Vertical Separation of Powers – Key to Domestic Tranquility
Listening to the presidential debates and how all of our problems would be solved reminds one of the experience of Moses after leading the children of Israel out of Egypt. He thought he could help the nearly three million Israelites solve all their problems, so he invited them to come and see him.
The problem with Moses was that he had never been taught to govern a large population except by Ruler's Law. In fact, he had been trained in Ruler's Law at Pharaoh's palace for upwards of forty years. Consequently, when Jethro watched Moses trying to handle the problems of all these people alone, he was astonished. The account says:
"And when [Jethro] saw all that he did to the people, he said, What is this thing that thou doest to the people? Why sittest thou thyself alone, and all the people stand by thee, from morning unto even?
"And Moses said unto his father-in-law ... they come unto me and I judge between one and another...."
Jethro replied to Moses:
"The thing that thou doest is not good. Thou wilt surely wear away, both thou, and this people that is with thee: for this thing is too heavy for thee: thou art not able to perform it thyself alone. Hearken now unto my voice, and I will give thee counsel." (Exodus 18:13-19)
Under Jethro's wise counsel, Moses then proceeded to divide up the families of Israel into groups of 10s, 50s, 100s, and 1000s, with each group choosing a leader. Assuming there were 600,000 families in the camp, simple calculations show there to be 78,600 new leaders, each one helping Moses share the burden of the people's problems. One can just feel the relief Moses must have experienced after transferring a huge load of problems to the many leaders at the lower levels of government. The record says:
“The hard cases they brought to Moses, but every small matter they judged themselves." (Exodus 18:26)
When Thomas Jefferson discovered this same type of governmental structure among the Anglo-Saxons, he declared it to be “the wisest and most perfect ever yet devised by the wit of man.” He said this is the kind of vertical separation of responsibility will make Americans a most happy and peaceful people.
Moses Remains the Center Our Legislative Halls
Just last month we were sitting with a number of our students in the gallery of the House of Representatives in Washington D.C. I pointed out to them the side portrait reliefs of a number of lawmakers throughout the history of the world which are positioned around the huge and impressive room. There is only one of them which is facing straight forward. In fact, it is located exactly opposite the speaker's rostrum. It is a full frontal relief of Moses. It is as though Moses is watching everyone who speaks to remind them of the beautiful system of government the Founders gave us patterned after the one he established.
Founders' Constitution Provides Vertical Separation of Powers
The purpose of the Founders was to assign to each level of government that service which it could perform the most efficiently and the most economically. There was a remarkable rationale behind the whole system. It went back to the "ancient principles." The vertical separation of powers among the states might be graphically portrayed as a pyramid with most of the power, authority, and government being at the wide bottom where the people are. As you ascend up the pyramid of government through the levels of families, communities, counties, states, and eventually the federal government, the areas of responsibility and authority get narrower and narrower, or in other words much more limited in scope. The idea was to keep the government decentralized into many strong local self-governments.
One of the Founders, James Wilson, even commented on the use of a pyramid to illustrate the structure of American government:
"A free government has often been compared to a pyramid. This allusion is made with peculiar propriety in the system before you; it is laid on the broad basis of the people; its powers gradually rise, while they are confined, in proportion as they ascend, until they end in that most permanent of all forms. When you examine all its parts, they will invariably be found to preserve that essential mark of free governments -- a chain of connection with the people.
"Such, sir, is the nature of this system of government." ( The Making of America, p. 177)
In light of the current debates about the federal government trying to solve all our problems it is helpful to review what each level of government is designed to do best.
Assign Each Level of Government That Which It Does Best
The Founders emphasized repeatedly that the design of the Constitution was to distribute the authority of governmental service to that level where a particular function could be the most efficiently administered and at the least expense. Thomas Jefferson said:
"The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the functions he is competent to. Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the state governments with the civil rights, laws, police, and administration of what concerns the state generally; the counties with the local concerns of the counties; and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations until it ends in the administration of every man's farm by himself, by placing under everyone what his own eye may superintend, that all will be done for the best."
"It is not by the consolidation or concentration of powers, but by their distribution that good government is effected. Were not this great country already divided into states, that division must be made, that each might do for itself what concerns itself directly, and what it can so much better do than a distant authority. Every state again is divided into counties, each to take care of what lies within its local bounds; each county again into townships or wards, to manage minuter details; and every ward into farms, to be governed each by its individual proprietor.... It is by this partition of cares, descending in gradation from general to particular, that the mass of human affairs may be best managed for the good and prosperity of all."
