Opinion: Separate and equal?


Published: 10-13-2023 5:00 PM

Mike Pelchat of Webster is a retired pharmacist and current student of history.

At a question-and-answer session in Austin, Texas, NH Governor Chris Sununu downplayed the danger to the nation posed by Donald Trump. Sununu expressed confidence that the nation’s institutions were strong and robust, and despite the damage Trump’s first term inflicted, Sununnu said he was confident they could prevent future damage.

One hopes he is correct. I am not so sure. The danger lies not in Trump himself but in the anti-democratic tendencies he set in motion that are now spreading across the country.

There have been ominous developments since January 6 which should raise alarm bells, developments which could undercut the very foundations of government. In Florida, Gov. Ron DeSantis is conducting his own small experiment in authoritarianism. Angered by the temerity of the Disney Corporation to exercise its constitutional right to criticize a law and petition the government for its repeal, DeSantis, aided and abetted by a compliant Legislature, signed into law measures punishing Disney. In Arkansas, Governor Sarah Sanders signed into law a measure, passed by her equally compliant Legislature, rolling back right-to-know laws to restrict the release of the governor’s travel and security records.

Why, one might ask, should these two separate issues occurring in two different states represent a danger to the nation? The answer lies in the most fundamental of our national institutions, the separation of powers. In both cases in Florida and Arkansas, the Legislature and executive worked in concert, essentially functioning as one body. This is not supposed to be how it works. The legislative and executive branches were intended to function as checks on the power of each other. These checks are not automatic, if one branch doesn’t, or more egregiously, won’t exert its power to check the other, the implications are ominous.

Perhaps nothing motivated Americans to action in the latter half of the 18th century more than the fear of tyranny. Some feared the tyranny of a too-powerful executive, others feared that a popularly elected Legislature operating without restraints could also become tyrannical. What both groups could agree on was the threat posed when executive and legislative power rested in the hands of one person or one group.

Taking their cue from the French enlightenment writer Baron de Montesquieu, a champion of the separation of powers, the framers of the constitution took pains to establish executive and legislative branches, though while not entirely separate and distinct, had sufficient powers to check the other. In Federalist Paper #47, James Madison eloquently defended the proposed executive and legislative branches and their enumerated powers. According to Madison, the accumulation of powers in the same hands, whether one or few or many, was the very definition of tyranny and destructive to liberty. Quoting Montesquieu directly, Madison wrote, “When the legislative and executive powers are united in the same person or body, there can be no liberty.”

The fear of tyranny led both the opponents as well as the proponents of the proposed constitution to acknowledge the need for a separation of powers. Some even argued that the proposed separation and system of checks did not go far enough. They may have been correct. When a governor and Legislature work in concert to punish political opponents or shield the executive from oversight, or, perhaps even worse, when an ex-president and current candidate for that same office calls on his supporters in Congress to force a government shutdown partly to hamper the criminal cases against him or inserts himself into the choice of a new House speaker, we have a problem.

An executive and Legislature working together to pass a budget or tax legislation is one thing but when they work together to avoid oversight or punish opponents all in the guise of protecting liberty or security, we actually have less liberty, and less security and the republican government is in trouble.

It is troubling that these developments have not been met with more alarm. Given the level of support for DeSantis in Florida and Trump in the Republican party, it seems many Americans would be fine with an authoritarian government if that government looks like them or sounds like them. The thing with authoritarian governments though is that the group in favor can change quickly and without warning. As Sam Adams wrote to a colleague in Philadelphia, “The most favored can only expect to be the last devoured.”

The United States is perilously close to realizing Madison’s worst fear, the tyranny of executive and legislative power residing within one group. Whether it be a governor and a rubber stamp Legislature or an ex-president exerting control and influence over a segment of Congress, the result is the same.

When a legislative body refuses or ceases to function as a separate and equal branch of government all it takes is the wrong man or woman in the executive office to take government down a road we may not want to take. Such a combination is every bit as destructive to liberty as an authoritarian dictator. To paraphrase Sam Adams one last time, to have a tyranny imposed on you is a misfortune, to elect it yourselves is a disgrace.