged.)

I have always thought that the concept of balance of powers under the Constitution is one of the most brilliant ideas ever conceived by the human mind. It arose, of course, in a French mind in the person of Montesquieu in the seventeenth century who saw this balance as necessary for the protection of individuals in a political group. Kings are not to be trusted. Presidents are not to be trusted. Those in power in general are not to be trusted. But if we balance the power among the executive, legislators and judges we can control the abuse that nearly always follows from too much power in the hands of one person. That’s the idea.

The United States Supreme Court was the result of this thinking, of course, as it worked its way down through John Locke, Thomas Jefferson,  and James Madison. And it is an inspired notion: a court that would be above political influence since members are not elected but appointed for life. And, indeed, some of the decisions of the court over the years have been brilliant. But the decision in January of 2010 to grant corporations the status of persons with rights under the First Amendment is simply stupid, if not absurd — as noted above. And it certainly does not appear to have been apolitical. Not only are corporations not persons, unlimited donations to a political election clearly do not constitute free speech.

In any event, the concept of “person” is a moral concept fully explored in the ethics of Immanuel Kant and previously used by the Founders to apply to citizens with both rights and responsibilities. As Kant examined the notion, it was held that persons were “ends in themselves,” and never a means to an end. In other words it is morally wrong to use others for one’s own purposes: Kant stressed responsibilities, or duties, over rights. It is precisely because we can recognize our duties to other persons (who are also ends in themselves) that we have rights. Responsibilities are primary; rights are derivative. But corporations are clearly not “ends in themselves”; they are simply a means to an end, namely, profit. Further, as mentioned, they have no responsibilities. The appropriation of a moral concept for legal purposes by the Court in 1819 and applied to an entity that was not even human was inappropriate; extending the notion further as the court did recently borders on the bizarre.

The absurdity of this decision can be seen by considering what other rights are guaranteed to persons under the First Amendment, namely, the right to practice religion as one sees fit, to assemble, and to petition the government for redress of grievances. The Constitution also guarantees every citizen the right to vote and to run for national office. Is the Court now saying that a corporation can run for President if it is thirty-five years old? Nonsense! But just as it would be absurd to think about corporations assembling, practicing religion, running for public office, or voting, it is also absurd to think that “they” have the right to free speech — assuming that this is what giving stacks of money to political candidates amounts to. This has to be one of the worst decisions ever to come from this Court and it deserves to be overthrown by a Constitutional amendment, and a movement to do so is afoot. That movement, however, seems sluggish at best — a reflection, perhaps, of the population’s general indifference to political issues and the unwillingness of those in power to bite the hand that feeds them.

Liberal Individualism

British and American political thought arise out of the Enlightenment tradition that places the individual at the center of the political state. For thinkers like John Locke, Montesquieu, Rousseau, and even Thomas Hobbes thinking about politics begins with the individual in what a number of them liked to call a “state of nature.” By placing their emphasis on the individual and beginning the discussion about civic membership with focus on human rights — as opposed to human obligations, which are the other side of human rights — they gave birth to what British MP and author Jesse Norman calls “liberal individualism.” The words, taken in their original meaning, suggest the emphasis of much of contemporary political and even economic thought on the rights of individuals and the notion that the human ideal is one of the self-sufficient individual with complete freedom from the restraints placed on them by civil laws. This thinking permeates much of contemporary political theory by both conservatives and liberals. As Rousseau would have it, the central idea in political thought is the question how a person can obey a law and in doing so remain free — implying that the paramount good in political societies is human freedom. The issue is not what sorts of things a citizen must do in order to become a good citizen and practice what the Greeks called “civic virtue.” The issue focuses almost exclusively on individual rights and freedom, freedom from restraints and the right to do as we want.

This Enlightenment view, as Norman has argued in his excellent book on Edmund Burke, is diametrically opposed to the classical, Greek and Roman view of politics that begins with the notion that human beings are social animals — even, as Aristotle said, political animals — and cannot be taken out of the social context without stripping them of their essential humanity. As Aristotle would have it, society makes possible those things that make Homo sapiens specifically human — such things as law, speech, and morality. A man or a woman taken completely out of the social context that defines them is not fully human: the hermit living alone in a cave is more nearly an animal, struggling to survive, having no ties with others, and lacking in the ability to communicate with others of his kind. Such a person is the imagined man in a “state of nature,” as Burke would have it. And such a man is not one we would want to emulate, one would think. And yet we do, unknowingly, in our adoration of the idea of the individual free to do his or her own thing.

