The Betrayal of Checks and Balances
by G. Stolyarov II
The philosophy of Ayn Rand has taught me and numerous other thinkers of the new intellectual Renaissance the moral groundwork for laissez-faire capitalism as the sole economic system which fully and unequivocally recognizes the individual's objective prerequisites to survival, his natural rights of life, liberty, pursuit of happiness, and property. With slight loopholes, this was the implicit philosophy behind the founding of America, and the principal force in its first one hundred fifty years of development.
Yet, in the words of Aristotle, "The least initial deviation from the truth gets multiplied later a thousandfold." This phenomenon was precisely what had befallen the United States, beginning to manifest extensive signs by the final decade of the nineteenth century and gradually paving the way toward the abdication of more and more essential liberties until the formation of a mixed economy welfare state with a stranglehold on education, development, space exploration, health care, and the latter third of every man's life.
The causes of this collapse are, admittedly, manifold. The moral root, the incompatibility of capitalism with the altruist ethics, has been extensively discussed by Rand in her works. Moreover, the Constitution had granted the government power to regulate interstate commerce, which clause, largely disregarded for over a century, became a principal means of political leverage in the bureaucratic schemes of the past 113 years.
Nevertheless, another root of the decay of limited government has not yet been extensively addressed, and that is, namely the loopholes available within the renowned Constitutional system of Checks and Balances itself.
My respect for the Founding Fathers' invention transcends all forms of mere courtesy and approaches a single word: reverence. This system had been the first of its sort in attempting to provide inherent protections against the usurpation of power by any one individual or group. Whereas the Roman Republic shielded (for a considerable, but not eternal, span of time, as the assumptions of power by Sulla and, later, Julius Caesar demonstrated) its constituents from the emergence of a monarch, this safeguard had been instituted for the sheer purpose of rendering Rome the site of a brutal bloodbath involving a myriad of pressure groups armed with clienteles of dagger-wielding "lobbyists." The Founding Fathers were the first in history to implement the recognition that the tyranny of many, be it in the form of oligarchy (such as a patrician Senate), anarchy, or Athenian democracy, is just as, if not more so, perilous than the reign of a King or High Priest.
By assimilating ideas of English government, such as legislature by Assembly instead of the mob, the bicameral structure of Congress, and the separateness of the judicial structure from the legislative, as well as adding their own innovations, including the electoral college and a chief executive whose function does not extend to the creation of laws, but merely their enforcement and/or veto, the Founding Fathers intended to bring about a state of affairs in which the whim or "ideological drift" of any odd majority will not enable it to triumph in the violation of individual rights via the seizure of any given organ of government. Or so, at least, they had hoped.
Why then has, in the past 113 years, demagoguery and ever-mounting mass credibility, unseated all of these institutions? Why have the denizens of the freest nation in history succumbed, with sheepishly bleating affirmation that extends to this day, to business-shackling Theodore Roosevelt, welfare-statist Franklin Roosevelt, nationalizing Harry Truman, international altruist John Kennedy, sly manipulator Lyndon Johnson, politically correct socialist Bill Clinton, and, which may be the final culmination in this century-long development, the emerging brazenly anti-individualist, anti-free enterprise Hillary Clinton?
Despite its attempt to limit the tyranny of the majority, the Constitution had erred on the side of majoritarianism, perhaps due to the fact that its creators' time had been flooded by absolute monarchies, with the age of Cleisthenes, Pericles, Gracchus, and miscellaneous exponents of a "democracy's" violation of individual rights, far behind. One can forgive the Founding Fathers for lack of omniscience in their inability to predict the re-emergence of duty preachers and drafters a la Pericles, "champions of the poor" a la Gracchus, and flauntingly egalitarian merit-haters a la Cleisthenes. Yet one cannot forgive, or forget, the outcome. One must remedy it by first identifying the flaw in the original system of Checks and Balances and suggesting a more impervious alternative.
It should be noted that every position on every level of government, but especially on the uppermost, is either directly or in large influenced by majority rule. The legislators are elected by direct ballot, whereas unconditional majority influence is counterbalanced only by the Electoral College (which had been elected by direct ballot) in the selection of the President. Presently, even that check is endangered as Hillary Clinton and her supporters, displeased at the loss of their lapdog, Al Gore, in the 2000 Election, are clamoring for the Electoral College's abolition. (Note and be warned, reader, that, had this been the case, and direct majority vote decided the head of state, we would have been living under the yoke of a Gore Presidency.)
Moreover, the Judicial Branch, perhaps the best cushioned out of all the three, is selected by the President (via the appointment of justices to the Supreme Court), who is selected by the Electoral College, which is selected by direct ballot. Despite the fact that it is the least alterable by present majority whim, the Judicial Branch's danger is even more lingering. It is the voice of past majority whim, embodied in the selections by past Presidents, who were more often collectivist demagogues than not and employed the Supreme Court to rubber-stamp their proposals. There was a time when such a conservative force would have been conductive to preserving a "traditional" state of liberty and holding back regulating "innovators," yet it is the "social reformers" who have now become "traditional," with a lengthy history of judicial appointments before them, and it is the task of the new innovators to dismantle the behemoth of big government which their gullible predecessors had left as their legacy. This indirect appointment of justices by majority vote subverts, however tactfully, the entire principle of impartial, dispassionate, objective law independent of the "zeitgeist," the lobby, or "community standards" (see Miller v. California).
