5000 Year Leap (22 page)

   "Upon my return from France in 1779, I found myself elected by my native town of Braintree a member of the Convention for forming a Constitution for the State of Massachusetts. I attended that Convention of near four hundred members. Here I found such a chaos of absurd sentiments concerning government that I was obliged daily, before that assembly, and afterwards in a Grand Committee, to propose plans and advocate doctrines, which were extremely unpopular with the greater number. Lieutenant-Governor Cushing was avowedly for a single assembly, like Pennsylvania. Samuel Adams was of the same mind. Mr. Hancock kept aloof, in order to be governor. In short, I had at first no support but from the Essex junto, who had adopted my ideas in the letter to Mr. Wythe.... They made me, however, draw up the Constitution, and it was finally adopted, with some amendments very much for the worse."
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   It is interesting that in spite of all the opposition John Adams encountered, he did succeed, almost singlehandedly, in getting his state to adopt a constitution based on separation of powers. For the first time in the world a constitution read:

   "In the government of the Commonwealth of Massachusetts the legislative, executive and judicial powers shall be placed in separate departments, to the end that it might be a government of laws and not of men...."
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   In later years, Adams was successful in getting his ideas incorporated in the U.S. Constitution, but he was never able to gain a genuine acceptance of himself. Even though he was elected the first Vice President of the United States and the second President, he very shortly disappeared into history with scarcely a ripple. A hundred years after the founding of the country, neither Washington nor Massachusetts had erected any kind of monument to John Adams.
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It was only as scholars began digging into the origins of American constitutionalism that John Adams suddenly loomed up into proper perspective. Even he suspected there would be very few who would remember what he had attempted to accomplish. He wrote to a friend:

   "Mausoleums, statues, monuments will never be erected to me. Panegyrical romances will never be written, nor flattering orations spoken to transmit me to posterity in brilliant colors."
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   Nevertheless his political precepts of the "divine science" of government caught on. Even Pennsylvania revised its constitution to include the separation of powers principle, and Benjamin Franklin, one of the last to be converted, finally acknowledged that the Constitution of the United States with its separation of powers was as perfect as man could be expected to produce. He urged all of the members of the Convention to sign it so that it would have unanimous support.

   John Adams said it was his aspiration "to see rising in America an empire of liberty, and the prospect of two or three hundred millions of freemen, without one noble or one king among them."
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   "The necessity of reciprocal checks in the exercise of political power...." (George Washington)

   
   "The necessity of reciprocal checks in the exercise
   of political power ..." -- George Washington

   It must have been astonishing to John Adams to discover that after he had sold the people on the separation of powers doctrine, some of them wanted the separation to be so complete that it would have made the system unworkable,

   These people who took this puritanical view opposed the adoption of the Constitution on the grounds that it did not make the separation of power between the three departments complete and absolute.

   They missed a most important factor in Montesquieu's presentation. He said each of the departments was to be separate in its functions, but subject to the checks of the other two departments in case it became abusive in performing those functions.

   It is interesting that James Madison had to spend five
Federalist Papers
(numbers 47 to 51) explaining that the separation of powers between the executive, legislative, and judicial departments should
not
be absolute, but should make allowances for a built-in system of checks and balances. He said the trick was to separate the powers and then delicately lace them back together again as a balanced unit.

   Madison conceded, however, that keeping the three departments of government separated was fundamental to the preservation of liberty. He 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."
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   Madison then proceeded to explain how Montesquieu recommended that the powers be separated as to function but coordinated for the prevention of usurpation or abuse. Note his opening tribute to Montesquieu:

   "The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind."
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   In the
Federalist Papers
, No. 47, Madison indicated that even those states which demanded an absolute separation of powers in the federal constitution employed a blending of power in their own state constitutions. He pointed out that just as those safeguards were necessary for the states, they were equally important to include in the federal constitution. In fact, he said:

