On The Relationship between Power and Freedom - by Thomas R. Cuba
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On The Relationship between Power and Freedom - by Thomas R. Cuba published by The 1st Amender
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Posted on 2019-01-02
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As a preface, this article is not written by me. But merely from a person who is a part of the Libertarian Party in my area. He, among the others, are much more skilled and knowledgeable in politics than I am. And that is saying something. I was handed a pamphlet by Thomas that would explain what is the relationship of Power and Freedom, the constitution, and purpose of the separation of powers. This pamphlet was so profound and it made me realize that people need to know about it. With that being said, Thomas R. Cuba has given me permission to immortalize the wise words on this site. I want to also provide, at the request of the author, a link to his Nook version of this as well as his Amazon page where the text can be purchased.
Without further ado, Thomas R. Cuba's: On The Relationship between Power and Freedom.
In a pure and utopian world, each person would have complete and absolute power to do whatever he wished. There would be no need for government or laws. People would just get along. But I shouldn’t start at the end, so let’s go back to the beginning.
Consider the relationship between Power and Freedom. When power is housed in one person, that power is exercised over all other persons and individual freedom is minimized. Objectors will say that even in the most oppressive societies, some personal freedoms remain. While true, the fact that they remain is through the exercise, or lack thereof, of the power of the person in charge. The freedoms allowed can be eliminated instantly.
This is the situation in which the colonists found themselves in 1772. The King held all the power and he could allow or disallow any freedom he chose at any time. He had the power to make crimes of things which had previously not been crimes and to hold people accountable for actions which were perfectly legal at the time they occurred. The most salient and explicit example of such power lies in the ownership of land. The King owned all the land. In a good mood, he would often bestow title to land on a good and faithful servant such as a governor, knight or warrior. If, however, the servant subsequently displeased the King, the land could be taken back. In fact the gift was superficial at best. Similarly, if the King admired your horse, it easily became his horse, and so on.
The concentration of power in the King was at the forefront of Madison’s mind as he wrote the Constitution. The thoughts are first stated in the Declaration of Independence, but are laid as a foundation for future freedom in the Constitution. The challenge was to create a system in which no one person could acquire all the power, but that the government as a whole would still have enough power to operate and be effective.
Most people will recognize the three branches of government as the main vehicle for the “separation of powers.” The common, but shallow, understanding is that the separation is limited to this division into the three branches of government. That view is, however, so simple and restricted that it conveys an entirely incomplete understanding of how power and freedom interact.
Let’s take a closer look at how Madison broke up the power of the King. First, of course, there is the creation of the Legislative, Administrative, and Judicial branches. But within that division are many more.
Within the legislative branch there are two forums; together called “Congress.” To make law, both groups of men had to agree. Within each, there were several men, again making passage of law more difficult and serving to give each man a small amount of power even though each house itself had substantial, yet still limited power.
To further distribute power, the Congress, even though already bicameral, was arranged so that each house derived its power from a different source. The Representatives were to be chosen by popular vote of the people within their geographic area while the Senators were selected by the legislatures of the State itself. In this way, even the method of selection served to distribute power, for one man was selected by the people while the other was selected by a secondary source of distributed power, the state legislature. The Representative was charged with representing the individual while the Senator was charged with representing the state. This distributive measure was destroyed by the 17th Amendment making both houses equal with the exception of the length of the term of office. The 17th Amendment, therefore, served counter to the philosophy of the distribution of power.
Power was further diluted by having multiple representatives. The two senators would often disagree and the several representatives from each state would have even more far flung opinions. At least that was the plan.
Should both of these houses, exercising decisions rooted in different origins (people and state), agree on a particular measure (a bill), it must still be signed by the Administrative representative, the President. The veto power itself is not absolute, for the Congress was provided a means to overturn a veto. A less emphatic, but still effective mechanism is the “signing statement.” In attaching a signing statement to a bill he signs, the President informs Congress of his interpretation of the law as passed and advises Congress on his intentions regarding its enforcement and implementation. Congress has the authority to reject such a statement and correct the Presidential interpretation, but to my knowledge it never has.
Even after a bill has been sifted through all this distributed power, the courts still retain the authority to vacate all or part of the measure and potentially send it back to Congress. Distributed within the Courts, are even more levels of authority serving to even further distribute power away from individual whimsy.
Delving a bit deeper into the original intent of the Senate and the fact that each state was a sovereign and independent nation at the time of the adoption of the Constitution, we also can recognize that the concept of statehood and state’s rights carries with it a distributive feature. Each state, while required to have a republican government, is unique and as individual as the people within it. The differences are reflected in the Senators, thus assuring that only laws suited to all, or at least most, of the states would be enacted.
What about the people who run the government? Even though the classic separation of powers puts the Administration in a different branch of government than the Legislative, the Senate has the power to affirm Presidential appointments to the higher offices within his administration. The Senate also affirms appointments to the Supreme Court. The House has no say in these matters, further distributing power. Treaties with other nations are also ratified by the Senate. In case you wonder why, refer back to the point that each State was an independent Nation. A treaty would be binding on the States, so they wanted the ability to approve treaties at the Federal level. To further dilute power, if the treaty required any spending, the House of Representatives would need to authorize it in the budget. So while the House does not affirm a treaty, it has the ability to impede its implementation.
