De Tocqueville made the point in his passage on tyranny of the majority in Democracy in America that separation of powers, much like Constitutional protections, are really at the whim of a motivated faction. For him this represented a nebulous majoritarian consensus, but that in turn is the creation of a motivated minority with access to media resources capable of manufacturing the needed consent. De Maistre saw the same problem; it's inherent to any government that uses democracy as a legitimating force. Once 'the people' decide, it becomes vital for elites to control who 'the people' are and what they think. Thus mass immigration and incessant propaganda. On that, the various powers are not the least separated.
This essay also points out something vital to understand about the current situation- there is no 'conservative' solution. The revolution having succeeded in instantiating itself into the state apparatus, any appeal to precedent, even remote precedent, will necessarily involve interpreting it through the mechanisms of the new order. The only solution is a counter-revolution, more fully comprehensive than what got us here.
Another incisive and lucid piece. I would say important to debunk conventional wisdom, except the separation of powers narrative is proselytized by constitutional/institutional luminaries. It's really refreshing to see a fresh (historical!) perspective. Thank you
Yes - your point that forms of government are overrated is important - liberalism is obsessed with institutional technology but the key issue, as the Church has always taught, is whether the public authority is oriented to the common good and respects natural and divine law, regardless of which Aristotelian regime category it falls into.
The Constitution is the conservative equivalent of a prayer shawl, or a Native American shaman's ghost-shirt. You drape it reverently over your shoulders, dance around, chant the 14th Amendment, and wait for the ghost of Ronald Reagan to come back and drive the Democrats into the sea.
Governmental forms per se are overrated. I was chatting with some friends this morning about the fact that four years ago we shut down a quarter of the economy and nobody even got a vote.
Fascinating piece. Kojéve's analysis of separation of powers in "Notion de l'autorité" comes to mind here too. It could be that the Court's SOP ideology stems from a kind of self-preservation instinct given that the doctrine tends to find its source first in the "authority" of the judiciary. Put another way, since the Judge draws their authority precisely from the doctrine as an "independent check" on political authority, courts have a vested interest (ideologically, of course) in preserving the status quo ante.
While I agree with most of the points you make here, and especially with the dispelling of the myth of a Rousseaunian, pre-state libertarian utopia, I have to disagree with the contention that the division of powers has no inherent connection with the protection of liberty.
Of course, I will be starting from the assertion that individual liberty is not the highest good that the state, community or individual can strive for and protect. When I say liberty, I refer both to individual and communal liberty, and include the caveat previously mentioned.
The division of powers, both horizontal and vertical, has the inherent effect of limiting the state’s ability to act. Although this, in and of itself, doesn’t automatically mean that it limits the ability to act in ways that are harmful to liberty more than it does the ability to act in ways beneficial to liberty, I would say that limiting the states ability to act is in and of itself beneficial to liberty.
Why do I say this? Because the modern, managerial state is a bureaucracy. Bureaucracies, because of their very nature, tend automatically towards expansion and growth. When speaking of the state, expansion of bureaucracy automatically entails the development of law and regulations, and over regulation is inherently harmful to liberty.
This is clear from the analysis of any modern state. Even governments that have deregulation as one of their express goals, such as Argentina’s Milei, continue emitting new regulations at a pace that would have appeared startling in any Western country 100 years ago.
Thus, although limiting the state’s ability to act may impede the process of deregulation, it also impedes the process of regulation, and modern states tend naturally towards expansion and not reduction.
This is not a quantitative argument (“the state emitted X regulations harmful to liberty, and only Y regulations beneficial to liberty”), but a qualitative one: the state’s ability to act must be curtailed in order to prevent or slow state bureaucratic expansion as much as possible.
I get what you’re saying, and it’s a useful comment, but I think there is a logical slippage here. Suppose that bureaucracies inevitably try to expand their power. (By the way, as I have argued elsewhere on TND, that is simply not so in fact; many bureaucracies fall into total inaction and passivity. Furthermore, bureaucracy as an institutional form has nothing to do with modernity; the Roman church is the great pioneer of bureaucracy in Western law — see elsewhere on TND as well. But let us put these points aside for now). Even if bureaucratic government is power-maximizing, that is by no means necessarily the same thing as regulation-maximizing — and that is the slippage. Power is the power to say what will or will not be regulated — the power to make the choice. It doesn’t follow that the choice will always or even systematically be in favor of more and more regulation. Indeed lots of bureaucracies de-regulate or forbid regulation by others. It might be interesting to check out the history of airline de-regulation and interstate common carrier deregulation in the United States. The first major regulatory agency, the Interstate Commerce Commission, essentially went out of business and was abolished.
Noted! I guess in the end it comes down to how much power you’re willing to give the state, knowing that (at least at the moment) it’s controlled by our opponents, and that even if the status quo changes, there’s no guarantee that it won’t change again.
You do make some good points, I’ll have to think about them some more. Thanks for answering! I’m a fan of your work.
