Good Texas Common Sense
A series of articles concerning what the new government of the Republic of Texas should be and do, what the Constitution for the Republic of Texas should be and say, and the philosophical (common sense) reasons behind these statements.
Copyright at Common Law 1997, Donald Dale Henson, sui juris. This article may be reproduced and distributed using any media as long as the article, the author's name, and this copyright notice remain together and unchanged.
Article 9
The Myth of Separation of Powers
by Donald
Dale Henson, sui juris
I have heard it stated that a separation of government power into three equal but separate departments is the only way to build a stable republican form of government. But is this true? What is the basis for this statement? How did this concept come about in the first place?
First a little history. About a thousand years ago and after about a thousand years of a relatively stable society built on 'local custom' (which most people are referring to when they say 'common law'), the inevitable quest for power began. At first, it was merely the normal conflicts between the 'landed gentry' but occasionally two or more of the landed gentry would combine forces to defeat another. Some of these loose temporary alliances became semi-permanent with one of the landed gentry ending up in charge. These larger groups then also tended to ally with each other against other alliances and eventually one of the groups became large enough and permanent enough to be considered a 'country' and the leader of this group became known as the 'king'.
Eventually, the king became powerful enough that he started to consider himself a god, or at least that his powers were granted him by God, and after some time the king's excessess culminated in the Magna Carta which made the king agree that he was limited in his power by the rights of the landed gentry.
(I apologize for the length of the part below discussing the origins of the judicial class but it is essential to your understanding of the principle of separation of powers.)
Meanwhile, back at the ranch, the peasants had been left to their own devices when it came to resolving conflicts amongst themselves. They eventually developed a rough sort of common law and certain people came to be depended upon to call these 'courts' into session, make sure the rules were followed, and to made informed decisions about who was right and who was wrong. These people were called by various names but today we would call them 'judges'.
Now of course the landed gentry also needed some way to resolve conflicts amongst themselves as going to war over every petty disagreement was a drain on everyone's resources. Various kinds of courts were developed to resolve differences in a peaceful manner and a class of people known as 'serjeants' came to be whose purpose was to call these courts into session, make sure the rules were followed, and to make informed decisions about who was right and who was wrong. Again, today we would call these people 'judges'. And, it turns out, many of the serjeants were called into service after being a 'judge' in a peasants court.
The king had his own courts, of course, and he gradually extended the authority of his courts intending to replace all the other courts. In most cases, the judges in the king's courts were called into service after being a serjeant.
As a result of all these courts, a separate class came into being. This class, which I shall call the judicial class, was loyal to it's own customs regardless of whether their origins were peasant or gentry. Also, the children of the judicial class tended to stay in the judicial class so it was in the interests of the judicial class and their children to keep their own loyalties, customs, and privileges.
So now we have three separate and distinct classes of people in the English society at the time of the colonization of America by England. First we have the landed gentry with the most powerful of these being the king. Second we have the judicial class which considered itself as not peasant and not gentry. And last we have the peasants, those without property and without any heritage of nobility, those whom today we would call the 'common man'.
So how does all this relate to the separation of powers? Each of the three classes had their own vested interests to watch out for.
The king and the landed gentry were the 'powers that be' which meant that they owned or controlled the vast majority of wealth in the nation. They intended to keep it that way and pass this inheritance down to their children. While the king continued to strive to increase his power, and thus his wealth, his stiving was contained by the power of the landed gentry and eventually came to be expressed in the House of Lords. The House of Lords evolved into the law-making body of England and a court of last resort, a kind of supreme court that would make final judgements that lower courts were unable or unwilling to make. The king's part of this deal was to administer and enforce the laws that he or the House of Lords created but as constrained by the House of Lords.
The judicial class came to be the arbiters of the king's law as well as the common law (local custom). While they in most cases were not landed gentry, their separateness and their loyalty to their class gave them something to be proud of that they wished to pass on to their children in much the same manner as the king and the landed gentry. But even they were constrained by the House of Lords since that body remained the court of last resort.
Finally, we have the peasants, the common man, the masses, and any number of other names that have been used to describe that large and largely invisible mass of people that have no other class. But the very fact that there are so many of them makes them a powerful class. In the English system of government, the voice of the peasants began to be heard in the House of Lords by way of the House of Commons.
This then was the situation in England when the colonies began having thoughts of independence. They liked the underlying system of English government but were not happy with the way it was being applied by the king. (Sounds kind of familiar, doesn't it?) So how did the founding fathers translate this into American terms?
