Sunday, January 15, 2006

Separation of Powers

When the Founding Fathers considered all of the problems associated with all forms of government, they found that the only way to protect the citizens from tyranny was to break up the normal power that governments wield.

There are three basic powers that governments have:

1. The Power to Make Laws.
2. The Power to Execute Laws.

3. The Power to Judge Laws.

The Founders set each function to different groups.

Make Laws (Legislative Branch) :
The ability to make laws was given to the Legislature. The Founders determined that just allowing one vote per state would not be totally fair to the Larger States, so they established a legislative body represented by two votes per state in the Senate and then had representatives based upon population in a state by having a House of Representatives and between them they would make the laws. Thus we have 50 States that have 100 Senators and 50 States that have 435 Representatives.

The House of Representatives is currently set at 435, but can be changed by Congress. To also address the problem of having people elected for life at the one extreme and having them elected for only one year at the other, the Founders decided to have the House seek elections every two years, while the Senate is for six years. Thus the House is said to be more responsive to the citizens while the Senate can be more stable by having longer terms.

Originally the Senate was elected by the State Legislators, which I believe was the better method because that makes it more responsive to our State needs and the State legislatures know who is doing the best job. As it is now, we elect the best-advertised person instead of the best person.

Execute Laws (Executive Branch) :
The President is charged with enforcing or executing the laws that Congress passes. He is also in charge of the Military as Commander-in-Chief. The power of the President is limited by only being able to carry out laws enacted and also by the budget when he is acting during wartime. He does not have any powers that are not spelled out in the Constitution.

The Executive Branch has been guilty in my opinion of grabbing legislative power by what is called “Executive Orders.”

Judge Laws (Judicial Branch):
The Judicial branch of our government is supposed to narrowly determine if laws made by congress are constitutional and to determine if cases brought to them are otherwise lawful. They were supposed to just vote “Yes or No”, and if the vote was “No”, then it was up to Congress to rewrite the law to make it right.

We have seen this branch of the Government be able to essentially write laws by way of instead of just saying that the law did not meet Constitutional Standards, they would issue findings that “explained how the law in question did not meet the standards” which by making an Abortion law unconstitutional and then explaining how the Constitution protected Abortion” it had the effect of writing new law by saying the Constitution had “implied protection” for abortion. This in turn allows abortion by default instead of by legislation.

Judge Alito had a quandary. There are over 100 cases that have ignored precedence and this means that Judges have been allowed to be “open minded”, but at the same time some at the hearings wanted Alito to admit that he should not have an open mind when it came to Abortion by declaring it to be “settled law.” The Constitution was never meant to be a “living document” when it came to the Judicial branch, only the Legislative branch. The Supreme Court is to narrowly apply the interpretation of the Constitution.

But, as you can see, we have the Executive and Judicial Branches making laws. This is eroding our Constitution protections from loss of freedom.

That is, in my humble opinion.


At 8:15 AM, Blogger Intellectual Insurgent said...

You are right on! I hear a lot of whining about judicial activism, but not a peep about executive activism.

At 10:22 AM, Blogger Reign of Reason said...


The "living" part of the constitution is in the hands of the congress...

Those that think the presidency has lost its teeth are those that long for autocracy – since it would be “easier”.

At 4:34 PM, Blogger Stalin the Shark said...

I'd note that the real judicial activists - as measured by the numbers of laws they invalidate - are the very people Alito most closely resembles, Scalia and Thomas.

That's why we need a Democratic Congress in 2006; this present bunch of corrupt weasels certainly isn't doing its job under that 'separation of powers' conceit.

:-), StS

At 9:47 PM, Blogger Free Agency Rules said...


I guess we will agree to disagree on who the real activists are then.



At 9:27 PM, Blogger Stalin the Shark said...

Well, here's just two examples:

- Presidential Signing Statements. These have no currency under the constitution (these are "understandings" as to the extent and interpretation of the law added by a President or in this case illegal tyrant at signing). Alito supports them, despite the fact that Article I vests the sole legislative authority in Congress.

- 4th amendment: Alito has ruled, in the strip-search of a child case, that warrants do not need to "particularly describ[e] the place to be searched, and the persons or things to be seized" if that is, essentially, inconvenient for law enforcement.

The list goes on and on and on. I'd say that's pretty activist.

:-), StS

At 8:19 AM, Blogger Free Agency Rules said...


