[Vision2020] Balance of Powers

[David M. Budge]

lfalen wrote:

The legislature  does not rule. The Legislature, the Executive branch and the Judicial System are suppose to be in balance."

This is a primary misconception of government.  The founders set up the "three legged stool" to put in place a system of checks and balances on the powers of each branch.  We must, however, look at the functions of each.

The Executive is charged with carrying out the law and its administration.  If the executive fails or does something to which the Congress objects, the congress can change the laws to remedy the president's performance. The Executive has very little power over the Congress.

The Judicial, has the power to determine what laws are constitutional.  If it rejects a law, Congress has the option of either re-writing the law so it conforms with the Constitution or lead in making changes to the Constitution.  Therefor, the Judiciary has no power over the Congress other than disaffirmation of law.

Accordingly, the Congress has the primacy of governance.  Neither the Executive or the Judicial have the power to change the Constitution, but with popular support the Congress does.  Ergo, Congress has greater power.  

To my point, the backlash of the Massachusetts opinion has caused a rash of knee-jerk reaction to the notion of gay marriage.  If the Congress can - and it just maybe can - get the country to adopt that ridiculous Federal Marriage Amendment, let the 14th Amendment be damned.  It will be law.

db



>Dave is right to fear judical activism. The courts should be only ruling on constitutionality. Their job is to prevent "the tyranny of the majority" that can be the result of legislation. The legislature  does not rule. The Legislature, the Executive branch and the Judicial System are suppose to be in balance.
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>>Nick Gier wrote:
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>>"When Dave states that we must decide basic issues of human rights by a 
>>democratic vote, he has left, as far as I'm concerned, the libertarian 
>>fold."
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>>Nick,
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>> I did not say that we "must" decide basic issues of human rights by 
>>democratic vote.  I implied, and I'll say it now, that it is preferable 
>>to do just that.  I said "Preferably the law should be changed by 
>>democratic process.  In other words, the day will likely come when a law 
>>that you favor and is mandated by majority representation will be 
>>overturned by judicial fiat.  This is the wrong way to run a democracy 
>>or a republic.."
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>>So, let's say that Mill is correct and we need "to protect even a 
>>minority of one."  Are there no moral constraints on that "one's" 
>>behavior?  Is there no vote on morality that is subject to majority opinion?
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>>As to your questioning my "libertarianism" - As you have taken liberties 
>>with my words or at least taken a superficial reading of them (perhaps 
>>caused by 31 years of staring at the sophistry of youth) I protest.  As 
>>a libertarian I am clearly inside a very small minority of Americans.  
>>Hence, as opposed to being an ideologue I take the pragmatic approach of 
>>incrementalism.  That, to which, I also fear the effects of judicial 
>>activism insomuch as they have great potential to deny liberty as much 
>>as develop it. 
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>>Frankly, I care not about animal sodomy, bigamy, or adult incest. But I 
>>also understand that efficacy of governance is largely predicated on 
>>consensus of the governed.  So I'll remove your words from my mouth so I 
>>can re-insert my foot and instruct you to my underlying tenet that 
>>since, in our form of government, the legislature is ultimately supreme, 
>>one has to fear the unintended consequences of judicial decree on future 
>>legislation that will constitutionally deny liberty.  I see nothing 
>>inconsistent in that from a pragmatic standpoint. The luxury of pure 
>>ideology is only afforded to the ineffectual. 
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>>Perhaps I'm not as libertarian as you would have me.  I am, however, on 
>>the same side of liberty I think.
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>>db
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>>>Greetings:
>>>
>>>As I have noted before, I've generally been impressed with David 
>>>Budge's intellectual acumen and what at first appeared to be a 
>>>consistent libertarian position, as opposed to some phony Christian 
>>>libertarians that we know so well.
>>>
>>>John Stuart Mill's On Liberty has been a classic resource for 
>>>contemporary libertarians, and one of the most important points that 
>>>Mill makes in his defense of liberty is the protection of minorities.  
>>>I believe this is a direct quote: "Even a minority of one must be 
>>>protected."  (This is the reason why we need the ACLU.) When Dave 
>>>states that we must decide basic issues of human rights by a 
>>>democratic vote, he has left, as far as I'm concerned, the libertarian 
>>>fold.  We have a judicial system primarily because we don't want a 
>>>majority of people in Mississippi tell its citizens that segregation 
>>>is OK because that is how they've always done it.
>>>
>>>As I have argued elsewhere, in a true libertarian society the role of 
>>>government would contract significantly, but the court system would 
>>>expand not contract.  For example, the libertarian solution to 
>>>pollution is not a clumsy EPA but class action suits against 
>>>polluters.  The libertarian solution against unsafe planes is not the 
>>>FAA but class action suits against unsafe carriers.  The libertarian 
>>>argument is that this is a far more effective way to irresponsible 
>>>businesses.
>>>
>>>After teaching undergraduates for 31 years and learning how poorly 
>>>they understand basic rights such as equality of opportunity and 
>>>liberty to do what one wants within a minimal legal framework, I do 
>>>not want my fellow Americans voting on these basic rights.  They are 
>>>not negotiable and our courts are there to protect our inalienable 
>>>rights.  That's why I'm so fearful of the current administration 
>>>packing the court system with real activist judges.
>>>
>>>Yours for liberty, equality, and community,
>>>
>>>Nick Gier, Classical Liberal
>>>
>>>------------------------------------------------------------------------
>>>
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