Norman, in his study of Burke, is convinced that this peculiar Enlightenment notion of liberal individualism is the root cause of today’s stress on the self  and the resulting narcissism that permeates our culture and arises largely from viewing the individual in isolation. Much has been lost, in Norman’s view, by ignoring the classical view of human beings as social animals. One of the few thinkers who refused to buy into the Enlightenment view of liberal individualism was Edmund Burke who is usually labelled as a “conservative” thinker even though much of his thought is remarkably in line with such familiar “liberal” or “moderate” politicians as Abraham Lincoln and Theodore Roosevelt. In any event, labels don’t really help us to comprehend where a person stands on complex philosophical and political issues, and the term “conservative” may be the least helpful label of all. It is certainly the case, for example, that Burke would be appalled by the behavior of so many self-styled “conservatives” in America who pursue self-interest and unlimited wealth without any consideration whatever for the obligations they have as citizens.  Norman puts it well in the final paragraph of his rather laudatory study of Burke when he notes that:

“. . .Burke also questions the present self-image of politics and the media, an empty post-modernism in which there is no truth, but only different kinds of narrative deployed in the service of power. Instead, he offers values and principles that do not change, the sanction of history and moral authenticity of those willing to give up power to principle. He gives us again the lost language of politics: a language of honor, loyalty, duty, and wisdom, which can never be adequately captured in any spreadsheet or economic model. And he highlights the importance of moderate religious observance and moral community as a source of shared norms, and the role of human creativity and imagination in re-enchanting the world and filling it with meaning.”

Those who like to think of themselves as politically conservative would do well to read and ponder the writings of Edmund Burke — as would we all. It is certainly the case that the political landscape is barren at present and would benefit greatly by thinking past profit, power, and personal advancement to the values listed above. And it is certainly the case that we could all benefit from another way of looking at ourselves — not in isolation, free and unfettered, but as members of a body politic and as such concerned about others. Therein may in fact lie true self-realization and even happiness — even, perhaps, true individualism.

Pandora’s Box

The Supreme Court recently indicated that it will address the question of campaign spending limits. We have already seen how the court leans on this issue in the “Citizens United v. Federal Election Commission” case in which the court, in its wisdom, saw fit to insist that corporations are persons and in the name of “free speech” should be allowed to contribute to politicians as much as any wealthy individual would. The current case will determine whether there are any limits whatever on what a person (or a corporation) can give to a political candidate and, given that the court agreed to hear the case, the bets are that the court will remove those limits entirely, which are minimal as things now stand. As we are told in a recent HuffPost story;

WASHINGTON — The Supreme Court announced Tuesday that it will hear a case challenging the per-biennial cycle limit on campaign contributions from individuals.

The case, McCutcheon v. Federal Election Commission, argues that the limit on what individuals are allowed to give candidates ($46,200 per two-year cycle) and parties and PACs ($70,800 per two-year cycle) is an unconstitutional violation of the individual donor’s free speech rights.

The present court has tended to lean to the right on issues such as this since Sandra Day O’Connor left the court. Thus, despite the 1976 Buckley v. Valeo Supreme Court decision, which upheld limits set in 1971 on how much money an individual could give to any one candidate, the present Court is almost certain to lift those limits entirely in the name of free speech. Many believe it is a foregone conclusion. But then so was the decision regarding the Affordable Care Act which the Supreme Court upheld to the surprise of nearly every student of the history of the Court. So there is hope.

The problem stems from the fact that the Constitution was written at a time when the major concern was the abuse of power on the part of the Executive. The framers understood power and the need for balance, of course. They had read John Locke and Montesquieu and were very careful to see to it that no one branch of the government became so powerful that it overshadowed the other two, though they did tend to err a bit on the side of the Senate. But the framers never fully considered the effects of great wealth on the workings of an ostensibly democratic government — though several of them, like Thomas Jefferson, saw the possibilities: recall his concern that “a rich country cannot long be a free one.”

In any event, there is nothing in the Constitution about corporations and about PACs or about the limits of spending on political candidates. This allows the Court to refer to whatever portion of the document that seems to them to be appropriate to make a case for whatever decision they regard as politically expedient — not unlike those who read portions of the Bible to support their own take on Judeo-Christian teachings. And given that this Court leans to the right, it is most likely that we will see all limits removed from campaign spending, in which case we can conclude with assurance that the government will henceforth go to the highest bidder.

Pandora’s Box was opened with “Citizens United” and we saw how ugly that got in the last election. What we are about to see, in all probability, is all of the remaining contents of that box in the coming months and years. Barring a Constitutional amendment on spending limits, or a sudden and unexpected shift to the left by this court, we may be witnessing the end of America’s experiment with democratic government.

Judicial Activism

Thomas Jefferson was supposed to have two portraits in his library. One was of John Locke, his favorite philosopher. Locke was one of the first thinkers to espouse the notion that power should be divided and he insisted that the legislature be separated from the executive in any viable political government. He did not separate the judicial from the legislative because he thought, correctly as it happens, that a judge in effect legislates when he or she adjudicates. Interpretation of law constitutes law-making, in effect.

In helping to think through the basis for the American Constitution, Jefferson and his colleagues decided to go with Montesquieu’s determination to separate the judicial from the legislative, insisting that these are two separate functions and should be kept apart. He was wrong. So were the framers of our Constitution. They should have listened to Locke!

