Amid the spectacle of the Senate Judiciary Committee’s hearings on Judge Neil Gorsuch’s nomination to the U.S. Supreme Court, there emerged that rare visitor to the U.S. Capitol: some nuggets of common sense. These nuggets came from Senator Chuck Grassley of Iowa, the Chairman of the Senate Judiciary Committee, and from the Supreme Court nominee himself. They addressed that feature of our constitutional design that most powerfully preserves and protects liberty.
That feature, which limits what the government may do, is it the Bill of Rights? The late Justice Antonin Scalia, whose seat on the Court Judge Gorsuch would fill, liked to point out, “Every tin-horn dictator in the world today, every president for life, has a Bill of Rights.”
The very word “constitution” suggests not words but structure.
Designed to Separate and Check Power
As Senator Grassley observed:
The most important feature of our Constitution is the design of the document itself. It divides the limited power of government vertically, between the states and federal government. And it distributes power horizontally, between the co-equal branches.”Our constitutional bedrock is, in three words, separation of powers.
It was the French political philosopher Montesquieu, writing in the Age of Enlightenment, who was the chief proponent of the separation of powers. Montesquieu’s The Spirit of the Laws, published in 1748, “was hailed as the first systematic treatise on politics since Aristotle” and was a major influence on our system of government.
Montesquieu identified three different powers or functions of government: legislative, executive, and judicial. Significantly, he treated the judicial power “as on a par, analytically, with the other two functions of government,” detached from the upper or aristocratic chamber of the legislature, and vested largely in the ordinary courts of the land. According to Montesquieu, each of these three functions should be exercised by a separate branch or body of the government, with its own distinct personnel.
Montesquieu further maintained that there should be checks and balances through, for example, the executive’s power to veto laws and the legislature’s power to impeach executive officers. Then each of the powers in a “moderate government” could better “counterpoise the other.”
In a system with checks and balances, where governmental powers are separated on a functional basis, individual liberty might best be protected. As Senator Grassley put it, “It’s this delicate balance of power, entrusted to competing factions, that ensures the liberty of the People will endure.”
Abuse of Power
For both Montesquieu and our Founders, the danger to be protected against was the abuse that the concentration of power invites.
Montesquieu warned:
[C]onstant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. To prevent this abuse, it is necessary from the very nature of things that power should be a check to power.”Judge Gorsuch emphasized this point in weighing the legacy of, and quoting, Justice Scalia:
The genius of the American constitutional system is the dispersal of power. Once power is centralized in one person, or one part [of government], a Bill of Rights is just words on paper.”Judge Gorsuch on Our Constitutional Design
What does Judge Gorsuch himself have to say on these matters?
Here’s what he told the Senate Judiciary Committee on March 21:
On the separation of powers, it is ...the genius of the Constitution. Madison thought that the separation of powers was perhaps the most important liberty-guaranteeing device in the whole Constitution and this is a point of civics that I do think maybe is lost today: how valuable the separation of powers is. That you have an Article I: The people’s representatives make the law. . . . Article II, the President’s job, is to faithfully execute your laws. And our job, Article III, down at the bottom, is to make sure that the cases and controversies of the people are fairly decided. And if those roles were confused, and power amalgamated, the Founders worried that that would be the very definition of tyranny.Let’s welcome, then, the Honorable Neil M. Gorsuch, the next Associate Justice of the U.S. Supreme Court.
And you can see why. Judges would make pretty rotten legislators. We’re life-tenured, right? You can’t get rid of us. It only takes a couple of us to make a decision, or nine, or twelve, depending on the court. It would be a pretty poor way to run a democracy. And at the same time, with respect, legislators might not make great judges, because they’re answerable to the people. And when you come to court with a case or a controversy about past facts, you want a neutral, rigidly neutral, fair, scrupulously fair decision-maker. You want somebody who’s going to put politics aside.
So the separation of powers I don’t think has lost any of its genius over 200 years. In fact, it’s proven it.
Laura Bennett Peterson
Laura Bennett Peterson is an attorney and economist in Washington, D.C. She has worked as an associate professor of law and litigator, a White House and Treasury Department economist, and a Hoover Institution public affairs fellow and visiting scholar.
This article was originally published on FEE.org. Read the original article.
His target? The House Freedom Caucus, a group of conservative members that has borne the brunt of media shaming and ire from its colleagues for its opposition to the American Health Care Act. (It should be noted that Kinzinger is a member of the Tuesday Group, a collection of moderate Republicans, many of whom also failed to support the AHCA—a point neither Kinzinger or the New York Times seem keen on remembering.)
What, you may wonder, was the basis for the objections of the Freedom Caucus to the AHCA? What kind of impossible demands was it making on the rest of the GOP?
If you ask the members of the Freedom Caucus, they’ll tell you. They were simply trying to keep their promise to voters to repeal Obamcare. And the AHCA, contrary to Kinzinger’s claims, did not repeal Obamacare.
Aside from improperly characterizing the AHCA as repeal, the rest of Kinzinger’s claims are simply baseless and petty—not to mention thoroughly unhelpful to a party that must work together to repeal Obamacare, or otherwise risk its hard-won majority.
Specifically, Kinzinger takes issue with the negotiating tactics of the Freedom Caucus, comparing it to Lucy in the cartoon “Peanuts”—always holding the football out to be kicked, and at the last minute, yanking it back.
Unfortunately, the facts don’t bear that out.
The Freedom Caucus was clear from the beginning—it would only support a bill that fully repealed Obamacare. The AHCA never did that, and despite the changes made by leadership (which were done only after the urging of President Donald Trump), it still did not accomplish full repeal.
Without repeal of Obamacare’s crushing regulations, the fundamental architecture of the law remained in place. Consider that these regulations are responsible for 68 percent of the average cost increases of health insurance across the nation—and up to 92 percent in cost increases for younger Americans.
You cannot call a bill “full repeal” if it doesn’t address these mammoth cost drivers. And, like it or not, full repeal is what Republicans promised their voters. (While Kinzinger and others may say that the regulations “couldn’t be repealed” using the reconciliation process, that, too, is simply untrue. James Wallner of The Heritage Foundation has an entire paper explaining why.)
These problems were obvious to more than just the Freedom Caucus. Conservatives across the spectrum widely panned the bill, and credited the Freedom Caucus for trying to get more. Avik Roy, a commentator at Forbes, even called the group’s requests “surprisingly pragmatic.”
It seems the wider audience understood what Kinzinger does not—Obamacare is a policy failure. The House Republicans’ approach of repairing and replacing it didn’t do nearly enough. The law has to go. Only then can true reform of the health care marketplace take shape.
The tackiest element of Kinzinger’s argument, however, is simply its breathtaking lack of self-awareness. Kinzinger and his Tuesday Group members voted more than 50 times to fully repeal Obamacare—when they knew it wouldn’t pass.
But when the Freedom Caucus pushed for the opportunity for repeal to become real—when push came to the literal shove—these guys willingly just went limp and fell off the cliff.
That’s not something Kinzinger should be proud of, because it’s not something his voters elected him to do.
Fortunately, there are members in the House that do understand this. Reps. Mark Meadows, Jim Jordan, and the members of the Freedom Caucus should be applauded for their willingness to go to the mat to defend the promises they made. If he stops naming and shaming long enough, maybe Kinzinger could learn a thing or two.