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The Myth of Checks and Balances
by Bevin Chu
by Bevin Chu
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A Pernicious Myth
One of the most pernicious myths about democracies, and it pains me
to say, even constitutional republics, is the Myth of Checks and Balances.
Most of us were indoctrinated with this myth in junior high school
and high school social studies class. I know I was.
According to this myth, also known as the Doctrine of the
Separation of Powers, distributing the powers of a government among several
branches prevents the undue concentration of power in any single branch.
As the Encyclopedia Britannica explains:
[The Separation of Powers is the] division of the legislative,
executive, and judicial functions of government among separate and independent
bodies. Such a separation limits the possibility of arbitrary excesses by
government, since the sanction of all three branches is required for the
making, executing, and administering of laws. The concept received its first
modern formulation in the work of Baron de Montesquieu, who declared it the
best way to safeguard liberty; he influenced the framers of the Constitution of
the United States, who in turn influenced the writers of 19th- and 20th-century
constitutions. See also checks and balances.
A Google Images search for "Separation of Powers" yields dozens of
diagrams purporting to explain how the Doctrine of the Separation of Powers
protects us from government tyranny.
Google Images search: Separation of Powers
The Myth Exposed
Unfortunately political systems in the real world do not function
as illustrated in these diagrams.
Unfortunately the division of the functions of government into
legislative, executive, and judicial branches does not prevent arbitrary
excesses by government.
Unfortunately "separating the powers" doesn't really separate the
powers, and doesn't really result in "separate and independence bodies checking
and balancing each other."
The Separation is Illusory, The Power is Real
The reason why is not mysterious. The reason why is quite simple.
The reason why "separating the powers" doesn't result in separate
and independent bodies checking and balancing each other, is that the
separation is not real. The separation is illusory. The separation is nothing
more than wishful thinking.
In fact the "separate and independent bodies" remain inseparable
parts of the same government, the one government, the only government that the
limited government, "minarchist" paradigm permits within any given jurisdiction.
This government perpetuates its existence by robbing individuals at
gunpoint. It refers to these acts of armed robbery as "taxation," as if calling
its crime by some other name absolved it of guilt.
As an old joke has it, "The only difference between the Mafia and
the government is a flag." The joke is funny because it is true.
Every member of an organized crime family lives off the same
protection money extorted at gunpoint from hapless shopkeepers and working men
unfortunate enough to live within the crime family's reach.
In what sense can the bosses, underbosses, consiglieri, and
soldiers of the same crime family be considered "separate and independent" from
each other?
By the same token, every official of a monopolistic state lives off
the same tax revenues extorted at gunpoint from hapless "taxpayers" unfortunate
enough to live within the government's reach.
In what sense can members of such a criminal enterprise be
considered "separate and independent" from each other?
Can we really expect officials who are part of such a criminal
enterprise not to perceive each other as fellow predators, and us, the
taxpayers, as their common prey?
Can we really expect officials who are part of such a criminal
enterprise not to perceive each other as members of the same pack of wolves,
and us, the taxpayers, as members of the same flock of sheep?
Can we really expect officials who are part of such a criminal
enterprise to perceive each other as natural enemies and therefore check and
balance each other?
Resistance against such a unified "crime family with a flag" is
virtually impossible. The proximate reason is that it has more goons with guns.
But the ultimate reason is that the overwhelming majority of citizens in
"advanced nations" believe they can't live without a monopolistic state, and
their collective behavior perpetuates its existence.
Citizens who believe they can't live without a monopolistic state
are the political counterpart of battered wives, who believe they can't live
without their abusive husbands, and who insist that "deep down" their abusers
"really love them."
The difference is that a battered wife who rationalizes away her
husband's abusive treatment of her victimizes only herself.
Citizens who believe in and demand the perpetuation of monopolistic
states victimize not only themselves, but also fellow citizens who know better.
The Godfather (1972, directed by Francis Ford Coppola, written by
Mario Puzo)
Michael Corleone: My father is no different than any powerful man,
any man with power, like a president or senator.
Kay Adams: Do you know how naïve you sound, Michael? Presidents and
senators don't have men killed.
Michael Corleone: Oh. Who's being naïve, Kay?
Why the Executive Branch always becomes The Government
In theory, a democratically elected president is merely the
highest-ranking official in one of three or more coequal branches of
government, the executive branch.
In reality, in any monopolistic state with a presidential system,
the president is an elective dictator, the legislature is a debating society,
and the judiciary is a rubber stamp. Real world experience has demonstrated
that over time, the executive invariably co-opts the judiciary and marginalizes
the legislature.
In theory, the coequal branches of government provide "checks and
balances" upon each other, preventing them from ganging up upon the individual
citizens they have sworn to protect and serve.
In reality, because the executive is the branch that has been
delegated the power to "execute" policy (pun intended), it invariably usurps
any and all powers delegated to the other branches of a monopolistic state.
Real world experience has shown that "limited government" inevitably morphs
into unlimited government, and that the executive is always the branch that
winds up monopolizing that limitless power. It makes no difference whether the
executive was popularly elected, self-appointed, or hereditary.
As George W. Bush put it quite bluntly, "I'm the decider and I
decide what's best."
The Decider: Bush as Caesar
The Decider: Bush as Superman, by R. Sikoryak
Baron de Montesquieu was dead right when he noted that there can be
no liberty where the legislative and executive powers are united in the same
person, or body of magistrates or if the power of judging is not separated from
the legislative and executive powers.
James Madison was dead right when he noted that the accumulation of
all powers, legislative, executive, and judiciary, in the same hands, whether
of one, a few, or many, and whether hereditary, self-appointed, or elective,
may justly be pronounced the very definition of tyranny.
