To What Extent Should Governmental "Powers" be "Separated"?

Perhaps the most interesting facet of the doctrine according to which acceptable democracies require careful separation of the Executive, Legislative, and Judicial powers is that it seems to be almost entirely a prudential/empirical matter. That is, I doubt there is any fundamental axiom of democracy that requires that law making, law administering, and law interpreting be performed by strictly separate entities with a government. Thinkers like Montesquieu and Locke sometimes wrote as if there was some intrinsic connection between liberty and separation of powers, but I don't think they meant to suggest that this would be so in "an ideal world." So, while those in the current Adminstration in Washington, D.C. who push for something called a "unitary executive" often attempt to base their claims on some sort of strict separation thesis, it seems to me that their main impetus is just to obtain as much unbridled power for the executive branch as possible. It should be admitted, however, that there is at least some road from a demand for increased democracy to a resting place at which the (unelected) Federal judiciary has less power than it has exercised since the Warren Court--and (elected) legislative or executive officials have more power. On the other hand, no usurpation of power from Congress by the Executive can be defended on those grounds, and probably most of the unitary executive arrows currently flying around the Beltway have been thus far aimed at the legislative branch. (And that is hardly surprising since the current SCOTUS has a solid Trumpian majority.)

The main point I wish to make here, however, is that the extent and impregnability of the "wall" by which governmental powers ought to be divided is not a matter that can be sussed out apriori. Rather, it's the sort of thing that should be based on experience. James Madison famously warned in Federalist #51 that "A dependence on the people is, no doubt, the primary control of the government; but experience has taught mankind the necessity of auxiliary precautions. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." 

I don't myself know whether, if men were angels, no government would be called for, but I agree with Madison that as individual human beings are often nasty and power-hungry, such internal controls over government operations as the division of the most basic operations of government into three distinct parts is sensible. Now, if no governmental junto in one section of government were ever likely to try to usurp the power of all the other branches, no such separation would be required. But alas....

Unfortunately, as Paine explained in his Common Sense, separation of powers, no matter how strict, cannot do the trick in the real world. He wrote, "[T]he greater weight will always carry up the less, and as all the wheels of a machine are put in motion by one, it only remains to know which power in the constitution has the most weight, for that will govern: and though the others, or a part of them, may clog, or, as the phrase is, check the rapidity of its motion, yet so long as they cannot stop it, their endeavours will be ineffectual." 

Paine also seems to me to be right. That is, because men are not angels, it makes sense to separate govenment into branches as Madison suggested, but that won't take care of the problem either, because from time to time one branch is quite likely to attempt to overpower the others (as is currently happening in the U.S. under Trump), and success in such endeavors remains not just possible but a real danger.

What should be done then? I think the answer is quite clear: if, ultimately, governmental power comes from those who are governed, (something on which every one of the observers mentioned above all agree), it is absolutely essential that every good democracy contain unremovable Constitutional provisions for both Recall (the ability of the electorate to remove any governmental office-holder by a relatively quick vote) and Referendum (the ability of the electorate to repeal any law or regulation by vote). No good constitution can lack either of them.*  

Of course, we don't have any such provisions in the U.S. Constitution. That makes it a poor excuse for a democracy-protecting document. Instead of worshiping that old and creaky fundamental law of the country, it needs to be fixed or replaced. And because, unlike Recall and Referendum provisions, no separation doctrine can be discovered a priori, such provisions should not be reckoned among those Constitutional enactments that may not be changed as experience recommends.#

Readers may complain that I have not answered the question posed by the title of this blog entry. They are right: My only suggestion is that we follow the advice of Madison, Paine, the early 20th Century Progressives who pushed for Recall and Referendum, and those who are currently involved in the empirical study of what works in this area among the community of comparative political scientists.  

_________

*Reversal (the ability of the electorate to overturn certain types of judicial decisions by vote) may also be required, but I think it is quite difficult to get that one right without endangering Judicial independence, which seems to me necessary any authentic  rule of law. [My democracy book contains a substantial discussion of the difficulty in getting Reversal right.]

# The matter of the various types of amendability that good Constitutions should accomodate is also discussed at some length in my book.

