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Samizdata quote of the day

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.

- James Madison, Federalist Paper No. 47

16 comments to Samizdata quote of the day

  • Midwesterner

    This is our president’s solution to separation of powers. He issues ‘signing statements’ announcing that he will not enforce parts of the law as he sees fit and that he will ignore rulings by the judicial branch. Here is a sample

    The Executive Branch shall construe [the torture ban] in a manner consistent with the constitutional authority of the President to supervise the unitary Executive Branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.

    The executive (President) controls the means of enforcement the law, has granted himself unappealable right to interpret the constitution, has granted himself the right to ignore laws and do as he sees fit, and he is declaring in advance that he won’t obey they judicial branch.

    It’s a good thing the UK is able to maintain separation of powers. That will save your necks if you ever get an executive branch with aspirations to fiat.

  • It’s a good thing the UK is able to maintain separation of powers.

    I assume you are joking…

  • Midwesterner

    Er… tongue planted firmly in cheek.

    Although, like most American’s it seems to me that your executive and legislative are already one in the same. So all you have left is an independant judiciary. Or is it?

  • That is pretty much correct, Midwesterner. Judiciary is still pretty much independent.

  • RAB

    Independent and stroppy!
    Which is why the executive is trying to muzzle them.
    Given the looseness that our legislators form their Acts of Brussels, you cant blame our judges for driving a coach and horses through them !

  • Pa Annoyed

    That makes no sense. How do you define “the same hands” when they may potentially be those of “many”? Whoever you give those roles to, if you class them all as a group in some sense, they are in that sense “the same hands”.

    The conventional definition defines tyranny in terms of cruel, oppressive and arbitrary government – irrespective of who wields it. If you’re going to come up with an anarchist slogan, then “Government is the very definition of tyranny” is much snappier.

    And what about the fourth estate?

  • How do you define “the same hands” when they may potentially be those of “many”?

    That is an easy one. I would refer you to the Ninth Amendment of the US Constitution:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

    To avoid tyranny you need rights, which is to say power over your own life, which do not depend on the largess and forbearances of the ‘many’ in any part of government whatsoever.

  • Pa Annoyed

    Ummm… so how does that define “the same hands”?

    Or did the people who created the constitution not have hands? How did they write it, then?

  • The government is “the same hands”… people not in the government with ‘rights retained’, that is different hands. Not hard to understand really.

  • Pa Annoyed

    Ah, I should have gone and read Madison’s words in context, shouldn’t I?

    It appears to be a pithy presentation of the position against which he is about to argue. He finds that “notwithstanding the emphatical and, in some instances, the unqualified terms in which this axiom has been laid down,” that it isn’t and was never intended to be interpreted so literally. Montesquieu and the individual state governments speak of individuals and departments, and are based on examples without the complete separation of powers that too literal a reading would seem to imply.

    So “same hands” means either an individual or a department of government coming under a single organising authority. That’s fair enough, although I think it’s still a bit of an exageration to call it “the definition of tyranny”, or to say “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.” Politicians and their speeches, eh?

  • although I think it’s still a bit of an exageration to call it “the definition of tyranny”

    Probably true, but that was the quote :-)

  • RAB

    Er, is this the same Madison
    They named Madison Avenue after?
    That free trade Libertarian highway!!?
    Cool.

  • Midwesterner

    Pa Annoyed,

    This is one of, (if not the) most important impending disasters facing us now. You read No. 47 lightly and seem confused. You don’t seem to be reading it completely. You conclude -

    It appears to be a pithy presentation of the position against which he is about to argue.

    Yet in Madison’s very next sentence to the one quoted, he says -

    Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.

    So since you cared enough to comment, let’s look at it closer. What is tyranny? The first dictionary I reached for says this -

    tyr·an·ny Pronunciation ( . . . )

    n. pl. tyr·an·nies

    1. A government in which a single ruler is vested with absolute power.

    2. The office, authority, or jurisdiction of an absolute ruler.

    3. Absolute power, especially when exercised unjustly or cruelly: …

    . . .

    Madison’s statement is certainly and precisely true with definitions one and two, and correct with definition three since the outcome (believed by the founding generations and by most of us libertarian types now, to be inevitable) is qualified as ‘especially’. He was in no way denying the truth of the statement. Madison was confirming it and set out demonstrate that power was not “in the same hands” in this new constitution.

    While he is particularly attacking an excess of power in the legislative branch, he makes two key over arching statements in No 47.

    One – separation of powers is essential to avoiding tyranny and not separating them sufficiently should “inspire a universal reprobation” .

    Two – Interpreting Montesquieu (and hense, our constitution) “he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other.”
    _____

    This esoteric debate is critically important to readers on this site who espouse liberty and individual rights.
    To American readers, if it’s not on your radar, school up and learn about it now.

    There is a movement against the constitution that has garnered four seats on the Supreme Court and is one vote away from changing our nation through a reinterpretation of the constitution. It is called “Unitary Executive Theory“. It is inexplicably supported by justices claiming ‘conservatism’. There is nothing conservative about this rewrite of our constitution.

    This president or the next one will probably appoint a fifth justice who accepts this theory (why would they turn down unlimited power?) When this happens, it will bring about a reallignment of power greater than any since Lincoln turned us from a federation into a nation.

    So, what’s the big deal? In Madison’s Federalist Paper No.47 he makes clear two fundamental points about this new constitution he is defending. One is that it does not let different powers be combined in one branch. And two, that there is overlap of powers between the branches.

    Both of these points are defeated by Unitary Executive Theory. If has two fundamental premises.

