Greater Separation of Powers

What mistake did James Madison, Thomas Jefferson and the other Founders make? Their biggest mistake must have been that they believed that a geographic area needed one and only one way of ordering, one central power.

A structure for liberty was encoded in the U.S. Constitution and many essential components needed to maintain freedom and rights. However, if you analyze the American system of government you would find flaws in it which lead to a form of government that becomes a monopoly on the use of force. This would greatly reduce our liberties instead of securing them. The original system would not be destroyed, but would have its basic principles extended to their logical conclusion, which is almost as bad. This development is not inevitable and once started, can be corrected.

The main source on which this article is based proposes a solution to this and a way to correct the trend. Randy E. Barnett, Law Professor at Georgetown University, in his book The Structure of Liberty: Justice and the Rule of Law, presents an excellent case for an elegant, small set of rules or rights and a poly-centric ordering of power in our society. The book begins with a delineation of the difference between liberty and license.

Liberty is not a free-for-all, an orgy of acquisition and consumption without regard for others.

Liberty has a structure provided by the Liberal conception of Justice and the rule of law. True liberty does not mean being able to do whatever you please in total disregard of either your long-term self-interest or the interests of others. It is not a quest for pleasure at any cost. Barnett does not go far beyond this in fleshing out anything you would describe as a full-blown theory of morality, but asserts it is not purely consequentialist or utilitarian, bur rather building on the principles of Natural Rights in the footsteps of John Locke.

Barnett uses the word "structure" here for an interesting reason. He saw an analogy between the order of a free society (wherein people could be quite free to do what they need to do without harming others) and the structure of an office building. Without the structure you could not pack so many people into a square block or enable them to move to many levels and places within it.

Yet the structure necessarily imposes limits to your movement in order to give you this freedom of movement and including so many people. So also a good set of rules or principles that would protect your liberties also have constraints and limits, in order that everyone can simultaneously enjoy the same degree of freedom. Against that background he constructs a careful argument leading to a set of principles that could form such a structure.

As a foundation for his argument, he carefully describes the problems of knowledge and the problems of power and interest (partiality) that are entailed. For the purposes of this article, the immensely interesting case that Barnett makes for a decentralized order is too lengthy to describe here in a way that it deserves.

The context is our use of scarce resources that we have at hand. We all have our own private and local knowledge, to which no one else is privy. This knowledge is conceived to include plans, goals, purposes as well as facts. We as individuals are in the best position to apply this knowledge to our use of these resources.

No centralized authority can access this knowledge. Individual persons must be presumred to have the liberty to make all decisions about the use of their resources. But this liberty must have a structure. A summary of the resulting structure of liberty is presented:

“(1) The right of several property specifies a right to acquire, possess, use, and dispose of scarce physical resources – including their own bodies. Resources may be used in any way that does not physically interfere with other persons' use and enjoyment of their resources. While most property rights are freely alienable, the right to one's person is inalienable.

“(2) The right of first possession specifies that property rights to unowned resources are acquired by being the first to establish control over them and to stake their claim

“(3) The right of freedom of contract specifies that a rightholder's consent is both necessary (freedom from contract) and sufficient (freedom to contract) to transfer alienable property rights – both during one's life and, by using a "will," upon one's death. A manifestation of assent is ordinarily necessary unless one party somehow has access to the other's subjective intent.

“(4) Violating these rights by force or fraud is unjust.

"(5) The right of restitution requires that one who violates the rights that define justice must compensate the victim of the rights violation for the harm caused by the injustice, and such compensation may be collected by force, if necessary .The principle of strict proportionality limits the amount of restitution to that which is necessary to fully compensate, but not overcompensate, the victim.

“(6) The right of self-defense permits the use of force against those who threaten to violate the rights of another. Normal self-defense is permissible when the commission of a rights violation is imminent. Extended self-defense is permissible when a person has communicated, by prior rights violations or some other prior conduct proven to a high degree of certainty, a threat to violate rights in the future. Self-defense should be proportionate to the risk posed by the threat.”
(Barnett, p 214)

From this base, Barnett moves toward a conception of a unique ordering of society. This social order requires the Liberal conception of justice and the rule of law that structures the Liberty for which many of us strive. He deals with crime, punishment, restitution, the problem of the abuse of power. We must say goodbye to the old order.

The tendency of a societal order based on the “single power principle” is to aggrandize more power than originally delegated by the people, and to use punitive means to exercise that power in ways that no individual citizen is ever permitted.

The abuse of power by monopolistic government grows and minimizes the legitimate work of protecting Liberty, to being an unstoppable near-tyranny. We must end the monopoly and introduce choice!

A Polycentric Constitutional Order

Barnett's answer to this is to introduce a non-monopolistic structure for government. Taking the concepts of the separation of powers and checks and balances to the next level, he arrives at what he calls a “Polycentric Constitutional Order.” Barnett's exposition of the weakness of the existing concepts focuses on the use that citizens find for the use of government power.

We are divided, and that is OK. A large part of the voting population support one special interest cause or another, which they advocate with personal contacts, public communications, political action groups and campaign contributions.

Politicians pick up the issues. Deals are made. Well-intentioned politicians go from good to not so good. At election time politicians are vulnerable to financial pressures and other forms of persuasion, which often lead them to tackle problems identified by their constituents. Government power often has to be increased to deal with these new problems. Government leaders sometimes precipitate crises, in response to which new powers must be delegated to the government.

The best description of the flaw in the American application of the separation of powers and the checks and balances is perhaps that posted in an article on the Internet by Jonathan Wilde at Highclearing.com, a step beyond Barnett. He found in his study of the problem that the branches of government do not effectively constrain each other based on protection of their own domains.

One branch may be permitted to increase its power inappropriately when no other branch is threatened or diminished in power. It may not only be permitted, but encouraged to do so (see the history of “log-rolling” and “back-scratching,” and the diverse Supreme Court decisions deferring to Congress rather than to the People). Restrictions on the Liberty of the People would then result, with only the weak remedy of periodic elections, which affect the court system ever so indirectly.

A polycentric ordering requires the constitutional prohibition of all monopolies and confiscations, including all services now performed by government. There would then be multiple adjudication or judge agencies, multiple law enforcement agencies, etc. And membership would not be mandatory. The powers of the agencies we subscribe to for maintaining a safe society (police), adjudication of disputes (courts) and protection from massive attacks (military) would be spread among several agencies. The powers would be separated to a much higher degree. And since we can choose among them, and change our choices, collusion among agencies against us would be extremely unlikely.

Open competition would lead to provision of their services at the lowest cost and highest quality. Payment of fees for their services would be required. Even those who have no resources with which to pay such fees, must be permitted to sell a portion of the court award they might win to another party who is willing to press their case (ever heard of contingency fees?). When this is accomplished, an ordering of society would exist where the government no longer holds a monopoly on the use of force, a kind of ordered anarchy.

The constitution can still be corrected. A few components of our constitution can be strengthened. Aside from removing some parts and correcting some contradictions, the essence would be to create a totally new way to enable it to separate the powers. End the monopoly in the functions of policing, adjudication and defense. This polycentric social order would then be a natural extension of the constitution that was begun in 1787, and would restore the liberty we have sought in this country from the beginning. This kind of social ordering would be minimal and would be beautiful.