In fact, all spending must arise in the House, not the Senate. Sure the President and the Senate can submit suggestions, but it is up to the House to get things moving.
What about getting rid of a President? In an impeachment, the House has the power to impeach, or charge the President with wrongdoing, but the trial is held in the Senate. The Chief Justice presides. In this way, each has a distinct yet limited role and all must agree before a President is removed.
Consider the distribution of power within the very top levels of the Administrative Branch. The original election process did not have the President and Vice President on the same ticket. The winner was the President and the Vice Presidency went to second place. This assured debate even at the uppermost level of the Administration.
There are numerous other places where power is distributed. The greatest of these is in Private Property Ownership which prohibits the King (or the government) from owning it all. Further, for the Federal Government to purchase property within a State, even on the open market, the State legislature must approve the sale. Today, one must wonder whether control through regulation amounts to de facto ownership and serves to consolidate power once again.
The Tenth Amendment and Article I, Section 8 list both powers of the government and the specific absence of power (Constitutional Rights). It further states that the list is partial, most powers being held by the State and the Individual Person.
The First Amendment assures each citizen the right to voice his opinion freely. Such a provision assures debate and furthers the distribution of power through the avoidance of repression.
The Second Amendment goes even further. Originally designed to assure that the people would always be more heavily armed than the government, the aforesaid specific intent can no longer be met. Still, the general intent to distribute power is nonetheless salient to this paper.
Amendments Three, Four, Five, Six, Seven, and Eight do not serve to distribute power but are in place to protect individuals from whatever powers are left undispersed.
Article IV also has several statements which limit or distribute power. For example, the President cannot call out the National Guard without authorization from the State. This provision has been violated (Little Rock, Ark, 1957, Alabama 1965). The point on authorization is arguable since the Mayor (Little Rock) and the Attorney General (Alabama) did indeed ask the President to act, on the grounds that the actions of the Governors were improper.
Finally, there is the process of amending the Constitution. An amendment takes a very complex route through all kinds of power centers (legislatures) with distributed power bases (bicameral state government etc). Amending the Constitution was made difficult to protect it from whimsy.
In sum, I casually count 47 mechanisms to distribute power among the members of the new government, and those are only the ones I mentioned. There are more.
While the distribution of power was designed to prevent a future king, current events clearly indicate a return to concentrations of power in today’s Power Centers.
So what happened?
Over the years people have found ways to consolidate power into Power Centers despite the intentions of the Constitution. Taken individually the actions seem innocuous. Taken together, they become a real and now present danger to our Constitution and our individual freedom. In the following paragraphs, steps to consolidate power are addressed in no particular order.
The 17th Amendment was a big step in the consolidation of power. Putting the President and Vice President on the same ballot as a team served to consolidate power. Perhaps here it might be worth noting that not much needs to occur to consolidate power beyond eliminating or minimizing the debate.
Only Congress shall have the power to declare war on another nation, according to the Constitution. In practice, with some clever word-smithing, several Presidents have entered into armed conflict without such a declaration. Yet, “A rose by any other name” still results in armed conflict.
The creation of the Department of Homeland security consolidated power and was not necessary. An effective President could have ordered the cooperation with a simple executive order or even a memorandum to his department heads.
In fact virtually all of the Federal Departments serve to consolidate power in the Federal Government and remove it from the States. There are Fifteen Federal Departments with untold subordinate agencies. These are the Department of Agriculture (USDA), Department of Commerce (DOC), Department of Defense (DOD), Department of Education (ED), Department of Energy (DOE), Department of Health and Human Services (HHS), Department of Homeland Security (DHS), Department of Housing and Urban Development (HUD), Department of Justice (DOJ), Department of Labor (DOL), Department of State (DOS), Department of the Interior (DOI), Department of the Treasury, Department of Transportation (DOT), Department of Veterans Affairs (VA).
Of these fifteen, how many are authorized in the Constitution?
The Federal Government has also created what are known as Independent Agencies and Government Corporations. The Federal Website USA.gov defines these Sixty-Nine agencies: “Independent establishments are created by Congress to address concerns that go beyond the scope of ordinary legislation. These agencies are responsible for keeping the government and economy running smoothly. - USA.gov. One can only wonder whether actions, let alone entire agencies, which “go beyond the scope of ordinary legislation” can truly be deemed to be consistent with the intent of the Constitution.
Within these agencies, the consolidation of power is further removed one more step from the source of authorization going “beyond the scope of ordinary legislation.” The power within these agencies is derived from what is known as “Rulemaking.” Rules are contained in the Code of Federal Regulations or the CFR and are adopted independently by the agency and without consent of Congress. Congress can override a regulation, but that seldom happens. The CFR exists because, according to Congress, the administration of the laws they pass is too cumbersome for them to manage on their own. Taking a deeper look at the relationship among the lawmaker, the law, the agency, the rule, and the industry ruled, we realize that the very existence of a regulation serves to consolidate power, for the regulation eliminates or restricts the choices of the regulated.