Montesquieu and Madison unfortunately, were dead wrong about how
far mankind would have to go to prevent the uniting and accumulation of all
powers in the same hands.
Montesquieu and Madison earnestly believed that establishing
constitutional republics with tripartite divisions of powers would be
sufficient.
Given their historical context, Montesquieu and Madison's failure
to champion market anarchism was understandable. The history of medieval
Iceland had been lost to mainstream political awareness.
Montesquieu and Madison did not realize that only a market
anarchist system, featuring voluntarily funded Private Defense Agencies (PDAs),
vigorously competing against each other in the open market place, could ensure
a genuine separation of powers and provide genuine checks and balances against
tyranny.
A Thought Experiment
To better understand why the "separation of powers" doesn't really
result in "separate branches of government" checking and balancing each other,"
let's try a little thought experiment.
Believers in Big Government, particularly self-styled "champions of
democracy," love to portray government as a "public service," and government
officials as "public servants."
Market anarchists know this is nonsense, but let's pretend we buy
this "service provider" nonsense for the moment, and see where it leads.
Let's say for the sake of argument that government is a service
provider, and that the service it provides is the use of force, specifically, a
military to defend against foreign invaders, police to protect against domestic
criminals, and a court system to adjudicate legal disputes.
Now suppose that instead of military, police, and courts, the
service or product provided is computer software and software support services.
How many netizens would accept an arrangement in which a single
software company, say Microsoft, would be granted a territorial monopoly in the
provision of computer software and software support services where they live?
In other words, no other company would be permitted to provide computer
software and software support services, only Microsoft.
How many netizens would be mollified by solemn assurances from
founder Bill Gates that Microsoft's exclusive franchise would not result in
arbitrary excesses because the Microsoft corporation would be divided into
three "separate and independent" divisions, each charged with different
functions?
One division would be in charge of formulating Microsoft policy.
Another division would be charge of executing Microsoft policy. Another
division would be in charge of verifying whether the Microsoft policy being
formulated and executed was in conformance with the Microsoft company charter.
How many netizens would trust such an arrangement to ensure that
Microsoft would deliver well-coded software at competitive market prices?
Wouldn't they scream their heads off, insisting that Microsoft as a
de facto monopoly is already sitting on its behind, doling out bug-ridden
bloatware behind schedule at exorbitant prices, and that as a de jure monopoly
it would be infinitely worse?
And wouldn't they be right?
See: What's so Bad about Microsoft?
So why don't they scream as loud or even louder about the
government's de jure monopoly in the use of brute force?
After all, Microsoft may be able to flood the market with
overpriced, bug-ridden bloatware, but it certainly can't force us to buy it. It
can't compel us to upgrade to Windows Vista upon threat of arrest and
imprisonment, at least not without favoritism from a monopolistic state.
Contrast this with so-called democratic governments, which have
been empowered by self-styled "champions of freedom and human rights" to compel
us to subscribe to its products and services - or else.
A Reluctant Anarchist
I never wanted to become an anarchist, even a free market
anarchist. I wanted to remain a constitutional republican in the tradition of
the French Physiocrats, the British Classical Liberals, and the American
Founding Fathers.
I became an advocate of market anarchism reluctantly, after
concluding that the limited government "minarchist" paradigm simply does not
work as advertised.
Until three years ago, around 2004, I still held out hope that
Checks and Balances would in fact check and balance, and that the Doctrine of
the Separation of Powers would be vindicated.
Political evolution, or rather, devolution within the American
Imperium of Bill Clinton and George W. Bush; and within the Taiwanese
kleptocracy of Lee Teng-hui and Chen Shui-bian, disabused me of any such hopes.
The harsh reality is that the Doctrine of the Separation of Powers,
within the context of a monopolistic state, is a contradiction in terms.
The harsh reality is that as long as a nation is ruled by a
conventional monopolistic state rather than Private Defense Agencies, any
allegedly "separate and independent branches" of government will always
perceive themselves as integral parts of the same government, the one
government, the only government within any given jurisdiction.
No matter how one attempts to divide a monopolistic state into
"branches" the reality is that all such "branches" live off the same "tax
revenues," better known as protection money, extracted by force from
"taxpayers," better known as victims of extortion.
The Separation of Powers was supposed to be the primary firewall
between constitutional republicanism and democracy. Tragically it has proven to
be inadequate. Given enough time, it burns right through.
Constitutional republicanism is unquestionably superior to
democracy. Unfortunately, that's just not good enough. Constitutional
republicanism, given enough time, degenerates into democracy, aka elective
dictatorship.
Democracy meanwhile, takes no time at all to degenerate into
dictatorship. That's because democracy isn't separated from dictatorship by any
firewalls whatsoever. That's because democracy is a form of dictatorship. It
always was, and it always will be.
A terrific political cartoon. But an even better caption would be:
"We think people should be separated from power so that they can't commit
crimes."
It is high time defenders of natural rights and individual liberty
forsook their irrational attachment to that discredited system known as
"limited government." Limited government never remains limited. It always
becomes unlimited.
As long as a government, any government, wields a legal monopoly in
the use of brute force within a given territorial jurisdiction, that
government's powers can never really be separate.
It is high time aspiring nation builders began drafting
constitutions predicated on a system that truly separates the powers - free
market anarchism.
March 2, 2007
Bevin Chu [send him mail] is an American architect of Chinese
descent registered to practice in Texas. Currently living and working in
Taiwan, Chu is the son of a retired high-ranking diplomat with the ROC (Taiwan)
government. His column, "The Strait Scoop" is published on his website, The
China Desk.
Copyright © 2007 Bevin Chu
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