The recent decision on the Affordable Care Act would appear to be a decision that favors the sitting President and his attempts at health care reform. But if legal theorists are correct, Obama wins the battle, but the conservatives win the war. The government argued for the mandate that requires all Americans to have health insurance on the basis of the so-called “commerce clause.” The Court rejected this argument, but allowed the mandate on the grounds that it is a form of tax. This was Chief Justice John Roberts’ determination, and it seemed a clear victory for “Obamacare.” However, by rejecting the government’s case basing the mandate on the commerce clause and insisting instead that it is a type of tax Roberts, in particular, accomplished two things at once: he helped give Mitt Romney a full house in the poker game which is the race for the Presidency: Romney can claim — as he has already started to do — that Obama has raised taxes on the Americans and the Republicans can play this hand right through to the big pot they so badly want, the White House. We shall see, But, in the long term, by reasoning against the commerce clause, the Court has in effect limited the ability of the Congress to legislate on major social issues. As a recent op-ed piece by Tom Scocca  in the St. Paul Pioneer Press for June 29th puts it,

This is a substantial rollback of Congress’ regulatory powers, and the chief justice knows it. It is what Roberts has been pursuing ever since he signed up with the Federalist Society. In 2005, Sen. Barack Obama spoke in opposition to Roberts’ nomination, saying he did not trust his political philosophy on tough questions such as “whether the Commerce Clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce.” Thursday, Roberts did what Obama predicted he would do.

Roberts’ genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory. Obama wins on policy, this time. And Roberts rewrites Congress’ power to regulate, opening the door for countless future challenges. In the long term, supporters of curtailing the federal government should be glad to have made that trade.

In addition, in an op-ed piece by Neal Katyal in the New York Times (June 29th) we read that. . . there is a danger here too: that courts are given the power to rewrite legislation altogether, and leave legislation in place (like health care) in a form that Congress might never have approved and that would be difficult to ever repeal.. . .Americans are growing increasingly comfortable, if not always happy, with the idea of nine men and women in Washington handing down rulings that remove decisions from the legislative process or even rewrite legislation altogether.

We should be delighted that Obama won this battle, because countless thousands of American citizens will have medical insurance who were unable to get it previously. That is a good thing. But if these editorials are correct — and there are a number of other legal theorists who echo this point of view — then we may pay a price in the long run. The Congress may ultimately have been rendered even more impotent than it already is by this decision. Locke was right: the courts are an arm of the legislature. In fact, they may prove to be the most powerful arm of the legislature.

Corporate Rights?

There is no mention of corporations in either the Declaration of Independence or the Constitution of the United States. But as early as 1819 in Dartmouth College vs. Woodward the Supreme Court suggested that corporations were entitled to make and enforce contracts, thus implying early on that they should be treated as persons with rights protected by the Constitution. By 1886 it was simply assumed “without argument” that corporations are persons. The absurdity of this interpretation became glaring clear recently when the Supreme Court decided in its wisdom that spending limits should not be placed on corporations under protection of the First Amendment. That is, corporations should be allowed to spend as much on political campaigns as they see fit on the grounds of freedom of speech. Yes, that’s right, corporations are not only persons, they are entitled to give politicians as much money as they want under the aegis of freedom of speech.

I have always thought that the balance of powers under the Constitution is one of the most brilliant ideas ever conceived by the human mind. It arose, of course, in a French mind in the person of Montesquieu in the seventeenth century who saw this balance as necessary for the protection of individuals in a political group. Kings are not to be trusted. Presidents are not to be trusted. But if we balance their power with that of legislators and judges we can control the abuse that nearly always follows from too much power in the hands of one person.

The Supreme Court was the result of this thinking, of course, as it trickled down through John Locke and Thomas Jefferson. And it is an inspired notion: a court that would be above political influence since members are not elected but appointed for life. And, indeed, some of the decisions of the court over the years have been brilliant. But the decision in January of 2010 to grant corporations rights under the First Amendment is simply stupid. Not only are corporations not persons, unlimited donations to a political election clearly do not constitute free speech.

The concept of “person” is a moral concept fully explored in the ethics of Immanuel Kant and used by the Founders to apply to citizens with rights and responsibilities. As Kant examined the notion, it was held that persons were “ends in themselves,” and never a means to an end. In other words it is morally wrong to use others for one’s own purposes. But corporations are clearly not “ends in themselves,” and are putatively a means to an end, namely, profit. The appropriation of a moral concept for legal purposes by the Court in 1819 and applied to an entity that was not even human was inappropriate, but its use in 2010 is nonsensical.

The absurdity of this decision can be seen by considering what other rights are guaranteed to persons under the First Amendment, namely, the right to practice religion as one sees fit, to assemble, and to petition the government for redress of grievances. The Constitution also guarantees every citizen the right to vote and to run for national office. Is the Court now saying that a corporation can run for President if it is thirty-five years old? Nonsense! But just as it would be absurd to think about corporations assembling, practicing religion, running for public office, or voting, it is also absurd to think that “they” have the right to free speech — assuming that this is what giving tons of money to political candidates amounts to. This has to be one of the worst decisions ever to come from this Court.