On the case of the little girl, I think it is clear that you can make a search warrant for "all" who are on the premises at the time.

I also think that Alito was wrong in his dissent, but he was trying to make a point that the affidavit was linked to the warrant. He knew that he was in the minority and was trying to show that all the drug dealers need to do is hide the drungs somewhere that is known to be "off limits."

The girl was searched by a woman, which is often left out to make the point more sensational.



At 5:57 PM, Blogger Stalin the Shark said...


II had an altercation with some nutjob who alleged exactly that. I'll just quote her:

"Alito was not right and that is why his colleagues disagreed with him. The law says a cop can search what is in the WARRANT. That's the 4th Amendment. An affidavit is not a warrant. If I ask the court for the right to search the whole premises and the court gives me a warrant that says it is okay to search only the guy, I can't use the affidavit to justify exceeding the scope of the warrant.

In Groody, Alito said that since a reasonable cop would read the affidavit with the warrant, it was okay. The reasonable cop standard does not exist in the law and he wanted to create a new principle to justify the result. That's not a "technical" dispute -- that's the crux of the 4th Amendment."


"You are incorrect. The technical dispute is not separate from the question of constitutionality. They are two sides of the same coin. A proper warrant is what makes a search constitutional and defines the scope of the search -- it's not just a quaint technicality. You can't analyze the constitutionality of a search without first addressing the "technical" issue of what the warrant did and did not say.

You are correct that the Supreme Court has upheld instances where intent was mentioned in the affidavit but not in the warrant, but only when the warrant incorporated the affidavit by reference. In the Groody case, the cops did not incorporate the affidavit by reference and, thus, did not make it part of the warrant.

And with all of that said, how exactly is anyone supposed to know what would be considered 'off-linits' in a warrant prior to being served with such?

The 4th amendment is entirely clear and unambiguous. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.".

Alito's ruling shows that he may be many things - a licker of powerfool jackboots, for example, and an extremist activist - but he is not modest or a moderate.

I suspect that so-called "conservatives" know this, but support him just the same, because they happen to like the direction his activism takes.

:-), StS

At 5:08 PM, Blogger Free Agency Rules said...


I said I thought he was wrong just as everyone is wrong from time to time.

I support him because I believe he will narrowly intrepret the Constitution correctly more often than not.

The words Abortion and Marriage are not in the Constitution as far as I know, but some will try to say they are. I don't think Alito will.



At 5:10 PM, Blogger Free Agency Rules said...

Why did the ABA give him the highest marks?



At 8:09 AM, Blogger Stalin the Shark said...

The ABA gave him that ranking because of technical proficiency.

So why do you think Alito has never ruled against the government?

At 7:48 AM, Blogger A Jacksonian said...

The House of Representatives has given no justification since 1911 for remaining at its current size. By not increasing to give broader representation, the two party system now engineers it so that shifts in the House take dramatic changes in the populace. The House is now a place of sinecured seats and turnover is almost non-existent.

This is no longer the People's House.

It is time to remove the capability of the House to adjust its size, remove its entire staff and give a simple amendement to the Consitution setting it to the maximum size possible so that We the People may have accountable Representation in which every vote does, indeed, make a difference.

All obstacles are in a position to be removed from making the House Virtual, with a home office for each Representative to link up and vote. The consequences would be massive, but also help flush the Federal Government of many problems as bills that were complex and filled with goodies to reward obedient constituencies would die a public death. The Senate would fear reconciliation bills and would have to simplify their work. Hand a page of the tax code to each representative for redlining... I would think that after a week or two of that, a full and flat tax would result for everyone and every business. Ditto Federal Regulations.

1:30,000 for a People's House. Using the Judiciary to ensure fairness is a last-gasp effort. The fairness should *start* at the beginning, not added on at the end.

Return Our House to We the People. And end this rule by Party elites sitting on sinecured lands as Royalty. And make Representatives have to actually *work* for a living and not have staff flack the Citizenry.

Difficult? Yes. This is a Republic and We expect hard work in keeping it one of Free People.

Impossible? No. The technology for communication and internetworking is already available. Representatives will figure it out on their own and coalesce into smaller and more common groupings of similar outlook and viewpoints. And debates and viewpoints can be done entirely via virtual technologies and search engines.

I am all for Fair Judges and Fairly administered Justice.

But that fairness needs start at the beginning where it is no longer present.


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