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Separation of Powers

As hopefully every American schoolboy and schoolgirl knows by the time they finish the eighth grade, though the writers of the United States Constitution had  respect  for  the value of the individual, they were also fully aware of the individual's capability for evil and tyranny and its weaknesses. Being fully aware both intellectually and from practical experience that power corrupts and absolute power corrupts absolutely, they created a government system embodying a separation of powers in three branches of government: the executive, legislative, and judicial. The emphasis was not on changing human nature or idealizing it into something that it is not, but in establishing procedures and safeguards that would not  allow  human nature's weaknesses to destroy it while  allowing   its strengths to work and foster better government. As we go into the 21st Century, this separation of powers is nominal only and a joke. Judges are essentially legislators in which the law is whatever a judge on any particular day with any particular case decides the law is. They are appointed because of their political beliefs to enforce those political beliefs upon society through the "magic" of laws with the only significant difference between them and the legislature and the executive is that they wear black robes to work and need life tenure to do their legislating because they do not have the courage to be accountable for their work. The judicial branch along with the executive and legislature branches of government are merely mouthpieces for whatever lobbying group or bureaucrat to whom they owe the most and are  incapable of any independent political or philosophical thought. No one in academia, the wealthy, nor the government has any incentive to change this situation since their power derives from the status quo, and, unfortunately, they are the only ones with the power to change it. The system is at least 100 years behind the times. These are a few suggestions for "procedures and safeguards" that would bring the system up to date.

First, separation of powers should be brought back in modern day form: no one who is or has been a member of one of the branches of government is allowed to become a member of another branch of government. The main goal here is to prevent the ridiculous situation in which 90% of the executive, legislative, and judicial authority is held by lawyers. This situation exists because of a circular chain of causation derived from the modern day situation in which the law has become the arbitrator and mediator of all disputes in our society. People cannot solve problems among themselves without a law, the lawyers create resolutions by laws that they enforce, these cause more problems, creating a need for more laws, the cycle begins anew. Though the adverse effect on society of such a situation is often discussed, the adverse effect this situation has on the legal system is completely ignored. The legal system is supposed to be an independent branch of government with its own principles. Since its powers-that-be, the judges, are just political hacks for the politicians that appointed them, sharing the same desires and goal of maintaining their power, there is no independent branch and especially no independent thought. If in fact the judicial branch had to rely on its own principles and practical reality for survival against what may sometimes be adverse principles by non-lawyers and other independent sources of thought and power in another branch of government that it cannot rely upon to save its sorry butt, it would either have to become and stay up-to-date or be gone. Given the need to maintain power once one is given it, I suggest that it would stay up-to-date or, if not, its elimination and replacement by the competing powers would be more than warranted. At the same time, if the other branches of government had a judicial branch that was really independent of whatever the latest political fad that they needed it to enforce, they also may have to start thinking in terms of political ideals again and not in marketable fads.

Second, the adversarial system of litigation and trial work should be eliminated in all cases except felonies and civil actions against the government. To the extent the adversarial system developed in earlier centuries to resolve such problems as whether farmer A's cows trespassed into farmer B's garden still exists it adds nothing but complexity to an already complex society with its sole purpose being to allow the large firms to make allot of money in discovery. Its advantages exist only for the wealthy who can afford the expense that it entails. For the average party forced into the judicial system, the adversarial system exists in name only. As summarized in the previous essay submitted by another writer to this web page, see Laws as Magic above, it's advantages are not available to the powerless for whom it is suppose to be a refuge. Those attorneys that are really adversaries for the powerless risk their economic, physical, and mental well-being. Most attorneys, even the very affluent who build a reputation as good attorneys by proper marketing techniques and not by legal work, do not have the ability nor training to engage in adversarial techniques in our complex society and those that do are more often than not persecuted by the judges who are themselves completely incapable of courageous advocacy and by the self-marketed lawyers out of jealousy to the point where eventually their skill and ability is negated or turned into sour cynicism. Eliminate it! Make the judicial system be consistent with itself and have it solve problems efficiently and economically. At the same time, such a procedural change should work so that the judicial branch becomes self-sufficient for its operating funds and for enforcement of its judgments. No more excuse that the judicial branch must be cowards because it is dependent on the money and respect of others! In the cases of felonies and actions against the government, the final defense to tyranny, the adversarial system should be fine-tuned so that the best adversaries practice there and do so with pride and respect and not with apprehension as to what their courage would bring upon them.

Third, no branch of government should be allowed to be its own "ethicist." In the 1990's, ethics has become the first refuge of the scoundrel. Every politician or attorney no matter how dishonest or crooked they may be themselves accuses his adversary of unethical conduct whenever it is convenient to do so. Thus turning ethics, a noble philosophical study over two thousand years old dating to Plato's Republic and the very foundation of Western Civilization, to a joke. As anyone who has taken even a freshman introductory course into philosophical ethics knows, it requires skills and formal logical thought that are not easy nor intuitive. Both Congress and the legal profession have "ethics" committees that supposedly judge and govern the ethics of its members. These farce committees all have one thing in common: their members have no training, no education, nor any  formal study in ethics. The committees therefore become purely another political tool by which the powers in control attack those not in control. In the case of state bars, the professional ethical committees are completely worthless except for ensuring that the desires of the large firms become the standards for the farcical "rules of professional conduct." Ethics committees should be run by independent, educated philosophers trained in formal ethical thought.

What chance is there for any of the above procedures to become active in the next hundred years: zero to none. The feudal system hung around 500 years after its usefulness had vanished as our own revolutionary war proves. Our present government is a power that will maintain itself at all cost regardless of how antiquated it has become. Regardless of a good attempt by our Founding Fathers, they still did not create a system that would keep pace with the times and not allow power to be the dominating motive for activity. Once the above reforms are initiated, they will probably be antiquated already and only become another source of inefficient power for some undeserving few. Which leads me to my fourth reform, reinstitute the Old Testament "jubilee" year. Every fifty years, all laws, government authority, and legal power is abrogated and made null and void unless reinstituted by the people. It is not worth voting anymore because there is nothing to vote upon that is meaningful: one politician is the same as the rest, policy will be decided by the most influential lobbying group and not by any vote and definitely not by my vote. At least, once every fifty years give me something substantive to vote upon.