Separation of Powers
Updated: May 22
By Joshua Noyer
The Federalist Papers were a collection of letters written by Alexander Hamilton, James Madison, and John Jay for the express purpose of influencing public opinion towards approval of the Constitution. The contradiction the writers had to face was to how to make a unified country, which a strong government is a prerequisite, while at the same time preserving a view of freedom, where the citizen is a self-sufficient individual with little to no need of government. The solution (borrowed from the writings of Montesquieu) employed the separation of powers doctrine, that the most effective barrier to tyranny is to keep government divided. Hence there emerged the three separate branches of government: The Legislative, Executive, and the Judicial, all containing separate and defined powers. Pre-Revolutionary War propaganda had asserted that King George III was a tyrant. So much of the subsequent political theses composed after the War emphasized the importance of preventing a return to tyranny through the prevention of a strong executive. The next two hundred-plus years have been colored by power struggles between the different branches, with each warning of the tyranny to come if the separation of powers were violated; all the while a new power has arisen the original idea did not incorporate.
The founders were products of an 18th century agricultural society. The technological and social changes that have accompanied global society since the end of the second World War could not have been conceivable to them. Much as the structure of the French State prior to its revolution was created before the emergence of the Third Estate (peasants and bourgeoisie) and was incapable of surviving in its form with their inclusion. So, the theoretical model we reference as the Separation of Powers was built upon an idea of tyranny based upon 18th Century political thought. The idea of freedom or its lack thereof to Enlightenment thinkers was based solely upon government and its role. Viewing the individual and the State as two separate entities; the actions of either were viewed as taking place within a zero-sum structure with the withdrawal of the State leading to more human freedom, while its expansion could only come at the expense of that freedom. Although a certain logic abounds here, much like the State of Nature philosophers based their theories on a scientific view of the universe, which viewed its parts as existing separately from each other; to give them the benefit of the doubt we are all products of our time. The ideas we develop and the theories we construct are based upon what we know. To theorize regarding bare possibilities is to delve into the realm of fiction. However, the same benefit cannot be applied to contemporary theoreticians who insist on deifying certain concepts which no longer have relevancy. To advocate a concept despite its lack of relevancy is deify that concept, to attempt to make the abstract real.
While America’s politicians still insist on “tilting at windmills” and fitting square pegs into round holes by engaging in polemics surrounding the dangers of a lack of checks and balances, a new power establishment has arisen, which knows no values and exists without a check to its power, Corporate America. While we’ve always had a wealthy elite in this country able to manipulate the levers of power behind closed doors, that elite was primarily composed of individuals who made their wealth either through the land or industry, but unlike contemporary businessmen that industry operated primarily on a national level and existed within a relationship where industry was reliant upon a domestic market. However, that relationship changed after WWII as national companies became international in scope and subsequently the domestic market lost its relevancy. There were no more ties between the corporation and the land which first produced it. Instead of existing within a relationship of mutual duties, a faceless network of stockholders and CEO’s became the new norm. The lack of any personal relationship between this network and the consumers it provided products for produced one sole rational for the existence of the corporation, and that was increased profits.
While not specifically defined as political units, modern businesses have probably a greater effect upon the daily welfare of individuals than the three branches of government. If it’s not through our places of employment, where many of us spend more waking hours than with our family, then it’s through the television, viewing social media through our phones, or listening to the radio while in the car. Our lives have become defined by our interactions, not with each other but through a faceless business establishment wanting to increase profits and market share through selling their product to the populace. Unlike how most free marketers describe it, these are not solely economic transactions engaged by consenting individuals in the marketplace, an idea suited for an 18th century agricultural economy, but unreflective of contemporary society.
The idea behind modern mass market advertising is to saturate the market with advertising, to literally change how we conceive the world to be more amenable to purchasing said company’s products. Fox News and MSNBC, just to take two examples from the media, are only secondarily media organizations. Their primary function is to make money for the corporations who own the stations, General Electric in case of the former and Viacom in case of the latter. They do this by targeting a demographic large enough to sustain the structure of the business and aim to keep this demographic engaged by instilling a constant state of anxiety and anger through demonization of the other side. Emotions work to stimulate individuals to action; while calm and repose have the exact opposite effect. The political spectrum that exists within each of us is an illustration of how the diversity of individual thought is destroyed as individuals are pressured into choosing sides in a pseudo moral war brought about by capitalism. banks and credit card companies suckering people into cheap credit and a life of debt, or movies appealing to humanity’s lowest common denominator for the sake of ratings. As the public becomes increasingly corrupt through being saturated by market values, more and more attention is given to the government as the source of that corruption. The one institution capable of restraining the private sector is continuously having its authority to do so delegitimized.
