If we’re to have a formal government, the concept of the separation of powers is not all that bad. Most accept that James Madison and his associates at the constitutional convention meant to place some check to each branch’s authority, otherwise one would over power the others in short order. Indeed, not separating the powers, such that the same institutions or people control the legislature, executive, and judicial functions of government is asking for arbitrary rule, or in other words, tyranny.

It’s for this very reason that the present system is unfit. It looks great at first, on paper. One branch writes the laws, an entirely different branch is supposed to carry them out, and still a third group is to act as judges. But closer examination reveals something that should raise one’s suspicions about the effectiveness of separation.

First, the idea that an executive officer chooses who is to be on the court is strange, if that court is really to be unbiased and “blind.” Ah, but the president only gets to have his choice if the senate agrees, comes the reply, and since the people elect the senate, then it’s like the people are electing the judges. Except they aren’t. The conventioneers in Philadelphia were pretty clear how they felt about pure democracies, and many wrote of the troubles accompanying such a system. Otherwise, it would make sense for the people to elect the judges to the Supreme Court directly.

Second, while the constitution makes clear how the powers are to be divided, which function will be given to what body, it doesn’t really place any limits on who will actually fill the roles. Because of this, individuals move from one branch of government to another, as the historical record shows. The result, as might be expected, is that the lines between the branches are blurred and arbitrary rule becomes the norm.

Let’s begin with a few notable observations. More than half of all U.S. presidents have been legislators at the federal level; half of these executives spent at least one term in both houses of congress. As for the Vice Presidents, more than seventy percent were members of congress before taking office. Some of these were single terms, not long enough to really become entrenched and part of the system. But a number of them held senior leadership in their respective houses. Three (Polk, Colfax, and Garner) were speakers of the house; another three spent time as President Pro Tempore of the Senate, and a few were Majority/Minority Leaders of the House or Senate, or Chaired committees. In several cases the president never spent time in the federal congress, but was a member of a state legislature, as in the cases of Theodore Roosevelt and Jimmy Carter.

There are many other instances of this round-robin among branches. Take for example Justice Elena Kagan, who was President Obama’s Solicitor General before her appointment to the high court. She also was an attorney for President Clinton for most of his second term.

Four other members of the current court have held positions as attorneys for the government. Under President Reagan, Chief Justice John Roberts was a Special Assistant to the Attorney General and later an Associate Counsel to Reagan. Clarence Thomas was an Assistant Attorney General in Missouri and later spent time on the staff of a U.S. Senator from Missouri. Samuel Alito has been the Deputy Assistant Attorney General, Assistant to the Solicitor General, and an Assistant U.S. Attorney. Sonia Sotomayor got her law career started as an Assistant District Attorney.

Rest assured these are not the only instances of inter-governmental musical chairs from within the court. Former Chief Justice John Paul Stevens worked as an Associate Counsel to the Judiciary Committee of the U.S. House. Recently retired Justice David Souter was the Attorney General from the state of New Hampshire. William Rehnquist was an Assistant Attorney General in the Nixon Administration. Chief Justice Earl Warren was both the Attorney General and Governor of California. Charles Evans Hughes was Governor of New York. Harlan F. Stone was an Attorney General under FDR. The list goes on.

Then there is the case of William Howard Taft, a creature all his own. His first position as a senior government official came when he was appointed as the Solicitor General for Benjamin Harrison’s administration. Next he filled the bench of the newly established Sixth Circuit Court of Appeals. He later became President of the United States, and was eventually appointed to the Supreme Court where he spent nine years as the chief justice.

What all of this means is that powers cannot be adequately separated when the same people are filling the roles of the various branches of government. Should anyone be surprised that the Supreme Court has more or less been subservient to the Executive when so many members are and have been members of the executive branch? Should we really expect for the legislature to be independent and jealous of the powers of the president, if so many of the senior executive branch officials were members themselves, or even senior leaders of the congress?

I think the questions answer themselves. It’s not as if the executive branch is filled with new blood every few years, where presidents and their cabinet officials have to learn the system and persuade the legislature to go their way on some things. Just like the courts in this country aren’t presided over by defense attorneys and public defenders. In both cases the politically well-connected are the ones who overwhelmingly find themselves in places of power.

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This is one reason, among many, that relying on members of the federal government to limit their own power is a losing proposition. Voting them out and refusing to continue the cycle is also a rather ineffective tool, given how high the turnover rate is already. There’ve been almost two thousand senators and close to 11,000 representatives in the last two hundred and twenty some-odd years. Not much has changed – for the better – but a lot has gotten worse.

This is why nullification at the state level is so important. It’s certainly not a silver bullet, but the states can act as an important check on federal tyranny. The danger is, of course, that state governments will not be so cooperative or careful to defend the rights of residents. This is why nullification at the county and municipal levels is just as important and should not be scoffed at or ignored. Finally, peaceful resistance and non-violent civil disobedience, essentially nullification at the individual level, is one of the most powerful of all tools for liberty. We should use all of them.

Joel Poindexter
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