Abuse of Power

Outline

  1. Abusing Power
  2. Framers’ Safeguards
    1. Separation of Powers
    2. Checks and Balances
  3. The Problem with the Framers’ Safeguards: Political Parties

Abusing Power

  • Politicians and political parties seek power, which they get by winning elections.  Once they gain power they want to keep it.  The risk for democracy is that they’ll abuse their power to keep themselves in office. 
  • There are many things antidemocratic politicians and parties can do.

Framers’ Safeguards

Separation of Powers

  • In the The Spirit of Laws (1758), Montesquieu proposed distributing the power of government into three separate and independent branches: the Executive, the Legislature, and the Judiciary. It would be the “end of liberty,” he warns, if the same person controlled all three branches:
    • “There would be an end of everything, were the same man, or the same body whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.”  (Chapter 6)
  • Thus the different branches of government must be run by different people.
  • In Federalist No 51 Madison notes that the US not only has separate branches of government but also separate governments — federal government and the states.
    • “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
  • By contrast, parliamentary systems have no division of power between the executive and the legislature, since parliament elects the prime minister.

Checks and Balances

  • In both the US and UK the powers of the judiciary and legislature are separate. But there’s a key difference. The US Supreme Court has the power to render laws enacted by the legislature null and void. The UK Supreme Court has no such power (Wikipedia).
  • In Israel there’s currently a move to strip its Supreme Court’s power to nullify laws.
  • Thus branches of government need not only to be separate, but also to have the power to limit the power of the other branches.  As Montesquieu succinctly put it in Chapter 5 of The Spirit of Laws.
    • “To prevent the abuse of power, it is necessary that by the very disposition of things power should be a check to power.”
  • John Adams talked about balancing the powers.
    • “It is by balancing each of these powers against the other two, that the efforts in human nature toward tyranny can alone be checked and restrained, and any degree of freedom preserved in the constitution.” (Letter to Richard Henry Lee)
  • Examples of checks in US:
    • Checks on Congress
      • The Supreme Court can render legislation null and void, per Madison v Marbury.
      • The President can veto legislation
      • The House and Senate must be in agreement to pass legislation.
    • Checks on the Executive
      • Congress can override a presidential veto, by a vote of a supermajority
      • Executive appointments require the consent of Senate
    • Checks on the Judiciary
      • Members of the Judicial Branch are appointed by the President and confirmed by the Senate.
      • Congress establishes the organization of the federal judicial system and the size of the Supreme Court.
      • Congress initiates amendments, perhaps reversing decisions of the Supreme Court
    • Checks on the both the Judiciary and Executive
      • Congress has the power of oversight and investigation
      • Congress can impeach members of the executive and judicial branches, by a vote of a supermajority

The Problem with the Framers’ Safeguards: Political Parties

  • The Framers divided the federal government into separate branches to make it difficult for a tyrant to concentrate power. 
  • In Federalist 47 James Madison wrote:
    • “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.”
  • The Achilles’ heel of the separation of powers is the reality of political parties.  A political party that holds the presidency, the Senate, and the House and who’s appointed like-minded judges is thus, per Madison, a threat to democracy.
  • Indeed, the Framers viewed “factions” as a danger to democracy.
    • Alexander Hamilton regarded parties as “the most fatal disease”. 
    • John Adams feared that “a division of the republic into two great parties… is to be dreaded as the great political evil.” 
    • In his Farewell Address Washington warned that the fighting between political parties “gradually incline[s] the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.”
  • A political party can not only bypass the separation of powers but can also render checks and balances irrelevant.  For a party in control of the executive and both chambers of congress, for example, these checks are meaningless:
    • The President can veto legislation
    • Congress can override a presidential veto, by a vote of a supermajority
    • Executive appointments require the consent of Senate
    • Members of the Judicial Branch are appointed by the President and confirmed by the Senate.
  • One of the primary checks on a tyrannical political party is ironically opposing political parties.