Separation of powers

bc1fc476-3108-48bc-b6d3-b09ed916e40b_IMG_20210622_144550_110 Separation of powers, as any fule kno, refers to the division of a state's government into branches, each with separate, independent powers and responsibilities... The typical division is into three branches: a legislature, an executive, and a judiciary... The term "tripartite system" is commonly ascribed to French Enlightenment political philosopher Baron de Montesquieu... In The Spirit of the Laws (1748)1. Let us consider it in the context of the Constitution of the United States, which reappears in the context of Collins v. Yellenthe removal restrictions on the head of the FHFA violate the Constitution’s separation of powers because they infringe on the president’s authority over executive-branch decision-making.

And having said that, all I wanted to do was to make a brief point: that although SOP underlies the constitution, it isn't explicitly present. The word "separation" occurs nowhereWiki comments In combination with the Vesting Clauses of Article Two and Article Three, the Vesting Clause of Article One establishes the separation of powers and this is true, but it only does so implicitly. Nonetheless, people find it convenient to speak of "the Constitution's SOP" as though it was an explicit thing, because without it we'd have to speak in absurd circumlocutions.

Belatedly, it occurred to me to wonder who else has noticed this. Wiki doesn't seem to have, but unsurprisingly others have. For example: In his recent work, Manning has made a good case for the proposition that the separation of powers is not a principle of the U.S. Constitution.6 The Constitution, says Manning, “adopts no freestanding principle of separation of powers. The idea of separated powers unmistakably lies behind the Constitution, but it was not adopted wholesale.”7 (The contrast here may be between the federal Constitution, which, as Manning points out, contains no Separation of Powers Clause,8 and some of the state constitutions which, at least textually, do.)9 I think Manning has made a reasonable case... But notice how tentative and cowardly he is. He is a f*ck*ng scholar who unlike me has time to read the full thing. He should damn well know, not rest his judgment that someone else has probably made a reasonable case.


1. Somewhat controversially, that wiki article also says the separation is "so that the powers of one branch are not in conflict with those of the other branches". That is distinctly dubious; see here.


What If We Wrote the Constitution Today?The National Constitution Center’s Constitution Drafting project. Looking at the libertarian version, I find In completing this project, we’ve focused, as the original Constitution’s authors did, on protecting “negative” rights— that is, rights against being interfered with— instead of creating “positive rights,” such as a right to education, or health care, or other things that must be provided by others. Classical liberal theory holds that the only valid rights are things like free speech, private property, and the right to be left alone, and that so-called positive rights are not rights at all, but privileges that government can only give one person if it has taken away the rights of another which I like. See-also Rawls, continued.

Mortality risk attributable to high and low ambient temperature: a multicountry observational study (via Lomborg): Most of the temperature-related mortality burden was attributable to the contribution of cold.

* Two Facts about Mass Transit and Cars by David Henderson

Flawed Heatwave Report Leads to False Headlines in Major Media - Cliff Mass


Phil said...

Private property is a positive right.
The only reason you own land is that the government (W the C) took the rights to that land away from some person. So that W the Stoat could have it.

Paul Kelly said...

The U.S. Constitution lays out the specific and exclusive powers of each of the Branches. It would be superfluous to have a clause that said, "By the way, this is called separation of powers."

William M. Connolley said...

Giving it a name isn't the relevant bit. The question is, would it be desirable to have the overarching intent written down? For example consider the Collins vs Yellen example I gave. it is hard to derive the result they got from "The executive Power shall be vested in a President..." or anything else in there. It is much easier to get there from SOP.

Victor Venema said...

William, there is a left-wing (for the US) news show called "Majority Report", where people can call in. The gems are libertarians calling in thinking they can defend their ideology. You can find the last try here: https://www.youtube.com/watch?v=exHYiLDLq4E

Do you think you can do better? The telephone number is here:

William M. Connolley said...

Yer L there seems to do fairly well: min wage etc are govt interference if free labour mkts. Yer int doesnt seem to have a reply. "There is no such thing as a FM" is so tedious.

Victor Venema said...

L is a professional. The libertarians who reject any kind of state are more fun. They tend to find out they are actually supporters to feudalism. One of them found a nice way out to that by advocating assassination of rich people who use violence against others.

Non-libertarians see the L debate a bit differently. Here is a sample. https://www.youtube.com/watch?v=dnp58beK2Vg

There is no such thing as a free market sounds true to me. Even more so without a minimum wage. How is one supposed to get out of poverty without having any means to get out?

William M. Connolley said...

I could point you at all the std arguments against a min wage if you like but I can't really see the point. You're old enough that you've either seen them already or you're not really interested.

Victor Venema said...

And I could point to the empirical evidence that gradually raising the minimum wage is a good thing, but I think you are old enough to have seen this evidence.

What I do am curious about, when the minimum wage is so low that people cannot afford housing and food, would libertarians refuse government help and simply let them suffer and die? (Possibly pretending that charity could replace the government, but as a society our choice would be death.)

In the debate L was perfectly fine with the people in Florida dying when the building collapsed. That was his view of a just society, that people die when they make a mistake. Is this a general libertarian view? To non-libertarians it sounds rather heartless and, if the economy is the only guide of morality, to be a huge waste of resources to kill people when they inevitably make a mistake. That suggests that libertarians would also be fine with people dying because the minimum wage is too low.

But, okay, I did not want to do this debate by text; that rarely works with such fundamental differences in ideology. I thought it would be fun for you to have an interactive political debate.