The Apparently Disappearing Possibility of an End to Identity Politics

There have been four main strategies aimed at releasing electorates from what seem to me to be the dangerous effects of identity politics on democracy. [See my recent piece on Musk and Hegel for a blatant example of the sort of political theory one can expect to result from xenophobia]. 

One approach is that which Stalin undertook to incredible extremes. He wasn't a terribly deep thinker, but he could see that the wide variety of  languages, cultures, religions, prejudices, etc. found in his gigantic autocracy made a united citizenry very hard to obtain. As devotion to one's church or language seemed inconsistent with his central idea that the Soviet Union--and of course, he himself--were what had to be considered MOST IMPORTANT to every Soviet citizen, Stalin burned down the churches and took children from from their parents throughout widespread regions. He then had these children brought up where they would hear nothing but Russian and their only religion would be his Stalinist form of Marxism. 

In spite of the fact that this plan was in effect for a substantial period of time, as soon as the slightest bit of Glasnost was effectuated, the parents who still lived were found, the churches were rebuilt, the old languages were spoken again, the clothing and cuisine reverted to their ethnic origins, etc. It was a near-total failure.

The second approach is the one that has been taken by the United States and a number of other countries around the world. The genus has two species that have been characterized by two metaphors: that of the melting pot, and that of the mosaic. The first rejects the Stalinist selection of an ex ante choice of approved result, but agrees with Uncle Joe that one needs to end up with a single, unified culture; the second takes the position that a country may consist of numerous diverse cultures, but they can learn to be happy and comfortable living together. 

The fourth approach is that of Hitler. Neither reeducation nor expulsion is deemed sufficient, and genocide is taken to be the only answer. Of course, there may be hybrids; like Netanyahu, one may decide that either expulsion or genocide is fine.

It may be noticed that the first three visions share a dependence on education. The first two require a sort of "reeducation" that will result in some sort of cultural alteration--either purification or a sort of average produced by "melting." The third  approach depends upon instruction only to push the idea that groups which may continue to differ  greatly can come to understand that such differences need not imply either hostility or any divergence in rights or privileges. 

As indicated, Stalinism has obviously failed. Even if it could work, it is very expensive, and more than a couple of generations seems necessary for any success. It is unsurprising, then, that it has almost completely fallen out of favor. On the other hand, the Hitlerian vision seems still to attract a lot of people around the world. 

Perhaps there are countries to be found where either the mosaic or the melting pot approach has worked (or is at least making progress), but the current state of American politics provides a clear indication not only that both have ultimately failed in this country, but that whatever benefits that diversity education has attempted to foster here over the last several generations will now be abandoned. In fact, education generally will be given little or no priority by the Federal government under Trump: it is thought to be dangerous to any theory that yearns for complete homogeneity.

In the U.S (in part because of earlier genocides), it is not predominantly differences in indigenous languages or cultures that that are--in lockstep  the Stalinist and Hitlerian conceptions--thought to be harmful (but to require expulsions rather than either reeducation or exterminations). Rather, it is differences in race, religion, and ideas about gender that are taken as most dangerous. (Of course, where there ARE language differences, only one language will be tolerated.) In all cases, expulsion and the filtering of future immigrants are understood to be the solution to every sort of peril. There is no current apparent interest in either extermination or reeducation, just in getting "different" people the hell out of here.

Is there another way, a fifth approach, to address this fundamental obstacle to authentic democracy? Must we concede that, because of some sort of basic psychological feature of human beings, every truly democratic polity must be homogenous (and thus probably quite small)? 

I leave this difficult question to others with more intelligence and/or deeper insights than my own. I will say, though, that in spite of a lot of reading  and thinking about this matter over the years, no fifth approach has ever struck me as being very promising.

Second Comment on the Immunity Decision (Trump v. United States.)

 

[T]he nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.

