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Constitutional Rubbish

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Americans need a civics lesson. And so do politicians. Of all the wrong and delusional thinking about the US Constitution the one that is most thoroughly incorrect and routinely used for political propaganda purposes is that there are three coequal branches of the federal government.

You hear presidents, members of Congress and media pundits say it all the time. They are wrong. Nowhere in the Constitution or the Federalist Papers is there any statement or declaration that the three branches are coequal. Why has this myth persisted for so long? Why do so many prominent and supposedly educated people keep invoking this outright lie?

Make no mistake. Neither in theory or practice is there any basis whatsoever for believing that the legislative, executive and judicial branches of the federal government are coequal. It also defies common sense.

Historical analysis has always shown that the Founders, if anything, intended for Congress to be preeminent, and not the President and the executive branch. For example, only Congress has the constitutional power to remove the President and other high officers of the executive branch as well as the judiciary, but the latter cannot remove any member of Congress. And Congress has control of raising and spending government funds as well as the power to overrule any presidential attempt to veto legislation. That Congress does not always choose to fully exercise its constitutional powers does not remove them.

As to the Supreme Court and the whole judiciary, they function only as long as Congress provides funds, the executive branch provides security, and both choose to obey court decisions. More importantly, the Supreme Court does not act on its own to enforce the Constitution, even when the President and Congress disobey it, but it could.

It is time for Americans to stop and think. In what exact ways are the three branches coequal? According to the dictionary coequal means resembling each other in all respects. But ridding the culture of constitutional myths seems awfully difficult, especially since Garry Wills published his excellent book “A Necessary Evil” a decade ago, which artfully exposed a number of them.

In particular, presidents seem to like talking about the coequal branches of government, including Barack Obama. In January 2008 Obama said this in a speech: “No law can give Congress a backbone if it refuses to stand up as the co-equal branch the Constitution made it.” Do presidents really want coequal branches? I think not. But they want Americans to keep believing in coequality, because it sounds good and adds an aura of respect for government that politicians desperately want.

In reality, presidents with the most political power want others with far less power to feel good. They want to keep the public believing (incorrectly) that the president is very limited in power. If George W. Bush proved anything it was not just that he created the imperial presidency, but that over time the presidency has become a mostly unchecked, pre-eminent and over-powerful government force. They have accumulated far more powers than ever envisioned by the Constitution. By regularly invoking the false coequality of branches argument and its derivative checks and balances thesis, presidents intentionally spread the propaganda to safeguard an all-powerful presidency and executive branch.

Meanwhile, Americans are largely ignorant that Congress has refused to honor and obey an important constitutional option in Article V: a convention of state delegates that could propose constitutional amendments, despite over 750 applications from all 50 states for a convention. It is their way of preserving their power and presidents say nothing because they too fear such a convention.

Understand this: Having distinct constitutional responsibilities does not make branches coequal. The myth of coequality protects our delusional democracy and makes a mockery of our constitutional republic. If people really want coequal branches then they should start thinking about a constitutional amendment to make it so. Alternatively, we need Congress and the judiciary to act with far greater strength and conviction to use their constitutional powers and more effectively constrain presidential powers.

If prominent people tell a lie enough times, again, and again, and again, then the public lie becomes accepted fact, a cultural myth. So it is with the three coequal branches of government lie. It will be defended. It serves a purpose: False confidence in constitutional government.

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About Joel S. Hirschhorn

Formerly full professor Univ. of Wisconsin, Madison, and senior official Congressional Office of Technology Assessment and National Governors Association. Author of four nonfiction books and hundreds of articles.
  • http://www.republicofdave.com Dave Nalle

    Joel:

    There’s constitutional rubbish here, but you’re the one spouting it. The idea of divided powers and divisions of government in equilibrium was clearly expressed by the Founding Fathers.

    Read Federalist #51. Madison is absolutely unambiguous on this issue:
    “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.”
    Similarly, Adams wrote to Richard Henry Lee, well before the framing of the Constitution, this entirely unambiguous description of the concept of divided powers:
    “A legislative, an executive and a judicial power comprehend the whole of what is meant and understood by government. It is by balancing each of these powers against the other two, that the efforts of human nature towards tyrrany can alone be checked and restrained, and any degree of freedom preserved in the constitution.”

    I’m afraid you’re as wrong about this as you are about the desirability of an Article V convention.