The founding fathers created a king, although they called him a president and made provisions for him to be replaced via periodic elections rather than making the office heriditary. This office was to administer and execute the laws of the land.
The founding fathers created a body to represent the landed class and to serve as a constraint on the actions of the president (king). This body was called the senate. But wait, you say. The senate was to represent the various nation-states in the union, not a class of people. However, if you look at most of the nations that made up the original union of states, you will find that the governments of those nations were firmly under the control of citizens who owned property, i.e., the landed class. The senate was also intended to act as a check on the body created to represent the common man (peasants) since the senate, representing the landed class, would be unlikely to approve anything that would increase their liability to funding the government.
The founding fathers also created a judicial class, the court system, whose function was to arbitrate differences amongst individuals and to act as a check on the other departments of government by refusing to convict anyone of breaking a law they thought was unconstitutional.
So what happened? Why didn't this system work? It sure sounds good in theory. So good, in fact, that most people say we don't need to change the system, we just need to change the way it is implemented. So why did it fall apart on us? There are several reasons. Here are some of the more important ones.
The vast majority of those people who colonized America were peasants who quickly became property owners. These people became similar to the landed gentry in that they now had something they wanted to protect and pass on to their children. In essence, the peasant class largely disappeared and the nobility disappeared shortly after the American Revolution leaving a single class of people firmly in charge.
The president was not nearly as powerful as the king and, in fact, tended to come from the property owners and return to that class after a short time. Thus, there was no big incentive to maintain the power of the president and pass it on to his children.
The House of Representatives, intended to represent the common man (peasants) actually represented the property owners since in most nation states you had to own property in order to vote.
The judiciary was the only class that had any tenure and that was not heriditary (could not be passed on to children) and in most of the lower courts was an elective office. Again, most of the people elected to the lower court offices were property owners.
Notice that instead of three separate and distinct classes of people each with their own loyalties and with strong incentives to maintain their powers and privileges so they can be passed down to descendants, we have a single class of property owners doing everything. All the departments of government are pointed in the same direction. There is no balancing of the power amongst three separate classes.
However, this inherently unbalanced structure remained stable for almost a hundred years due mainly to the fact that the class of people that was running the government was essentially the same class as most of the citizens of the nation. This changed when the society began to industrialize, banks figured out a way to create money out of thin air, and socialism came onto the scene.
As the industrial age started gaining momentum, more and more people left the family farm to earn the big money promised by the factories in the cities. This created a landless class, a kind of recreated peasantry, if you will, that had no great incentive to preserve the rights to property since they essentially had none.
Banks discovered the fraud of interest on money and began to use this fraud to gain control over the assets of those who still owned property. This increased the number of landless people still more.
The theory of socialism promised a life of ease for all with none of the attendent pain of actually earning the wealth. The landless class thought it was a great idea to take part of the property of those who still owned some and pass it around to everyone. (And most of them still do.)
Now the unbalanced structure of government began to unravel as the representatives no longer represented people who owned property but instead represented those who wanted it.
During the past 130 years or so, we have seen the large property-owning class slowly dissolve until now some 2 percent of the people own or control some 90 percent of the wealth in the US. Most of us are now peasants once again since almost no one owns property anymore. (Even those who think they do only hold permission from the real owner, government, to use the property temporarily.) The government-run public school system has dulled everyone's senses to the point they will believe anything the government or the media tells them. Control of the government has passed into the hands of those whose only purpose is to increase their own power and wealth at the expense of anyone too stupid to stop them. The judiciary is in the control of these same people. So although we still have a government controlled by a single class of people, the class has changed from property owners to property stealers and our form of government has changed from a republic to a democracy. Rather than the three classes necessary to make a separation of powers government work, our unbalanced system has turned into a 'tyranny of the majority' as all democracies must. But the myth that separation of powers will work still holds with most people even in the face of this strong evidence to the contrary.
Is it possible to base a government on a separation and balance of powers? Yes. However, in order to form a government where the separation of powers will work, we must identify three separate and distinct classes of people each with their own loyalties and privileges and with a strong incentive to maintain these loyalties and privileges. And these loyalties and privileges must be diametrically opposed to each of the other two. Then and only then can we design a government structure based on a separation of powers. Until then, we must look for a different structure.
Does this make sense? Good Texas Common Sense?
Copyright at Common Law, West El Paso Information Network, 1997