Friday - July 16, 2010
Checks and Balances Failed
The Europeans are a good lesson for us to watch, but I fear it is too late. Daniel Hannan, a Brit member of the European Parliament who is against the concept of a European Parliament, reports the latest shenanigans in the EU. It seems that the EU has created a vast foreign office. This was done quietly and over time, they have had a huge budget for quite some time without officially existing. They now are official and much larger. The citizens of the various countries have little impact on what happens in their name and with their money, the EU government is a leviathan that is consuming with seemingly little in the way of objection by its people.
In our nation, the federal government is constrained by the tenth amendment and the Bill of Rights and various other amendments to be of limited power. To restrain any one branch of government from getting too powerful, a scheme of checks and balances was created. The president can't create laws, the congress can't enforce them, and the judiciary is independent and can stop either branch with its paper pronouncements. The people are responsible for not allowing the judiciary to be ignored, though it has happened from time to time. Andrew Jackson famously declared that "John Marshall has made his decision, now let him enforce it," in response to the Supreme Court's decision in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
That balance of powers has a major flaw whose results we're now seeing only too plainly. Rather than limit the power of government, our checks and balances have finally served to limit only the people's checks on the extent of each branch's power. The perversion started quite some time ago, becoming most noticeable during Reconstruction, with major expansions made after Roosevelt's attempt at court packing and the New Deal, and then the Warren Court's rewriting of the legal landscape, and now finally the Pelosi/Reid Congress for the past four years has loosed all restraints. That's not meant to let either party off the hook, both parties and all three branches of government are equally guilty.
When you study for the bar exam, one of the hints in the subject of Constitutional law is that if an answer offered is the Tenth Amendment, it will always be the wrong answer. The Tenth Amendment has so little power that even in academia it is given no regard whatsoever.
The checks and balances between the branches of the federal government failed to check the power of the federal government. It only succeeded in protecting each branch's share of power, and each branch is more than happy to expand its own power. That is, each branch retains its portion of the power by not allowing the executive to control the purse strings, etc., but there has been no check or balance on the federal government's taking power from the states or the people. The 17th Amendment ended the states' input on federal power.
The only remaining check on federal power has been the ballot box, and that has proven to be singularly ineffective. With each encroachment of power, the people have become more and more used to ceding self-determination, more and more used to receiving federal benefits and entitlements, and more and more used to accepting government presence in every part of their lives.
Just as Europeans have no ability to stop the EU leviathan from expanding its power, despite widespread disapproval in several referenda, so too are we succumbing to grotesque over reaches of federal power.
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