> one is reduced to raw counting of cases, it is because there is no necessary relationship between liberty and the separation of powers
This is not true. If I came across a weighted dice coin, after examination, came up tails 80% of the time, then I would be justified in believing that there is a special connection between the coin and getting tails. One would not find in most any other dice. The same would hold true if the coin’s weight changed from 65%-95% over time.
I would even say this is true if the coin’s weight uniformly between 40% and 80%. Even if there are some cases where the coin is worse for tails than an ordinary coin, on average it still comes up tails 60% of the time…
Separation of Powers seems to be like the coin. In a system where regulatory action takes multiple actors (Congress to pass a law, the president to sign and execute, the courts to judge the violation), then the tendency is to have less governmental action. Certainly, if an enlightened Catholic monarchy had absolute power, they could sometimes do better at promoting the common good & liberty (like a lucky, “fair” coin flipping tails 7 times in a row) but the question is what does better over the long run.
What’s the alternate threshold for forms of government? 100% doing good things all the time? Presumably even a great Catholic monarchy committed to natural and divine law (which you say is the metric governments should be judged by) would fail to uphold that law in the unfortunate event that an impious man ascended to the throne. Does that mean that no government has any intrinsic connection to anything? If so… why do you spend so much time writing about it!
I actually bought a paid subscription about two hours before you posted this one! I look forward to reading your work (and the work of your excellent contributors).
If you tell me what part of my comment constitutes trolling, I will remove that part of the comment, no questions asked. I understand that this is your substack, and your rules go.
Some preliminary remarks… The ruling ‘power’, by virtue of its agency and the ‘sense’ of the concept of power ‘to will and act’, is logically indivisible; it always acts as itself, as One. On this account, the separation of “powers” seems to be either a misnomer or a pretence. Consequently, if ‘power’ is univocal as a matter of logical necessity, then the said power, whether it is ostensibly divided or not, may only be (either) ‘right’ or ‘wrong’, and it is then only the objective standard of rightness for the exercise of power that matters for its legitimacy as ‘authoritative’ and for the legitimacy of its law. It then follows that only the objective standard of legitimacy (if one can be demonstrated) can ground authority, or perhaps better, is the only legitimate ‘source’ of authority.
It was never really for the purpose of preserving individual liberties so much as to ensure reason had the chance to prevail over impulse.
Well, be that as it may (see here for mild skepticism: https://www.virginialawreview.org/wp-content/uploads/2020/12/1435.pdf), the Court hasn’t gotten the memo!
De Tocqueville made the point in his passage on tyranny of the majority in Democracy in America that separation of powers, much like Constitutional protections, are really at the whim of a motivated faction. For him this represented a nebulous majoritarian consensus, but that in turn is the creation of a motivated minority with access to media resources capable of manufacturing the needed consent. De Maistre saw the same problem; it's inherent to any government that uses democracy as a legitimating force. Once 'the people' decide, it becomes vital for elites to control who 'the people' are and what they think. Thus mass immigration and incessant propaganda. On that, the various powers are not the least separated.
This essay also points out something vital to understand about the current situation- there is no 'conservative' solution. The revolution having succeeded in instantiating itself into the state apparatus, any appeal to precedent, even remote precedent, will necessarily involve interpreting it through the mechanisms of the new order. The only solution is a counter-revolution, more fully comprehensive than what got us here.
Another incisive and lucid piece. I would say important to debunk conventional wisdom, except the separation of powers narrative is proselytized by constitutional/institutional luminaries. It's really refreshing to see a fresh (historical!) perspective. Thank you
Yes - your point that forms of government are overrated is important - liberalism is obsessed with institutional technology but the key issue, as the Church has always taught, is whether the public authority is oriented to the common good and respects natural and divine law, regardless of which Aristotelian regime category it falls into.
Thanks so much — appreciate it!
The Constitution is the conservative equivalent of a prayer shawl, or a Native American shaman's ghost-shirt. You drape it reverently over your shoulders, dance around, chant the 14th Amendment, and wait for the ghost of Ronald Reagan to come back and drive the Democrats into the sea.
Governmental forms per se are overrated. I was chatting with some friends this morning about the fact that four years ago we shut down a quarter of the economy and nobody even got a vote.
Fascinating piece. Kojéve's analysis of separation of powers in "Notion de l'autorité" comes to mind here too. It could be that the Court's SOP ideology stems from a kind of self-preservation instinct given that the doctrine tends to find its source first in the "authority" of the judiciary. Put another way, since the Judge draws their authority precisely from the doctrine as an "independent check" on political authority, courts have a vested interest (ideologically, of course) in preserving the status quo ante.
That’s very interesting — thx for the thought!
While I agree with most of the points you make here, and especially with the dispelling of the myth of a Rousseaunian, pre-state libertarian utopia, I have to disagree with the contention that the division of powers has no inherent connection with the protection of liberty.
Of course, I will be starting from the assertion that individual liberty is not the highest good that the state, community or individual can strive for and protect. When I say liberty, I refer both to individual and communal liberty, and include the caveat previously mentioned.