    Dave

  • http://whalertly.blogspot.com Robert M. Barga

    wait, you want us to just open the doors and let state legislatures dictate a BRAND NEW constitution
    dude, you know how bad that would be

  • http://drdreadful.blogspot.com Dr Dreadful

    The enjoyable thing with Joel’s articles, no matter what the subject matter, is in making private bets with oneself as to how many paragraphs it will take before he advocates an Article V convention.

  • Doug Hunter

    The answer to the meaning of the Joel’s life is ‘Article V convention’, he now only has to find the question.

  • Baronius

    My problem with the article is that I don’t think anyone interprets “co-equal” in the way Joel describes. Resembling each other in all respects? That would only be true if the House and Senate consisted of 9 presidents who served for life, wrote budgets, approved treaties, et cetera.

    Each of the three branches of government has to defend its own turf, as does the military, and the state and local governments. The balance of power is in a bad way these days. Congress has essentially given up control of the budget to the executive branch, and neither the President nor Congress care about the wording of the laws they write and enact, because they know the courts are going to disregard those laws. There’s some validity to Joel’s analysis. Even so, I think the Founders would be more surprised by how many things government does than by how lousily it allocates those actions.

  • Bliffle

    Interesting and provocative article. I’ve got to consider it some more.

    Offhand, it seems to be possible to separate powers and have checks and balances without necessarily being co-equal.

  • http://ruvysroost.blogspot.com Ruvy

    I think the name that everyone seems to be forgetting here is that of Montesquieu, who wrote of a governmental model for France where the king, parliament and courts would have equal power.

    Political scientist after political scientist, like so many sheep, all baahed that the constitution of 1787 was modeled after Montesquieu’s ideas, adapted for a republic – so the idea of three equal branches of government were born.

    If you look at Dave’s quotes from the Federalist and elsewhere, they mention separation of powers and divided government, and checks and balances, but not equal powers.

    Personally, I think that the farther sighted of the “founding fathers” realized that having a single individual as an executive would, over time, lead to concentration of power in that office.

    These reasonably learned men did have the model of Sparta to copy from, one which provided for a plural executive. A plural executive would have truly prevented a president from gaining too much power. The Swiss did adopt that model and their government has divided powers, checks and balances and an executive that cannot overwhelm the other two branches of government.

    The Americans did not – and each year the imbalance of power grows.

  • Bliffle

    “Montesquieu” or Montaigne?

    Montaigne wrote essays on government and was mayor of Bordeaux. Montesquieu is the maker of Armagnac and a scapegrace, notorious for stealing precious art.

  • Ruvy

    “Montesquieu” or Montaigne?

    I bow to your knowledge, Professor. I’m busy editing today and do not have time tr research a correct answer.

    Shabbat Shalom,
    Ruvy

  • http://www.republicofdave.com Dave Nalle

    If you’re talking about Charles de Secondat, Baron de Montesguieu, he was a social critic, socioclimatologist and one of the founding thinkers of liberalism. He wrote The Spirit of the Law which is one of the basic documents on the idea of constitutionalism and the rule of law.

    Michel de Montaigne was an influential 16th century humanist writer and politician who was Counselor of the High Court of Bourdeaux, not mayor.

    Dave

  • http://takeitorleaveit.typepad.com/ roger nowosielski

    Bliffle has the two people confused. Montesquieu was a statesman.

  • http://ruvysroost.blogspot.com Ruvy

    So, in short, I was right. I guess my memory isn’t going, after all.

  • http://ruvysroost.blogspot.com Ruvy

    Now that we’ve kinda cleared that up, perhaps you would like to consider the meat of my comment:

    If you look at Dave’s quotes from the Federalist and elsewhere, they mention separation of powers and divided government, and checks and balances, but not equal powers.

    Personally, I think that the farther sighted of the “founding fathers” realized that having a single individual as an executive would, over time, lead to concentration of power in that office.

    These reasonably learned men did have the model of Sparta to copy from, one which provided for a plural executive Council of Ephors, if I remember correctly. A plural executive would have truly prevented a president from gaining too much power. The Swiss did adopt that model and their government has divided powers, checks and balances and an executive that cannot overwhelm the other two branches of government.

    The Americans did not – and each year the imbalance of power grows.

  • http://takeitorleaveit.typepad.com/ roger nowosielski