There have been numerous objections to this holding in Trump v. United States. Indeed, lakes of both tears and ink have been spilled over it, and I can't deny that I have contributed my portion to these murky pools. In my first expression of dismay over this decision, I concentrated on a specific provision that entails that the holding is more extreme than many seemed to realize. These elaborative remarks were clearly inserted intentionally, as they shows up several times in Justice Roberts' opinion. But in spite of this problematic  content it somehow escaped the notice not only of  media pundits and legal scholars, but also of the dissenting Justices. At any rate, every summar of the decision I've seen gets this aspect wrong, and in that way mitigates its effects.

Today, however, I want to focus on a more basic matter, the question of what  is thought to be so terrible about the the granting of immunity to those who have been elected President, regardless of either the plain text of the U.S. Constitution or  any arguments regarding how its language should be interpreted. We have all heard that the U.S. is supposed to be a country of "laws, not men," and that in any such jurisdiction, "no person must ever be deemed to be above the law." 

But...why not? In a democracy, shouldn't the citizens should be the final determinants of what is and is not to be allowed under their watch? If the electorate can be said to have in some sense made, or been the source of the criminal laws when they elected those who actually put pen to paper and enact those statutes, why cannot that electorate indicate a wish to exempt this or that individual from anymore all of them? Couldn't any such exemption--including complete immunity from prosecution--be thought of as a kind of reward for winning an election, just as a number of various enumerated powers are? Can't it then be reasonably claimed that such "people power" is all that Justice Roberts' decision has made crystal clear? 

I believe the answers to these important questions can be put quite succinctly. In fact, I think that they were quite eloquently put around 250 years ago in a well-known and historically important pamphlet. But before getting to that work, it is worth looking checking if the (also fiery) Sotomayor dissent to Justice Roberts' majority decision answered these fundamental questions just as well. 

Naturally, the dissent being a legal document, it is bound to pay close attention to Constitutional language and prior decisions as the bases for claiming the majority got things wrong.  But for our present purposes we can just note that the strictly legal issues are (a) controversial and so not likely to be associated with widely convincing demonstrations; and (b) probably at least a partial function of the prior political leanings of the Justices. That is, it's hard to deny that an element of political loyalty may have been involved both among those who argued that Donald Trump absolutely must have broad immunity from prosecution, and among those who held that even if Presidential immunity were defensible in the abstract (a proposition they claim to doubt), giving it to Donald Trump must be a terrible mistake.

In such an environment, it is unsurprising that that numerous utility arguments were brought on behalf of the views pushed by both sides. For example, the Roberts contingent touched on the possibly undeserved burdens prosecutions could place on ex-Presidents, who would surely be hounded by constant suits, charges, media calls, and investigations--burdents that Trump had already had been forced to shoulder during his first term in office. Furthermore, the idea was put forward that, considering these psychic and financial costs likely to be thrust on ex-Presidents, who would to want to run for the U.S. Presidency? Shouldn't we expect the best candidates to look for other lines of work? And, of course, this cohort concluded that if only lesser candidates came to the surface, sooner or later, the entire nation would suffer.

What about the dissenting cohort? What sort of arguments--utility-focused or otherwise--did they bring? Justice Sotomayor spends considerable time on what she deems President Trump's "treasonous acts," seemingly defying anybody to find anything in the Constitution that can be thought to shield anybody from that sort of behavior. Here are ten of the acts she mentions (with all citations and internal quotations here excised): 

•  He "spread lies that there had been outcome-determinative fraud in the election and that he had actually won."
•  He "pushed officials in certain states to ignore the popular vote; disenfranchise voters; dismiss legitimate electors; and ultimately cause the ascertainment of and voting by illegitimate electors in his favor."
•  He (allegedly) "went so far as to threaten on state election official with criminal prosecution if he did not 'find' [sufficient votes to win that state].
•  He (purportedly) "developed a plan to disrupt and displace the legitmate election certification process by organizing fraudulent slates of electors." 
•  He sought to use the Justice Department "to bolster his knowingly false claims of election fraud by initiating sham election crime investigations."
•  He "falsely present[ed] the fraudulent electors as a valid alternative to the legitimate elctors."
•  He "sought to persuade the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results." 
•  He (purportedly) "attempted to use a crowd of suppoters that he had gathered in Washington, D.C. to pressure the Vice President to fraudulently alter the election results." 
•  He "falsely claimed that, based on fraud, the Vice President could alter the outcome of the election results."
•  He (allegedly) "delayed in taking any step to rein in the chaos he had unleashed [and] attempted to exploit the violence and chaos at the Capitol by pressuring lawmakers to delay the certification...and ultimately declare him the winner."