The division of powers, both horizontal and vertical, has the inherent effect of limiting the state’s ability to act. Although this, in and of itself, doesn’t automatically mean that it limits the ability to act in ways that are harmful to liberty more than it does the ability to act in ways beneficial to liberty, I would say that limiting the states ability to act is in and of itself beneficial to liberty.
Why do I say this? Because the modern, managerial state is a bureaucracy. Bureaucracies, because of their very nature, tend automatically towards expansion and growth. When speaking of the state, expansion of bureaucracy automatically entails the development of law and regulations, and over regulation is inherently harmful to liberty.
This is clear from the analysis of any modern state. Even governments that have deregulation as one of their express goals, such as Argentina’s Milei, continue emitting new regulations at a pace that would have appeared startling in any Western country 100 years ago.
Thus, although limiting the state’s ability to act may impede the process of deregulation, it also impedes the process of regulation, and modern states tend naturally towards expansion and not reduction.
This is not a quantitative argument (“the state emitted X regulations harmful to liberty, and only Y regulations beneficial to liberty”), but a qualitative one: the state’s ability to act must be curtailed in order to prevent or slow state bureaucratic expansion as much as possible.
I get what you’re saying, and it’s a useful comment, but I think there is a logical slippage here. Suppose that bureaucracies inevitably try to expand their power. (By the way, as I have argued elsewhere on TND, that is simply not so in fact; many bureaucracies fall into total inaction and passivity. Furthermore, bureaucracy as an institutional form has nothing to do with modernity; the Roman church is the great pioneer of bureaucracy in Western law — see elsewhere on TND as well. But let us put these points aside for now). Even if bureaucratic government is power-maximizing, that is by no means necessarily the same thing as regulation-maximizing — and that is the slippage. Power is the power to say what will or will not be regulated — the power to make the choice. It doesn’t follow that the choice will always or even systematically be in favor of more and more regulation. Indeed lots of bureaucracies de-regulate or forbid regulation by others. It might be interesting to check out the history of airline de-regulation and interstate common carrier deregulation in the United States. The first major regulatory agency, the Interstate Commerce Commission, essentially went out of business and was abolished.
Noted! I guess in the end it comes down to how much power you’re willing to give the state, knowing that (at least at the moment) it’s controlled by our opponents, and that even if the status quo changes, there’s no guarantee that it won’t change again.
You do make some good points, I’ll have to think about them some more. Thanks for answering! I’m a fan of your work.
Appreciate it!
> one is reduced to raw counting of cases, it is because there is no necessary relationship between liberty and the separation of powers
This is not true. If I came across a weighted dice coin, after examination, came up tails 80% of the time, then I would be justified in believing that there is a special connection between the coin and getting tails. One would not find in most any other dice. The same would hold true if the coin’s weight changed from 65%-95% over time.
I would even say this is true if the coin’s weight uniformly between 40% and 80%. Even if there are some cases where the coin is worse for tails than an ordinary coin, on average it still comes up tails 60% of the time…
Separation of Powers seems to be like the coin. In a system where regulatory action takes multiple actors (Congress to pass a law, the president to sign and execute, the courts to judge the violation), then the tendency is to have less governmental action. Certainly, if an enlightened Catholic monarchy had absolute power, they could sometimes do better at promoting the common good & liberty (like a lucky, “fair” coin flipping tails 7 times in a row) but the question is what does better over the long run.
What’s the alternate threshold for forms of government? 100% doing good things all the time? Presumably even a great Catholic monarchy committed to natural and divine law (which you say is the metric governments should be judged by) would fail to uphold that law in the unfortunate event that an impious man ascended to the throne. Does that mean that no government has any intrinsic connection to anything? If so… why do you spend so much time writing about it!
Why don’t you actually subscribe to the Substack before trolling in the comments and then we will see.
Hey Adrian. Thanks for your comment.
I actually bought a paid subscription about two hours before you posted this one! I look forward to reading your work (and the work of your excellent contributors).
You’re confusing probability with logical necessity, first, and second you are trolling. Please don’t do it again.
If you tell me what part of my comment constitutes trolling, I will remove that part of the comment, no questions asked. I understand that this is your substack, and your rules go.
Some preliminary remarks… The ruling ‘power’, by virtue of its agency and the ‘sense’ of the concept of power ‘to will and act’, is logically indivisible; it always acts as itself, as One. On this account, the separation of “powers” seems to be either a misnomer or a pretence. Consequently, if ‘power’ is univocal as a matter of logical necessity, then the said power, whether it is ostensibly divided or not, may only be (either) ‘right’ or ‘wrong’, and it is then only the objective standard of rightness for the exercise of power that matters for its legitimacy as ‘authoritative’ and for the legitimacy of its law. It then follows that only the objective standard of legitimacy (if one can be demonstrated) can ground authority, or perhaps better, is the only legitimate ‘source’ of authority.