Opposite Day: The fallacy of separation of powers

Since I’m the member of the League who is furthest ahead in the time zones, it falls to me to welcome you to the League of Ordinary Gentlemen’s inaugural opposite day, in which we shall attempt to sincerely argue for a position we are opposed to.

So, to kick things off, let me introduce you to my more-evil twin Hamish, so he can give you his views on separation of powers:

The League has been debating the merits of democracy for months now, with opinions ranging from support to total scepticism.  James, as is his wont tends to float around in the middle somewhere, knowing too much about how people think to trust democracy, but unable to think up a superior alternative.  But this isn’t about democracy as such, but rather one particular aspect of it – separation of powers.

The intuition behind separation of powers is appealing enough – people can’t be trusted with power, so you split the power up across a couple of groups and then have each group act to restrain the other.  Every form of liberal government uses separation of powers in some way, but standing above all of them is the United States, which doesn’t even let its executive declare war.  The founding fathers ensured the President couldn’t do much of anything without he cooperation of Congress, and vice versa.  And standing over both of them is the Supreme Court, holding a copy of the constitution like it was a rolled-up newspaper, ready to rap both of the other branches on the nose at the first sign of ultra vires actions.

Nice idea – a pity it doesn’t work.  The legislative check on war powers has been nothing more than a technicality since WWII, and when Obama wanted to act in Libya he didn’t even bother going though the formality of asking congress to rubber stamp his actions.  And congress did nothing.  So much for mutual checks on ambition.

And as for the Supreme Court, their performance has been less than stellar.  They may be technically independent, but they are still appointed by politicians, no judge who seriously wanted to restrain the government would be nominated or confirmed.  No, the primary qualification for being a Supreme Court Justice is a gift for sophistry – so as to rationalise the Constitutionality of anything the elected branches want to do.  I’m not saying the Supreme Court is useless, just mostly useless – the only amendment that hasn’t been at least partially undermined is the 3rd and that’s because building military bases is more of a vote winner than billeting soldiers in private homes.

And so with each passing year the executive takes power from congress, congress takes power from the states and the states take power form the individual.  For good or ill this is clearly not what the Founding Fathers had in mind.  And why hasn’t it worked?  Because the whole system relies on the vigilance of an informed voter and the average voter can’t tell you how many senators there are, much less who should be blamed when something bad happens. 

At the New Zealand Economists Association conference earlier this year I heard a very interesting argument from Canterbury University lecturer Eric Crampton.  He pointed out that given the abundant research showing that voters lacked the knowledge and rationality to identify good policy the very best you could expect from voters is that they vote on a “is the country going in the right direction?” basis.  If things are going well, then fine.  If not – throw the bums out.  But how can you throw the bums out if you don’t know which bums are in charge?  Look at the Debt Ceiling Crisis – The President and Congress blamed each other and everyone believed whoever was ideologically convenient.  And when that doesn’t work there’s always the spectre of Judicial Activism is frighten the public with.  The multiple centres of power create multiple centres of responsibility.  This actually makes government less accountable to the people, not more.

In a world where voters actually knew what they were doing separation of powers might make sense, but we don’t live in that world and barring extensive cognitive enhancement of the general population we never will.  So I argue that we need to go in the other direction, turn the bug of power accumulation into a feature.  Get rid of legislative bodies and judicial review.  Just have one elected office – President, Chancellor or just call them the All-Tsar.  This person has total legal authority for their term of office, which means they can’t wriggle out of blame if things go badly.  With unitary power comes unitary responsibility.  You may argue that government is too big a job for one person, and that’s true.  But the elected office-holder will still be able to appoint as many assistants as they need, but the responsibility will still sit with the one elected official. 

This is far from a perfect system, but at leas tit will finally be true that the buck stops there.  We can only work with the world we have, not the one we want and for this world separation of powers is worse than useless as a check on government abuse.

I’m sure Hamish will be lurking around if you want to ask him questions.