Friday, 7 April 2017

The End of Checks and Balances

In the 1640's the English Civil War (technically two civil wars) decided the supremacy of Parliament. And as Britain went on to become a successful Parliamentary democracy it has influenced, either directly or indirectly, every Parliament that exists today. After the Glorious Revolution of 1688 a system of checks and balances were introduced into the British Constitution. This Constitution is, unlike the more famous American one, unwritten. It divides power between three different institutions, the Crown, Parliament and the Judiciary.

In the United States Constitution the division of power was written down, but the principle is exactly the same. Each branch of the Government provides a series of checks and balances upon the other two branches. The Government was not the ruler of the people but the Guardian of their liberties. The best way to protect their liberties was to have a permanent stable Government with an approved method of peacefully changing the Government.

But what allowed each to function was the division of power. Each branch had it's rights and responsibilities and each was the custodian of both the rights and responsibilities. In fact the system had at it's heart a basic assumption, that both people and institutions crave more power. The system was designed so that it harnessed this force and used it in a constructive manner. Each branch being jealous of the power it had and refusing to give it up.

For the past 50 years Parliaments in every Western country have given up power. The best example of this is the United States, both the Presidency and the Supreme Court have taken the power the Congress and Congress has accepted it largely without protest.

Each decade since at least the 1930's the Supreme Court has created law, which is simply not it's job. What should happen is if the Supreme Court decides that a law is unconstitutional, then it should pass it back to Congress who then makes a new law. Instead Congress refuses to contradict the decisions of the Supreme Court and now whatever the Supreme Court decides is law. But this issue was settled in the 1640's, Parliament is supreme, why has Congress given away it's power to the Courts?

In the case of the Presidency things make more sense or at least it is more logical. The United States Constitution made the President the Commander in Chief of the armed forces and he is also responsible for foreign policy and foreign relations. But only Congress can declare war or sign a peace treaty and only Congress can vote to finance anything. Here is a clear example of the checks and balances. But how could the President threaten war if everyone knows he doesn't have that power? Because if he cannot threaten war it shows that he is weak, that the United States is weak and that can have serious consequences. So the Congress began to give the President the ability to threaten war and in time to wage war, all without the authority of Congress. It's not constitutional but it is logical even if you don't agree with it.

But the Congress also gave it's power away to other bodies that were not in the Constitution, the United Nations being the most powerful of these, although not the only one. In fact this started in the 1800's when Governments, not just the United States, began to sign up to International Courts and Tribunals, mostly concerned with settling Maritime issues or minor territorial disputes.

When created the British and American Constitutions were about what the Government were allowed to do, but today unless it says the Government cannot do something then it can. The interpretation has changed from restricting the actions of Government to unrestricting the actions of Government, unless specifically restricted.  

When you look at other countries you see this exact same thing happening, it certainly is not restricted to the United States. The transfer of power away from the peoples representatives to unelected people. The system was never designed to be treated like this, it was never imagined that Parliaments would willingly give away their power. But maybe that's the answer, Parliament is supposed to be where the people have power and the weaker Parliament is the weaker the people are.

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  1. After the Glorious Revolution of 1688 a system of checks and balances were introduced into the British Constitution.

    The great weakness of the British constitution is that the monarchy is much too weak. But then there's no such thing as a perfect constitution.

    but today unless it says the Government cannot do something then it can.

    That's always been the European philosophy. The concept of freedom is peculiarly Anglo-Saxon. What we're seeing is the European philosophy being adopted in the Anglosphere, partly through the influence of bureaucratic nightmares like the UN and the EU.

    It's ironic that the Second World War seemed to end with the US and Britain triumphant but then they began the process of undermining their own institutions.

    The other factor is the gradual replacement of the English common law by statute law. This has been one of the biggest mistakes we've made. The English common law (not democracy) was always the key to the freedom enjoyed by Englishmen.

    1. Mr. Doom

      You've made some good points but I would like to point out that Britain was the world's first constitutional monarchy. And over time much of the power of the Monarch was given to the Prime Minister.

      Secondly your absolutely correct about how important common law was in maintaining our liberty!

      Mark Moncrieff

  2. It a good idea I think to distinguish between the law as such and the rule of law. I don’t think the law as such has been unduly influenced by ideologies or interefere3nces for it is more a matter of the rule of law where we see a move away from the spirit of the law and a propensity or to find a way to divest power away from the legislatures.
    The other point worth noting concerns globalization which has rendered sections of traditional legal systems inept.

    This is because a growing number of international institutions gain both public power and exercise power over private citizens. Decisions are being taken outside the state and hence national leaders are limited as to how they can exercise control in the face of these powerful forces.

    The extent to which individual citizens have some say is a mute point but I think there is evidence more often that not they have very little say. One might aptly name this trend as an emerging global democratic deficit.

    The other point is that the Common law arises from the interpretations on the enacted statute Law as to how it is to be interpreted. Hence common law is in effect the history of the application of cases by judges which over time which become acceptable precedents until such time as they may change because of changes in rulings. English common law occurs as a consequence of judges in courts applying the statute and legal precedents or from the rulings of previous courts. The application of common law also becomes increasingly difficult with the emergence of globalisation and the moves for international law to usurp the prior precedents embodied within common law.