Dr. Skousen explains the duties best assigned to each level in this way:
The Founders perceived "the people" as individuals with the unalienable right to exercise their free agency in governing their own affairs so long as it did not impose on the rights of others. They felt the individual has both the right and the responsibility to solve most of the problems relating to work, play, associations, creature comforts, education, acquisition and disposition of property, and the effort needed to make a person self-sustaining. As a member of society, the individual has a right to a voice and a vote. He or she has an inherent right to enjoy all of the general privileges and prerogatives enjoyed by the other members of society.
On the second level is the family, which the Founders considered to be the most important unit of organized society. It is within the family circle that individuals tend to find greater satisfaction and self-realization than in any other segment of the community, state, or nation. The family is granted exclusive and sovereign rights which cannot be invaded by any other branch of government unless:
At the same time the family has inescapable responsibilities. Parents are responsible for the conduct of their children, the education of their children, the religious training of their children, and the responsibility of raising children to be morally competent, self-sustaining adults.
Social workers and state officials may not agree with the religious training, choice of schools, philosophy of child-rearing, or other details in the life of a family, but the doctrine of parens patriae (the right of the state to intervene) does not arise unless one or more of the above situations is present.
There are a number of things which a community of families can do better than an individual family. This is the basis for the corporate community. It has the responsibility to provide roads, schools, water, police protection, city courts to handle misdemeanors, etc. It also has the power to tax for the purpose of providing these specific services.
There are a number of activities which a group of communities can handle collectively with more efficiency than as individual communities. These include the prosecution of serious crimes or minor crimes in the rural area, the providing of a secure long-term county jail (for prisoners serving less than a year); providing county roads, bridges, and drainage systems; providing rural schools, rural police services; levying and collecting taxes based on the assessed value of property; issuing licenses for fishing and hunting as well as marriages; keeping records of deeds, births, deaths, and marriages; conducting elections, caring for the needy, and protecting public health.
The state is the sovereign entity of a specified region which can function more effectively for all of the communities, counties, and people of the state than they could do for themselves. The state has the authority to tax, regulate commerce, establish courts, define crime and prescribe punishment, establish and maintain public schools, build roads and bridges, and supervise intrastate waterways. The state can also pass laws to protect the health, safety, and morals of its people. Moral problems include such matters as liquor, gambling, drugs, and prostitution.
However, the state can only intervene where public morality is involved. Private morality is a matter between a person and his conscience. He has the private moral right to do anything he pleases so long as it does not adversely affect someone else. However, the moment his moral behavior is in violation of the quality of life set by the majority of the community, that person is in the arena of public morality and must abide by the will of the majority. In his Commentaries , Sir William Blackstone describes the distinction between private and public morals. He says:
"No matter how abandoned may be a man's principles, or how vicious his practice, provided he keeps his wickedness to himself, and does not violate public decency, he is out of the reach of human laws. But if he makes his vices public, then they become by his bad example, of pernicious effect to society, and it is the business of human laws to correct them."
The Founders set up the states so that they were a projection of the will of the people, not an auxiliary branch of the national government. In their area of assigned responsibilities, their power was plenary, sovereign, and exclusive. In a very narrow area there was joint responsibility with the federal government.
What Powers Were Delegated Exclusively to the National Government?
The powers allocated to the national government were highly important but carefully enumerated. The Constitution lists only twenty. These are the powers relating to foreign affairs, war, peace, national security, managing interstate commerce, federal taxes, naturalization, patents, bankruptcy laws, federal lands and property, handling federal finance, coining of money, fixing weights and measures, establishing post offices, setting up federal courts, and handling crimes on the high seas or violations of the law of nations.
The Founders feared that federal officials and federal agencies would try to invade or control the activities assigned to the states. They therefore included the Tenth Amendment to remind the federal government that it had no authority in any area not specifically described in the Constitution. (See The Making of America , pp. 179-182)
The best way for the Founders to ensure that many future generations of Americans enjoyed the domestic tranquility in their homes and in society was to keep government power separated and operating at the most local level possible, just as Moses had been taught. If we do not, Jefferson's prediction may come true. Said he: “…when all government shall be drawn to Washington as the center of all power, it will render powerless the checks provided…and will become as venal and oppressive as the government [of George III] from which we separated.” (MOA p. 256)
Our job is to restore and maintain the beautiful system of vertical separation of powers the Founders gave us.
Earl Taylor, Jr.
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