William M. Connolley said...

> What I do am curious about

Um, OK, so you haven't read the std answers. The correct minimum wage is of course zero, or rather non-existent, but that does not imply that wages would be zero. As to what to do about those who would not make enough live: why tie this to the min wage? People without any jobs already exist. the std answer is that a rich enough society can't bear to see people dying on the streets, and so feeds them, or provides them resources. You could probably find some hardline Ls who would deny the govt any role in this, but most of those would expect private charity to take the govt's place; only a very few not-really-representative would argue that they should die in the street.

> interactive political debate

I hate getting info from Youtube discussions, it is so slooow. If people have anything valuable to say, they should write it down. So, I didn't get as far as the condo. If he was arguing that govt cannot and should not save people from every imaginable misfortune, then I agree; govt trying to do so is bad. If he was arguing that people should be free to choose lower spec accommodation in exchange for a lower price; ditto.

See-also: idiot US govt regulations on insulin and the price thereof.

Unknown said...

Amusing, Cliff Mass.

A black swan tells us one thing.
A flock of black swans tells us something different.

By focusing on one black swan at a time, we can ignore the difference.

William M. Connolley said...

I don't think that's fair. See for example https://www.realclimate.org/index.php/archives/2021/07/rapid-attribution-of-pnw-heatwave/. Which assesses one BS, not the flock.

I did write a post entitled "not really believing this attribution of heatwaves" stuff but decided not to publish it :-)

Victor Venema said...

I understand that libertarians would argue the minimum wage should be zero. Of course that would drive wages down, not just for minimum wage workers and give a larger part of society's fruits to the owner class.

Good to hear you see a role for government in caring about people who could then not sustain themselves. I would see that as the government giving money to corporations and yet another way to redistribute wealth from the poor to the rich who own the corporations. Something we already to much too much.

Surprising you bring up insulin. Their price is a problem in the more-libertarian USA and much less of a problem in more social-democratic societies. Monopolistic corporations will naturally abuse their market power if the government is too weak to stop them or when the right-wing coalition (libertarians in the US are part of) make it legal for corporations to bribe politicians.

L was arguing that there should be no role for government to check whether buildings are safe, just private inspections and private insurance. (The people in the building knew there were problems both due to government and private inspections, but repairs would have been expensive and no one (unfortunately, I would say as non-libertarian) forced them to make them. As far as I know they had private insurance.)

For science I would agree that it is most productive to write down the debate, to make sure everything is accurate. For politics debates can be a useful addition, it is easier to be evasive in writing about such broad topics where one will not reach scientific levels of accuracy because problems are not well defined. In writing it is easier to hide behind lofty words about better societies that one is actually defending special interests.

William M. Connolley said...

> L was arguing that there should be no role for government to check whether buildings are safe

It is a defensible attitude. A weaker version is that govt can do the inspections, but their role is limited to doing so, and making the results available; tenants get to make up their mind what to do about it. But we're currently so far away from that kind of thing being the major problem that I don't greatly care; bringing it up in discussion is pointless.

> Their price is a problem in the more-libertarian USA

Thinking the US is uniformly L is weird. If it was, you could just import insulin and the price differential would not be large. So, it isn't, in this regard.

Unknown said...

The condo association is a form of government.

Now, for a better example, consider a building owned by a shell corporation in the Bahamas that is controlled by a trust in the Cayman Islands governed by a limited partnership in ...

If not maintaining the building until it falls down is the most profitable course of action for the owners, what stops them?

Not the market.

William M. Connolley said...

If the building is profitable (and for the purposes of this example considered to be dangerous, if at all, only to its tenants) that implies there are people who wish to pay to live there, in full awareness (we are hypothesising) of its (accurate) building report. And yet for some reason you know better than these people, and wish to substitute your judgement for theirs. Why is your judgement better?

Victor Venema said...

Then you seem to agree with L. I guess non-libertarians thought the debate was over when L admitted that he was fine with these people dying, including their kids, including people who did want to invest. I think most people "even" have moral systems in which also the people who delayed the repairs because it was a lot of money do not deserve to die for making a mistake.

Especially in an inhumane very libertarian society like America, where people are set up to make mistakes, I see it as deeply immoral to put the death penalty on making a mistake. Or to have people loose their house because medical problems and surprise billing. It is not only immoral, it is also bad for the economy to remove productive members of society from the economy.

So in the debate Sam did not really reply to L saying this, just made a "I got you good" face. So maybe you could jump in and continue the conversation there and defend the it-is-good-and-moral-that-these people-died position.

Unknown said...

Ha. What a wonderful example of Libertarian Magical Thinking.

Just why would tenants know anything what so ever about the building's inspection report?

Seems to me like the building management would try very to keep such stuff "confidential". Keeps the rents higher. More profit.

The problem with magical thinking like this is that someday a reality check will be delivered.

William M. Connolley said...

> do not deserve to die

I think you're confusing different things. No-one is suggesting those condo folk *deserve* to die. The issue is rather how much should govt intervene on liberty to prevent such risk. And the US is (obvs) not "very lib" because it *does* have govt-mandated and enforced building codes.

Victor Venema said...

Maybe the USA is not very lib by your standards, but it is more libertarian than continental Europe. When things become more social democratic they tend to become better. When something becomes more lib, the problem seems to always be that it is not lib enough. Weird, ain't it?

This gives non-liberatarians the idea that the purpose is not to create a better society.