All of this begs a question. Assuming power becomes centralized in the State and the private sector becomes subordinate, what’s to prevent the State from using its power for nefarious purposes? At least our present structure, while being far from perfect, provides a distribution of power across several power blocs. All of this is true, but the argument for a structure built upon a private plutocracy as the lesser two evils assumes the alternative, a strong monolithic State n, encompassing not much more than a chief executive and functionaries. And while historical examples abound with illustrations of this idea, the reality of what we’re proposing in no way resembles those illustrations.
“Everything Within the State, Nothing Outside of the State” is not mere rhetoric, but an actual blueprint, an ideal designed to add the proverbial “flesh and bones” to an intellectual concept. Settling for the lesser of two evils is not a conscious choice. It is an irrational resignation to the contemporary way of doing things. It’s a way of looking at the world produced by fear, an embrace of inertia. Looking at the world through the lens of action and movement creates within us a reality of constant change, a way of viewing the world as a harmonious whole with each of its component parts having a place and a function. The structure that is produced by this reality will be effective to the extent which it is reflective of said reality. The problem is we often look at collective groups like the State as having a mentality which differs significantly from our own, hence, the idea that government should be run like a business, that foreign policy should discard all considerations of morality in pursuit of power in a zero- sum game. The results of this type of mindset are disastrous: wars, theft, secrecy and spying. When not getting in the way of business relationships, these have come to define relations between nations. Yet, collective reactions manifest within populations, which have a significant similarity to reactions you see amongst individuals. Countries that are slighted or insulted display a show of honor just like individuals put into similar situations. The sight of countrymen homeless or sick produces a desire to address the problems through collective actions. Individuals seeing the same issues attempt to make an impact through individual acts of good. Through our participation in collective groups we begin to understand the workings and mindsets of groups and how they differ and how they resemble the individual mind. When we’re talking about the State, we’re talking about a collective which encompasses everything. And as part of the State we can to a degree understand its mindset, because we are part of it, and it is part of us.
The dangers of the traditional western concept of government here manifest themselves. We can see the dangers of socially deviant individuals within our own lives, how these individuals commit acts of violence, fraud, and extortion because they consider themselves as being separate from the community. Being separate from the rest serves as a rationale, a justification for pursuing one’s own interests at the expense of others. To commit a wrong against someone or something which has not integral value is not to commit a wrong. Morality and ethics can only exist within a social structure where individuals have meaningful relationships with others, not to simply coexist and live within a common political unit where law is looked upon simply as being a manifestation of force. Likewise, we can see why a business would have no qualms about leaving its country of origin to exploit cheap labor for the sake of profit. Lacking a relationship with its workers and any ties to its community other than that of a contractual nature, there is no longer a moral issue with predatory actions which hurt others for the sake of profit. In a similar vein the implementation of tyranny and its consequent taking of lives and freedoms can be comprehended through this same structure. A society composed of a conglomerate of individuals and institutions which have their relationships defined by the market is a society with a false morality and false ethics. Beneath, acts of good will exist nothing more than attempts at self-promotion. Results from this structure - a separation of powers, with the goal of breaking up the State and society - are not likely to restrain abuses of power but to encourage them through the redefinition of human relationships.
The inclusion of everyone within the State would not take on the perception that many have in their minds of us all becoming civil servants, but of replacing the current system with its fragmented morality and rationale with one that makes someone much more than an employee of government doing nothing more than earning a check and someone conscious of every action contributing to a higher goal. Think of it this way. The foundation of all collective groups and the one we first encounter is the family. Being part of a family produces a feeling of transcendence; of being part of something much more than the sum of its parts. We defend our families against dangers, dishonors, and slights, even when it may go against our immediate interests. This feeling of belonging then transfers to other social groups as we age and become independent of our own family. This is where the importance of structuring society to conform to a family like unit comes into play, not in the sense of having a mother, father, and siblings in every social group, but of reproducing the transcendence derived from the family relationship into these other groups. The logical argument against this would be that even within the family we encounter situations of abuses of powers, so wouldn’t a society structured along familial lines be prone to the same abuses, and how would a State without a separation of power prevent abuses of power? The idea that institutions must be perfectly virtuous to be free of hypocrisy is ludicrous. Yes, those calling themselves "the State" throughout its history have been guilty of innumerable crimes. Let us direct our attention explicitly to the word "State", as it is the object of attack.