As at least many of the above-listed actions seem to Justice Sotomayor to have been obviously treasonous, she concludes that they cannot be protected under any sensible interpretation of the Constitution. And, of course, she believes that the effects on the well-being of American citizens--indeed the very future existence of the country--of allowing a traitor to rule without any fear of future punishment ought to be undeniable.

Again however, if we leave both uncertain Constitutional debates and future utility estimates aside, perhaps we can ask the more explicitly philosophical question of whether an electorate either can or even ought to make its executive (even a distinctly evil one) immune to all prosecution. After all, that seems to have been Hobbes' view of the matter. Readers here may remember his arguments to the effect that it was in the interest of people suffering in lawless conditions of nature to contract with a Leviathan who, subsequent to such agreement could not be coherently punished...or even safely criticized. On that view, even if a population insisting that  consideration of future utilities favors bestowal of Presidential immunity are dead wrong, it is completely within their "constitutent authority" to grant that protection to their President/King/Monarch/Emperor/Poobah. 

As I mentioned at the outset of this blog, however, the Hobbesian view was very effectively criticized by a not-quite-forgotten political philosopher who participated in the fervid constitution-making that occurred in France around time of its Revolution. In addition, this democrat somehow managed to keep hold of his head. I refer to the abbé Emanuel Joseph Sieyès.

Sieyès most famous pamphlet was the hugely influential What is the Third Estate? But just a month or two before publishing that diatribe, Sieyès put out his Essay on Privileges. It is notable that while Sieyès had no particular problem with the concept of monarchy in the abstract, on his conception, to be defensible, it needed to be understood to be a predominantly ceremonial office, something the people could use to identify and celebrate their homeland. He believed that it was perfectly fine to reward Kings, but they could not be endowed with any privileges (not even the power to veto legislation). He argued, in fact, that it makes no sense for the people use their inalienable "constituent power" to bestow privileges of any kind. 

Well, why not? I will let Sieyès speak for himself:

The aim of law is to protect liberty and property, and to render easier the fulfilment of the great moral precept, from which all positive law proceeds,—do no harm to your neighbour. 

What does Sieyès claim can be inferred from this first principle?

[If] there is one supreme law which ought to be the parent of all others, and that is,“Do wrong to no man.” [Then] it is this great natural law which the legislature distributes, as it were, piecemeal in applying the principle case by case to the various private orders in society.

[But] to be exempted from the action of any particular law is to be endowed with a right to harm one's neighbours. 

Provided the law in question is good-- and such as are not should not exist--to have the exclusive right of doing anything [that conflicts with it, and is therefore] morally wrong is to rob one's neighbours of a part of their liberty. 

All privileges then are, in the very nature of things, unjust, odious and opposed to the great end of all political society. 

Every law, as we have already observed, expressly says, “Do wrong to no man.” Where then any class of citizens enjoys an exemption from any particular law, it is directly saying to those citizens, “You are permitted to do wrong.” There is no power on earth which should be authorised to make such a concession. If a law is good it ought to bind every individual; if bad it ought to be abolished. It is an assault upon liberty.

All privileges, then, from the very nature of things, are unjust, odious, and contrary to the supreme end of every political society.

Where then any class of citizens enjoys an exemption from any particular law, it is directly saying to those citizens, “You are permitted to do wrong.” There is no power on earth which should be authorised to make such a concession. If a law is good it ought to bind every individual; if bad it ought to be abolished. It is an assault upon liberty.

The entire body of citizens is the principal object. It is that which is served. Ought it then in any sense to be sacrificed to a servant who is only entitled to a reward for having rendered it a service?

But what about the additional power we give to our political leaders, or the other rewards bestowed upon them? Is that also an absurd, contemptible idea? Not at all:

Reward the member that has merited well of the body; but do not perpetrate the absurd folly of abasing the body before the member. 

