Most libertarians, even anarchists, often make constitutional and jurisdictional arguments against a given un-libertarian policy. Such arguments have their place and uses. It often helps in demonstrating the illegitimacy of the system to point out particular ways that the state violates its own laws and constraints. Sometimes, listing the transgressions of a government and contrasting them with the framework and doctrines that supposedly justify that government's existence and conduct, can give an idea as to just how hypocritical and absurd government is in the real world. As a pragmatic consideration, if constitutional arguments and sentiments ever do effectively limit the state's size and reach, this is a good thing too.
However, there is nothing magical about checks and balances, divisions of power, and the like, that as a matter of principle or natural law leads to a greater sphere of human freedom. Even if Congress, the president, and the Supreme Court never strayed from their respective designations of power as they concern each other, it does not necessarily follow that the amount of state power and oppression would be minimal. It probably turns out that dividing power is better for liberty than consolidating it, but this is not as axiomatic as some libertarians might prefer to believe. In fact, the very notion of an optimally effective system of checks and balances, in which each branch of government does more to limit the damage done by other branches than it does in causing damage itself, is riddled with absurdity.
In pondering the absurdity of checks and balances, let us reflect on a passage by Thomas Paine in his revolutionary pamphlet, Common Sense. Now, nearly everyone is familiar with Thomas Paine's most cited argument: that the King had no natural right, merely by virtue of being born to royalty, to rule a group of people who lived 3,000 miles away. This is, of course, a very valid point, and I'm glad it has caught on. But by focusing on this one insight of Paine's having to do with royalty, an assumed anachronism in today's world, many have ignored one of Paine's more trenchant insights and its radical implications for the more modern democratic states that now dominate the West.
To say that the constitution of England is an UNION of three powers, reciprocally CHECKING each other, is farcical; either the words have no meaning, or they are flat contradictions.
First. ' That the King it not to be trusted without being looked after; or in other words, that a thirst for absolute power is the natural disease of monarchy.
Secondly. ' That the Commons, by being appointed for that purpose, are either wiser or more worthy of confidence than the Crown.
But as the same constitution which gives the Commons a power to check the King by withholding the supplies, gives afterwards the King a power to check the Commons, by empowering him to reject their other bills; it again supposes that the King is wiser than those whom it has already supposed to be wiser than him. A mere absurdity!
There is no reason not to extend this argument to current political circumstances. Beyond the executive's bloodline being a poor justification for absolute power, the very notion that any type of executive can be better trusted because he is being restrained by a legislative political entity, which in turn can be better trusted because it is being restrained by that which it is in charge of restraining, both of which all the while are being restrained by a judiciary that they themselves restrain in kind, is totally, in Paine's words, 'a mere absurdity!' All that checks and balances reveal is that people are more comfortable with government that they believe is keeping an eye on itself ' a paradox, like much of politics, grounded in the contradiction that government can't be generally trusted but can be trusted to contain itself.
The above is probably my favorite passage in Common Sense, though, as far as I can tell, this is not the most commonly taught passage in the school system. I can understand why. The typical civics lesson in the government schools is that you must obey your government, which reflects the will of the people, since the people are allowed to vote. And yet, this is another paradox that Paine is implicitly refuting: What is the point of the government itself, if it is at once supposed to be superior to and inferior to the people ' if it is absurdly assumed to be 'wiser than those whom it has already supposed to be wiser than'?
Democratic voting, checks and balances and federalism are all cited as wonderful institutions by many libertarians. I myself believe in some of them to some extent, but not because I see anything holy about the way conflicts within government become resolved, or because I have any faith that setting up the right system will ensure that the rulers will behave themselves.
Federalism has its appeal not because government can be trusted to rule on a local level, but because it can't be trusted to do anything right. The reason to oppose federal intervention in the states is the same as the reason to oppose any government intervention. For an anarchist, in particular, the notion that one legitimized criminal gang ' the federal government ' can be trusted to restrain another ''' a state government ' is very problematic, for it is an admission in the belief that government can and will do good in tempering crime. Rather than a form of checks and balances, federalism is simply the elimination of one type of government activity: the overriding of other governments. You do not have to endorse, even tacitly, state policies simply by refusing to support a larger criminal regime overhead to correct its more localized evils. Indeed, the anarchist strain of federalism does not imply any respect at all for a criminal state policy overridden criminally by federal intervention, any more than we must respect murderers and rapists who happen to meet their fate at the hands of a criminal organization, such as a government with criminal powers. As a modern example, we do not need to have sympathy for any actual terrorists incidentally killed in the U.S. War on Terror, though the war itself is certainly criminal and not endorsable on anarchistic grounds.
In a sense, there are some legitimate anarchistic sympathies for checks and balances, as well. The idea that the president can usurp Congressional powers is troubling ' not because of any sympathy or faith we have in Congress, but because the President himself shouldn't have any power whatever in the first place. Libertarian reforms of government should always be in the direction of the ultimate goal: abolishing institutionalized coercion altogether. Any time you can weaken the power of any branch or level of government, without expanding any other powers of government, is likely a good step. However, we must relinquish the fantasy that government will play nice if only the criminal subsidiaries are organized in a clever enough manner.
Government is simply force, after all. There are no ways to check it or balance it by giving it more power. In the end, any attempt to do so, on the part of anyone, simply exposes something most of us know deep down inside: that government is bad and can't be trusted. It also exposes the contradictory desire of people to protect themselves from injustice by giving more legitimacy and credit to an inherently unjust social organization. This contradiction is at the heart of statism, as well as at the core of the overly enthusiastic libertarian defense of checks and balances. Certainly, so far, the supposedly brilliant and libertarian Constitutional system in America has failed to prevent the emergence of the largest government in world history. So we need to think of something better than checks and balances.
If government can't be trusted, we should admit it and not perpetuate the illusions that one particular arrangement of the state will look after or reflect the goodness of the people. If government can't be trusted, we should work to minimize and rid of it, instead of expending energy in the futile pursuit of a government that can be trusted to counter its own untrustworthiness.