Still, the directors of these Agencies are to be appointed by the President and affirmed by the Senate, so what could go wrong? Two events have served to consolidate power within the Office of the President. Both are within the reach of being corrected by Congress, but as yet, Congress has been unwilling to disperse the powers being accumulated.
The first event is the recess appointment. It seems that there is a provision that a President may appoint a Director without consent of the Senate if the Senate is in recess.
The recess appointment maneuver, is however, a minor feint when compared to the advent of the “Czar” or “Special Advisor to the President.” The dynamics behind a Czar appointment is that the appointment is not authorized by any statute and not affirmed by the Senate. What is created is an office with the power of Presidential influence and little to no accountability. The use of such an advisor is often criticized as being redundant with questions like, “Why do we need a Drug Czar when we have the Drug Enforcement Administration (DEA)?” In other situations, such as the appointment of the Baseball Czar in 1919, the President used his administrative power to become involved in issues which ought to have been a private matter.
The appointment of Czars could be reversed by Congress in the same way as could a rule in the CFR, but Congress has failed to do so. In the same manner, Executive Orders issued by the President are often used to initiate activities which were not approved by Congress. The most recent and extensive example weaves its way through the Kyoto Protocol. The Kyoto treaty was not affirmed by the Senate and yet many of the initiatives within the Protocol are being implemented through existing Federal Agencies through the power of the Executive Order. Alarmingly, this particular tactic has been used by more than one President to implement initiatives generated by the United Nations which failed to meet the approval of the US Senate. Presidents, past and present, have used the Executive Order to circumvent or even violate the intentions of Congress. The use, or rather misuse, of the Executive Order is a means to aggregate power within the Presidency but the failure of Congress to react is just as contributory to the aggregation of power as is the act itself.
Congress itself has served to accumulate power through accumulating wealth using such mechanisms as exempting themselves from trading on stocks using their knowledge obtained as a legislator.
Power has also centralized outside the halls of government. These external Power Centers derive their own power from either money or votes which they can deliver to a candidate and will often have their own power bolstered by special favors from Congress. Among these are Unions, the Media, Banks, numerous other industries, certain non-profit organizations, and last but certainly not least, the Political Party.
Examined independently, the Political Party has none of the safeguards to the accumulation of power that the Constitution gave to the government. The party, however, holds a great deal of power over who is nominated and who is elected and how that person acts or votes once in office. Any office-holder is subject to this pressure.
The result is that the Power Centers evolving outside the government are serving to assist in consolidating Power Centers within the government. The government, along with the election process, is devolving into a spectator sport consisting of an ongoing series of games between only two contestants (the major Parties). As the sport evolves, the “players” write new rules designed more to enhance the playing of the game, and less to preserve the responsiveness of the government to the governed. When that struggle ends, when one “team” wins time after time, we will lose our Republic and be subjects of an as yet undefined oligarchy.
In some part, the creation of Power Centers is of our own making. We demand, for example, that a President make promises he cannot keep, for the President does not vote on legislation. Because we demand them, the candidates make them, then use our demand to manipulate Congress. If we were the informed electorate that Madison advised us to be, we would pay much more attention to electing our Representatives than our President.
In concluding these thoughts, it is necessary to point out that these events are probably not part of some grand conspiracy to take down the Republic. It is much more likely that these conditions are brought about by a combination of inattentive citizens, legislators undereducated in the history of the Constitution, and the supremacy of expediency over protocol. The latter refers to the prevalent human condition of “taking the easy way out.” When faced with a problem, as legislators are, the most expedient options have often taken precedence over the Constitutionally appropriate options.
These conditions exist because, as post revolutionary war generations passed and history lessons prioritized memorization over understanding, the memory of life lived in a Monarchy faded.
So what about that utopian thing? The flaw in a utopian society is human frailty. If everyone espoused and actually followed the same moral code, and that code supported a utopian concept, then utopia would work. Without it, the same societal structure just leads to anarchy; And anarchy leads to monarchy because eventually the big dog will arrive and seize power. All of it.
The conclusion of this paper is that power and freedom exist along a continuum from complete Personal Power vested in each individual (dispersed) at one end, through a central node of Power Centers, to power consolidated in a Monarch or Oligarchy at the other end. In the absence of a universally held moral code which would guide the use of Personal Power, some government is necessary. But a complete moral code embodied in statute would eliminate Personal Power, or freedom of choice, entirely. The Constitution serves to define a place where Personal Power is maximized to the limits of the moral code. Unfortunately, the degradation of the moral code has led to behavioral mandates (laws and regulations) serving to dilute Personal Power on one hand and to the accumulation of power by government on the other. The resulting accumulated Personal Power being exercised by those in authority is frequently motivated by self interest and in the absence of a Constitutional Conscience has led to an erosion of Individual Freedom.
And now, in order to Repair America, it is time to Redistribute Power.
© Copyright Thomas R. Cuba, 2012. All Rights Reserved.
 This exemption is expected to be repealed, but remains troubling because it existed in the first place.
“A well-instructed people alone can be a permanently free people” - - James Madison
Sources: Thomas R. Cuba
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