    “Proponents of the theory argue that the President possesses all of the executive power and can therefore control subordinate officers and agencies of the executive branch”

    (emphasis mine)
    and

    “that no part of the executive branch can sue another part because “the executive cannot sue himself.”

    This is based on the flawed idea that allowing executive agencies to sue each other when faced with contradictory legal mandates would grant the judicial branch de facto executive power. But the real consequence of this theory is to deny the legislative branch the power and necessity of having its laws enforced. (Or even being enforceable) For if there may be conflict between two or more laws, or constitutional questions, it is not for the executive to choose which laws he prefers, it is for the judicial to discover, announce and resolve the contradiction. Then the legislative should readdress its errors.

    With signing statements like this one -

    The Executive Branch shall construe [the torture ban] in a manner consistent with the constitutional authority of the President to supervise the unitary Executive Branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.

    the president is stating that he will enforce laws not as they were written and signed into law, but by selectively choosing to deny recognition of parts that he unilaterally, denying judicial jurisdiction, decides may “interfere with the President’s constitutional authorities to conduct the Nation’s foreign affairs, participate in international negotiations, and supervise the unitary executive branch.”

    This collection of authorities in to the executive branch does not only contradict Madison’s assumptions in No. 47. Alexander Hamilton, describing the new consititution in Federalist Paper No. 73, said clearly, in unarguable terms -

    “Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other. A man who might be afraid to defeat a law by his single VETO, might not scruple to return it for reconsideration; subject to being finally rejected only in the event of more than one third of each house concurring in the sufficiency of his objections.”

    While Madison and Hamilton were justly concerned about an out of control legislature, they believed that the structure that the had built would be adequate to restrain an executive with aspirations to sole power. Due to the extremely strong anti-executive (in the form of the king) emotions in place in the new republic, they did not need to point out the dangers of an over powerful executive.

    Times have changed. We now have a legislature that has forfeited all of its responsibilities to the electors and the executive. They run their campaigns and produce legislation with mandates from opinion polls. They bundle all of the decisions they should be making into large, undefeatable omnibus legislation and let the executive sort the good from the bad. They have abdicated their fiscal and law writing responsibilities and have given the executive free reign except when political points can be scored with toothless and histrionic criticism.

    With his judicial appointments and his signing statements, this president has taken full advantage of the responsibility vacuum. By denying the legislature a chance to override his veto, the president has usurped virtually the full legislative power. For even if 100% of the two houses of legislature support a portion of a law, by his single statement, he refuses to execute it. This is a clear violation of the Constitution’s instruction that the President “shall take care that the laws be faithfully executed…”

    Furthermore, he is claiming the power to do things that cannot be challanged before the courts. By doing this, he is in actuality executing laws of his own writing.

    We have a president who enforces only what he pleases of the laws of the constitutionally designated law writing branch and he refuses accountability to either of the other branches of government when the law so directs or when he pleases to exercise a power he has not been granted. He is both writing and unwriting the laws of the land and placing the legal opinions of the executive and his advisors above those of the Supreme Court.

    This President has fully usurped the legislative power and the judicial power by denying either branch its constitutional powers at the executive’s determination.

    The judicial bodies are being corrupted and the legislative body shows not the slightest intent of ever taking responsibility for its choices and the consequences of them.

    If you don’t see the potential for this in the hands of this or any other president, you don’t recognize human nature.

    This matters.

  • Pa Annoyed

    Thanks. That was interesting.

    When I described it as the position against which he was about to argue, I meant it in the same sense as I was arguing with it; if you don’t define exactly how small a group counts as “the same hands” the maxim is both meaningless and impractical. You can define it as wide as the creators of the constitution, or the whole government, or even the people – the “tyranny of the majority” as they call it, (which is correct usage according to my Oxford English dictionary, if not yours). I had read the slogan and not followed the link. Having read Madison’s words, I see that he defined it at a particular level, arguing that its apparent abuse when considered at a slightly wider level was not the true intention of the principle.
    You have to say how big a group has to be for you to trust it – bigger than an individual, or a department that might be controlled by an individual – smaller than a government.

    I’m not going to try to argue with your discussion on the unitary executive because I don’t know enough US constitutional theory, although I confess it looks iffy to me. Only an idiot would grant total power to the office of President knowing full well that their term ended in a couple of years and even if they did win the next one, that’s no guarantee for future elections. Every politician must be constantly aware that anything they can do, their enemies can potentially do it better. The first thing a would-be dictator must do is ensure they are still around to enjoy the benefits of their dictatorship. Frankly, if I was Bush I’d be poisoning the well of absolute power as fast as I could.

    The idea that these guys are just stupid is not without its appeal, but I am automatically suspicious of the ‘Bush is an idiot’ cant, or anything that sounds like it.

    However, I will refrain from further judgement due to lack of relevant knowledge.

  • Midwesterner

    In the new constitution, each branch of government was brought to office by an entirely different (demographic) group. Representatives were democratically elected by district. Senators were selected by the legislatures of the states. Presidents and Vice Presidents by the Electoral College which is totally assigned to the simple majority in each individual state. And the judicial, which is appointed by the executive with the approval of the federal Senate (which, remember, was originally appointed by the state legislatures).

    With the understanding that it would be difficult for a faction to gain control of two, much less all three branches, I think ‘the same hands’ was used with a strong symmetry to ‘faction’. In No. 10, Madison gives the following definition of ‘faction’ that may give some understanding to his use of his term “the same hands”.

    By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

    I believe the concern was that multiple branches of government could fall under the control of a single faction.

  • Midwesterner

    Pa, you got a way with words. With this statement, I think you summed up the entire spirit of the Founding Fathers.

    Frankly, if I was Bush I’d be poisoning the well of absolute power as fast as I could.