I should note that Sieyès does not ignore utility considerations in his pamphlet or elsewhere in his writings or speeches. But in discussing those expected results here, he concentrates on what any privilege similar to immunity from prosecution is sure to have on those on whom it is bestowed: 

The professed intention of the privilege [may bave been to incite him to better actions, but it has succeeded only in depraving him.

His heart [will become] agitated with a desire of being first, with an insatiable thirst of domination. This desire, unfortunately too agreeable to human nature, is a true antisocial malady, and, from its very nature, it must always be detrimental. Judge then of its ravages, when opinion and the laws of a country conspire to lend it their power and support.

Thus sayeth Abbé Sieyès. I have to admit that this skeptical cleric seems to me a kindred spirit. (Is this because of or in spite of his well-known character flaws? Hmmm. Quien sabe?) But Sieyès somehow managed to avoid the guillotine and live a long--if not terribly happy--life. He reminds me, in fact, of another flawed and regularly derided revolutionary whom I also admire, Viktor Chernov. Both squandered what power or influence they ever managed to obtain. But, at least for part of their careers, each was a thoughtful and committed democrat. And they were both escape artists of the highest order: while one miraculously avoided the Jacobins' guillotine, the other somehow managed to outwit  the Bolsheviks, their pick-axes and gulags. One hated his king the other his tsar, but neither was ready to replace his ruler with a dictatorship of either sans-culottes or proletariats.

To conclude (as I often do here at luckorcunning), let me urge a focus on finding that course of action which would be most authentically democratic under the circumstances. Such a move is often necessary not only to improve a polity but in some cases to keep it alive. And bestowing prosecutorial immunity to a current or past head of state is exactly the opposite of what is called for by democratic principles.

Is Elon Musk a Hegelian?

 

Just the other day, in response to a question from an interviewer, Elon Musk said this (essentially anyhow, I've cleaned it up a bit for him):

If you took the people of Italy and teleported them to the United States, the land where they came from would still be Italy. But if, after all the Italians had been teleported to the U.S., you teleported a bunch of people to Italy from some other part of the world, then the geographic region where those immigrants landed would no longer be Italy. It would be that other country from which those people had come. A country is its people not its geography.

If you remove the unecessarily nerdy "teleport" business, this remark is bound to remind some people of Hegel's views regarding Volksgeist or national spirit. On the orthodox interpretation of the Hegelian conception, what makes a nation is basically a matter of its cutural and religious traditions. That Italy is currently located somewhere in Europe is just a historical accident: what makes that place Italy is essentially a matter of language, religion, ethical views, public law, cuisine, arts, fashion, etc. According to Peter Wolsing, such a view "recognizes no higher ranking international right, nor does it defer to ideals of universal human rights [since] universal right is necessarily rooted in a particular nation state."* 

As Hannah Arendt wrote in her Origins of Totalitarianism, "The practical outcome of this [Hegelian conception] was that from then on human rights were protected and enforced only as national rights and the very institution of a state, whose supreme task was to protect and guarantee man his rights as man, as citizen and national, lost its legal, rational appearance and could be interpreted by the romantics as the nebulous representative of a 'national soul' which through the very fact of its existence was supposed to be beyond or above the law."

Aside from the dire political perils, one may wonder what Musk would consider to be the effect of a migration of only a portion of the population  in one direction or another.What happens if only half of Italy leaves and is replaced by immigrants? Or, again, consider the results of the population of (European-based) Italy moving to a previously emptied out portion of a federally organized polity like the U.S. Suppose, for example, that 50,000 Italians moved en masse to a completely decimated Rhode Island and so had become the only people living in that area. Would that mean that an "American Italy" now exists in the midst of the states that had formerly comprised New England? Would those Italian citizens therefore not be subject to U.S. laws...or would that just be a matter of which group has sufficient power to subdue the others (the non-Italians or non-Americans) and enforce what laws it wishes within this region's borders?** It certainly calls for an extremely Schmittian analysis.