Be reminded there is "the State" and "the State". Confused? Part of the problem It that is the word has been used for millennia, notably starting with Plato in The Republic and Aristotle in his book Politics. Others in the 18th and 19th centuries – Rousseau, Bluntschli, and Spencer – had their versions. "State" in more modern political philosophy has become much more of a refined idea, arguably the most comprehensive philosophical foundation laid by Hegel in Part III of his Philosophy of Right and for the "nuts and bolts" by Durkheim's The Division of Labor in Society. As with the word "fascism" used erroneously by those referring to National Socialism, "State", to be perfectly correct, refers to that refinement. Hegel said that in the State, the people are at harmony with themselves. The nobility that make society and its organization the State is religion, seeking that which coheres, or binds, i.e., the truth.
Up to this point in the current article, "State" more accurately can be termed "proto-State", a government that has assumed more power and responsibility over more aspects of society, with the populace – while not fully unified and identified with the authority – still having strong allegiance to it. It may be argued that the State Hegel and Durkheim were describing never has existed, although the protoState of Fascist Italy was well along the way to becoming a State. So, too, the U.S. government under Roosevelt was progressing along a similar path. Yet, none of these proto-States has satisfied the criteria Hegel set forth, again, social organicity, the search for truth, and the nature of how the individuals and society identify themselves in terms of the other.
The abuses heaped by critics on "the State", then more accurately bring into view governments and the lesser-developed proto-States. More accurately, "government" usually is conflated with "proto-State" and even "State", although discerning where one ends and the next begins can be very difficult. Governments often have been disunified, corrupt, and failing their citizens but usually to a lesser extent proto-States. Because of their synonymously using "government", "protoState", and State", we now can understand more why critics in their anti-State attacks equate "government" (especially "big government") with "State" or proto-State. In order of desirability and capability of meeting Hegel's criteria for an ideal society, we have the lowest – governments, followed by the proto-State, and finally the State.
It is difficult, if not impossible, to imagine a happy, unified society as the State having criminality within, save as an organism beset by disease. The State has a greater capacity to treat that disease, as opposed to a group of persons calling themselves a society or government and having no direction. Because to this date we cannot point to any Hegelian State in history, we only can review proto-States. The less developed a society is in terms of coherence, ethics, purpose, and the rest of what Hegel and Durkheim were setting forth, the greater level of discord, crime, violence, corruption, and overall misery.
So, let's put the crimes of these governments and proto-States into historical perspective. How many children have been victims of murder and abuse by their parents throughout history? How many crimes has the Church committed during its 2000-year history? Remember, the people were not integrated into the monarchies but only objects of it. Neither were the people the serfs, merchants, and royalty, nor the clergy the former. A quick look at the Inquisition will confirm that.
Being prone to violence and abuse is part of human nature; but so is its opposite; the ability to overcome, to sacrifice, but the greater development of the proto-State towards the State, the less violence will there tend to be. In passing, remember that in Nazi Germany, the people, rather than being integrated into the State, were mere objects of a band of thugs calling themselves "the State". One only need research and discover that a sense of integration and well-being lessen the tendencies to discord. In the Nazi case, one cannot logically argue that the Gestapo represented the people being integrated into anything resembling a State. The same applies to Stalin.
As individuals, we are guilty of moral crimes at times. We are also able to overcome our darker sides at times. When judging institutions, taking a cookie cutter approach would be intellectually dishonest, even more reason to examine these governments and proto-States on a case-by-case basis, asking, again, questions about how well they are integrated and how close they come to Hegel and Durkheim. To get a good apprehension of the nature of the State we must consider what a State really is, its approximations – the proto-States, governments, and the history of each, the good and the bad, along with the purposes and structures of these social organizational types manifest over time. Once we do that the erroneous idea that the State is inherently dangerous or prone to abuses comes to naught as these same defects can be seen in all of us.