   "I shall undertake ... to show that unless these departments be so far connected and blended as to give each a constitutional control over the others, the degree of separation which the maxim [of Montesquieu] requires, as essential to a free government, can never in practice be duly maintained."
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   Notice that the purpose of "checks and balances" is a constitutional control in the hands of each department of government to prevent any usurpation of power by another department or abusive administration of the power granted to it. This "blending" does not, therefore, intrude into the legitimate functions of each of the departments. As Madison explained it:

   "It is agreed on all sides that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident that none of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied that power is of an encroaching nature and that it ought to be effectually restrained from passing the limits assigned to it.... The next and most difficult task is to provide some practical security for each, against the invasion of the others."
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   Just how difficult this task turned out to be is demonstrated in a number of problems which have arisen in our own day. The failure to use the checks and balances effectively has allowed the judiciary to create new laws (called judicial legislation) by pretending to be merely interpreting old ones. Failure to use the checks and balances has also allowed the President to make thousands of new laws, instead of Congress, by issuing executive orders. It has allowed the federal government to invade the reserved rights of the states on a massive scale. It has allowed the legislature to impose taxes on the people never contemplated by the Founders or the Constitution.

   The whole spectrum of checks and balances needs to be more thoroughly studied and more vigorously enforced. Madison appropriately anticipated that "parchment barriers" in the Constitution would not prevent usurpation. Each department of government has the responsibility to rise up and protect its prerogatives by exercising the checks and balances which have been provided. At the same time, the people have the responsibility to keep a closer watch on their representatives and elect only those who will function within Constitutional boundaries.

   All of these aberrations in the administration of government have done violence to the intent and desires of the people. The Founders felt that if the checks and balances as originally provided were to prove inadequate, the remedy should be a device by which the people might more directly influence the power centers of government so that decisions would be more in harmony with their wishes. James Madison said it this way:

   "As the people are the only legitimate fountain of power, and it is from them that the constitutional charter under which the [power of the] several branches of government ... is derived, it seems strictly consonant to the republican theory to recur to the same original authority ... whenever any one of the departments may commit encroachments on the chartered authorities of the others."
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   But how do the people protect themselves? There must be adequate legal machinery provided so that the representatives of the people have more direct input to project the will of the people when the officials of government are ignoring it. Madison discussed the various overseer devices which had been considered in the past to keep the departments of government within their Constitutional channels. None had proven particularly successful.

   Pennsylvania tried out a Council of Censors to enforce its constitution. The council was effective in determining what violations had occurred, but was powerless to remedy the evil.

   Others suggested that the people be allowed to vote on critical constitutional issues at specified times. However, the tremendous emotional anguish displayed during the ratification of the U.S. Constitution demonstrated that this was not something to be undertaken very often. Said Madison:

   "The danger of disturbing the public tranquility by interesting too strongly the public passions is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government [the ratification conventions] and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied."
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   In the end, Madison contended, there is no better device to curb the departments of government than the internal machinery of checks and balances provided in the Constitution as written. Said he:

   "The only answer that can be given is that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."
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   What the Founders finally devised is recognized as an ingenious device when properly implemented. The fact that it has sometimes fallen into neglect in recent times does not detract from the fact that it is still the most effective way to maintain the American eagle in the balanced center of the political spectrum. The Constitution made the departments separate as to their assigned function, but made them dependent upon one another to be fully operative. As we depicted in an earlier section of this book, the symbolic American eagle has three heads, but they operate from one neck. As a former Under-Secretary of State, J. Reuben Clark, Jr., explained it:

   "The Framers ... separated the three functions of government, and set each of them up as a separate branch -- the legislative, the executive, and the judicial. Each was wholly independent of the other. No one of them might encroach upon the other. No one of them might delegate its power to another.

   "Yet by the Constitution, the different branches were bound together, unified into an efficient, operating whole. These branches stood together, supported one another. While severally independent, they were at the same time, mutually dependent. It is this union of independence and dependence of these branches -- legislative, executive, and judicial -- and of the governmental functions possessed by each of them, that constitutes the marvelous genius of this unrivalled document. The Framers had no direct guide in this work, no historical governmental precedent upon which to rely. As I see it, it was here that the divine inspiration came. It was truly a miracle."
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