I heard from a number of “new” RINOs after last week’s commentary, and they, like me, are increasingly frustrated with the direction of our government. This week I’d like to suggest something more radical than a mere change in the function of our government. Based on a recent lobbying experience, I wonder whether our form of government will even continue to function as intended.
A Key Governing Principle: Separation of Powers
One thing our Founding Fathers were concerned with was a concentration of power within the structure of our government that would crush the liberty of the people. They were concerned with power becoming concentrated in the judicial, legislative, or executive branches and with the power of any two of those branches of government combining against the third. This separation of powers was important to securing liberty for the people.
And how was this separation of powers to be protected and preserved? Federalist Paper No. 51 by James Madison provides the answer:
[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.
What Our Founders Didn’t Count on
This was wise. Our Founders counted on man’s ambition for power to counteract encroachments by others on the power they were given. What they didn’t count on was the love of the position itself—they didn’t count on elected legislators being fearful of doing anything that would prevent their re-election.
A Current Example of the Unanticipated Problem
This session, the Tennessee Legislature was asked to enact legislation that would tell our judges that the words “mother,” “father,” “husband,” and “wife” meant what everyone thought they meant. That would seem unnecessary, but a judge was being asked to “interpret” the word “husband” in a particular law to mean “spouse” when the statute was clearly referring to a biological male who was the counterpart to a “wife” in a marriage. And he was being urged to do so at the insistence of our state attorney general.
As I lobbied state legislators, I was struck by this response from a key legislator, generally known by his constituency as a “conservative.” This legislator fully understood that the judge in the case I described was being asked to rewrite a statute, and he realized that the judge would be doing so because of same-sex “marriage” and not because the meaning of the word “father” itself had changed over time. He understood that the purpose of the bill was to let our courts know that they could not “modernize” our statutes through judicial interpretation.
But the legislator was hesitant to support the bill. The reason for his hesitation? Dealing with legislation on this subject was too politically controversial.
Specifically, he said he didn’t think the Legislature would want to deal with any legislation regarding existing family law. To vote for bills to “modernize” those laws to comport with same-sex “marriage” would irritate conservative voters, and not to vote for them would irritate LGBT activists. His assessment is probably correct. His conclusion: Maybe it was best to let judges deal with the problem.
And that’s what the judge did. He ruled that “husband and wife” could be interpreted to mean “spouse and wife.”
The legislative body has been given the constitutional power to protect its power to write laws by removing judges who encroach on that power. But there aren’t enough lawmakers who will exercise it. And judges, seeing that the Legislature will not complain when they arrogate to themselves a power to “modernize” the law, will love that power and exercise it more often.
Where Does This Leave Us?
What our Founders had assumed would happen in situations like this is that legislators would not want a judge to encroach on their power to write statutes and that they would do something to protect their power. Whether that assumption still applies was put at issue in my conversation with this lawmaker.
Thankfully, not all legislators share that legislator’s perspective and, thankfully, this particular legislator did vote for another, different bill that told the courts that any undefined word in the Tennessee Code should be given its “natural and ordinary meaning” unless the context clearly shows that a different meaning was intended.
But what I realized was this: If the “ambition” simply to hold legislative office overcomes the Legislature’s “ambition” to protect its power from encroachment by the judiciary, then the separation of powers will become a dead doctrine. And with its death will come the death of our liberty.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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