Also in the history of the Supreme Court, which further multiplies its fallibility, is the unfortunate incident in 1935 when Franklin Roosevelt, enraged at the Court's declaration of the National Industrial Recovery Administration's unconstitutionality, attempted to expand the number of seats in the Court by executive decree and pack it with his lackeys. While the subversion failed, Roosevelt did manage to mandate a set retirement age for justices in 1937, which immediately struck out over half of his principal opponents in the Judicial Branch. In summation, executive control over the judicial system manifests itself in two dangerous phenomena, which have been conductive to firmly entrenching and magnifying regulatory law during the past eleven decades:
- Past Presidents "ruling from the grave" by selecting judicial nominees that will rubber stamp their agendas, as especially conspicuous in the case of the post-FDR Court, which continued to intensify, from 1945 to 1961, the crackdown on businesses and the profit motive in such antitrust cases as ALCOA and General Electric. FDR's meddling had rendered the Supreme Court far more docile than it had been prior to 1937 and thus extended the New Dealers' ability to strangle the country with impunity.
- The mounting power which present executives can wield against the Supreme Court. There has been a history of intervention, beginning with Franklin Roosevelt, which, though unconstitutional on all counts, has been tacitly and sometimes crusadingly upheld by statists tactful and cunning enough to know which power ploys will not attract the public's notice or spark its outrage. A recent statement by Dick Gephardt, one of the prospective Democratic Presidential nominees for 2004, brazenly spewed forth his dictatorial intention: to overrule the Supreme Court with an executive edict in the event that the racist practice of affirmative action becomes definitively outlawed. Can anyone expect anything less from an ideological descendant of FDR?
Of course, some institutions guided by the premise of majority rule are essential to a free society; the sole purpose of government is to exercise the powers that its citizens have delegated to it. Thus, an assembly of representatives and senators is necessary to be called upon to debate any innovation in public policy, this being a partly logistical consideration, as there is simply insufficient time to present, in the same forum, the comments of every suffrage-holding citizen. More importantly, it is a safeguard in and of itself, as, in theory at least, representatives are individuals well enlightened in both fundamental moral/political principles and the intricacies of the voluminous law codes in existence. The key to proper government, however, is that this assembly be limited in the sort of decisions it may pass and be barred from promulgating any measure that violates the rights of even a single individual. So is it necessary for the majority to hold an indirect sway over the selection of a chief executive; this is merely the people's choice as to whose personality, work ethic, and ideological sympathies are best suited to optimal law enforcement and restraint of any pressure group that decides to use a privileged position in the legislative to grant itself handouts at the expense of others. The purpose of the Electoral College is quite ingenious in this regard. The presence of two senators in every state places the less populated states within greater proximity to the densely inhabited ones in terms of their contribution to the vote pool. As such, should a given demagogue come to hold tremendous influence in a large city and allure its population by means of proposing state-sponsored projects of development, transfer payments, or plain brute expropriation by looting the remainder of the country (or its rural areas), his capacity to win the Presidency would be diminished compared to the scenario of pure majority vote.
Whereas, again, I would like to commend the Founding Fathers for their prudence in the construction of the Legislative and Executive branches, it is essential to remember that their system is functional in the presence of a pivotal condition. Thomas Jefferson best expressed it by stating that "Liberty requires eternal vigilance." No government, no matter how intricately or keenly constructed, no matter how padded against undue interventions of looters and thugs in disguise or on the streets, is impervious to subversion and corruption from within by men who renounce, either covertly or braggingly, the principles behind its foundation. Thus, even in the two better-planned branches of the United States government, their current exponents have broken practice apart from theory and, in the entirety of their regulatory undertakings, have demonstrated utter and disgraceful contempt for the Constitution and the notion of individual rights. As in all other developments, the latter decade of the twentieth century has seen an ideological climax of this movement that leaves extensive doubt about whether it can conceivably heighten its intellectual profanity even further. It is demonstrable in the writings of liberal propagandist "historians" such as Howard Zinn, who claim that the Bill of Rights was a peculiar prejudice of the Founding Fathers' "class interests," which purportedly (but according to no evidence whatsoever) included maintaining the status quo of slavery and continually disenfranchising the working poor. With men like Zinn having held sway over the country's intellectual centers for the past thirty years, it is no surprise that not the best and most competent, but the most twisted, scheming, anti-principled, and anti-American of men have been indoctrinated into their habits, and, guided by the worst motives, risen to the top of the political hierarchy.
To remedy the present betrayal of Checks and Balances and return the system to greater concord with the Founding Fathers' design, substantial structural alterations are necessary, which I intend to address in subsequent works.
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