In sum, Musk's offhand remarks are not simply the expression of a dangerous vision, one long associated with 19th Century romanticism, 20th Century Nazi ideology, and current justifications for geoncide, they can also be seen to be incoherent when looked at closely. As I discuss in my book, there are numerous reasons for concluding that polities need to be understood to be essentially territorial/geographical or nothing sensible is likely to be drawn from the world of politics and law.

* From "Hegal on Ethical Life and the Modern State." It is important to note, however, that Wolsing himself thinks that Hegel's position is more liberal than a strict focus on Volksgeist suggests because of his conception of a historical world spirit--the "higher universal law of history." I want to stress that I am not a Hegel scholar; I here just report a long orthodox interpretation of Hegel's influence on later political positions. For a detailed, discussion of many of the relevant issues involved here, I recommend Istvan Hont's classic paper "The Permanent Crisis of a Divided Mankind: nation state and nationalism in historical perspective."

** It's also easy to see how this conception might invite the dreaded sorities paradox to swallow up the entire issue.

Przeworski on What Makes for Democratic Polities and Policies

 

 In a recent paper in the Journal of Democracy, Adam Przeworski asks "Who decides what is democratic?" As someone who has spent many years pondering the nature and requirements of self-government, perhaps I may be excused for having the initial inclination to answer, "Hey, I'll do it!"  But, in reality, this is a trick question–even though it’s not clear that Przeworski has entirely understood this himself. For whether a polity, the assumption of governmental power by an official, or the enactment of some policy is democratic (or has been democratically accomplished) requires that a crucial distinction be made–and it isn’t quite the distinction between “maximalist” and “minimalist” democracy that he outlines in this paper. The more basic ambiguity is between (i) The consensus regarding whether the polity (or promotion or enactment) has characteristics sufficient for its classification as “basically democratic” among ranking organizations, media outlets, NGOs, scholars, etc. around the world; and (ii) A determination of whether the polity, promotion or enactment is consistent with all the principles required for authentic self-government--whether the gaggle in (i) approves of it or not.

It should be clear that (i) and (ii) need not always have the same answer. For example, it is commonly said these days that Americans are now in danger of “losing their democracy,” and, of course, the U.S. was generally deemed a democracy before blacks or women were allowed to vote. So, it should be obvious that assessments of that nature involve type (i) acceptability only. What I mean is that most of us will now agree that before universal adult suffrage, the U.S. was not authentically democratic; and I hope many will agree with me that, with its Electoral College, Senate, gerrymandered districts, Filibuster rule, etc. it has always been and remains a considerable distance from meeting the criteria for legitimate self-government, however it happens to be classified by the media. [This matter is discussed in substantial detail in my book, as well as in a critique of epistemic democracy that is forthcoming in the journal Prolegomena. Indeed, regular readers of this blog are bound to know that this matter is something of an obsession with me.] Nevertheless, I can concede that some U.S. elections and the passages of some state laws--(maybe only in unicameral Nebraska!) may have been democratically produced, even pursuant to (ii).  

 

Przeworski seems to me to have been right to distinguish outcomes from procedures in his paper. However, while such demarcation is essential to his minimal/maximal distinction, it ought to be seen to have nothing much to do with answering either of what I claim to be the more basic questions involving (i) and (ii). I suspect he wouldn't go quite as far as I do on that matter, but he does believe that violations of “norms of universalism, equality, or freedom, which many see as essential to democracy,” can occur even via apparently democratic procedures.

 

In my view, figuring out precisely what authentic democracy requires is key here: some disturbing outcomes may be democratic, others cannot be, regardless of the apparent purity of the procedures utilized. But answers aren't necessarily a matter of the outcomes in any case: the procedures themselves are disqualified if, e.g., political speech or association rights haven't been guaranteed in advance.   

 

With respect to the strictly procedural aspects, Przeworski makes “judges” the guardians. That seems confused to me, since courts should be expected to follow/interpret the basic laws of their jurisdictions, and there is no reason to suppose that these laws are all consistent with the characteristics required pursuant to either (i) or (ii).  On the other hand, I believe that he is right when he says that democracy is “just a terrain on which somewhat equal and somewhat free people struggle for the realization of conflicting ideals, values, and interests.”