Only Power Can Check Power

Only power can check power by Ryan MacMacon.

A central problem of political theory

has long been the question of who watches the watchers.

This stems from the fact that it is generally assumed

that it is necessary to grant the civil government

a monopoly on coercive power in order

to protect the subject population from domestic crime

and from aggression by some other state.

Once the civil government obtains this monopoly,

it is transformed into what we call a state.

But once the state possesses this power,

how can the state be tamed if it then abuses that power?

This is a question that has long plagued theorists

who have attempted to create constitutions

and political systems that would somehow prevent

the states abuses of power or provide for some means

of raining in the state and its powers should abuses occur.

In the early years of American independence,

this was a common concern.

In 1787, when the American Federalists

were pushing for a new United States Constitution,

they promised, among other things,

that the Constitution would ensure the government

would not grow to the point that it could violate

the freedoms of Americans.

Many Americans, however, were skeptical

that the federal government needed the vast new powers

it was demanding.

After all, the new Constitution granted new taxation powers

to the central government and provided the central government

with a means of easily raising armies

and wielding federal power against the people

of the states themselves.

Don't worry, was the Federalist response to these fears?

The Federalists pointed to elections

and elected legislatures as guarantees

against abuses of federal power.

Hamilton, for example, claimed that no one in the federal government

would wield any powers that were not

specifically granted by the text of the new Constitution.

Clearly, the Federalists were wrong.

Federal power is today far, far larger

than any 18th century American would have imagined.

And the American states have been reduced largely

to administrative units of the federal government.

Today, it would be absurd to claim

that the federal government has never wielded

or abused powers that were not specifically granted to it

in the text of the Constitution.

The existence of the central bank, the spy powers

of the Patriot Act, and the so-called selective service

are only three examples.

Nor can we say that elections and congressional votes

have ever been a sufficient bulwark against federal power.

Indeed, Congress assembled in Washington

has done much to empower the federal government

beyond its promised limited powers.

After all, almost immediately following

the adoption of the new Constitution,

the federal government erected a vast new system

of federal courts, imposed new taxes,

and imposed new sedition laws.

By the end of the 19th century,

the federal government was raising increasingly

large standing armies for purposes of territorial conquest

and the military subjugation of American member states.

Today, the federal government grows with no limits

on its power except its own internal legal experts,

that is, the Federal Supreme Court,

which are members of the same Washington elite

as the rest of the federal central government.

Only power can check power.

So why has the U.S. Constitution failed

to restrain federal power in any meaningful way?

Beyond the fact that few Americans actually care

about limiting federal power, the primary reason

is there is no independent power that can check federal power.

Allowing the federal government to function this way

is like allowing a police department to investigate itself

to determine if it has abused its power.

This was understood by countless Americans

of the revolutionary generation thanks

to the real world experience of an eight-year war

and the well-known history of the English Civil War,

many Americans knew that no peace of parchment

and no legal framework ultimately is sufficient

to restrain the prerogatives of a powerful state.

In other words, these Americans understood

the timeless political truth that once a state is resolved

to address against its own people,

only power can check power.

Theoretical legal powers written down on a piece of paper

mean little in the state of emergency.

This did not trouble the pro-centralization

and federalists of the time who had convinced themselves

that internal checks and balances could limit federal power.

The federalist papers are filled with explanation

of the federal government.

The federalist papers are filled with explanation

of the federalist view on this,

although it is unclear how much the federalists themselves

actually believe the claims.

The federalist papers, after all,

were primarily propaganda designed to convince people

to support the new constitution.

The authors were willing to say whatever it took

to get their new constitution.

They used many thousands of words,

concocting theories of how various parts

of the federal government,

all parts of the same government and all controlled

by the same governing elite,

would somehow limit its own powers.

But in spite of all the talk about how Congress

would never let the president get away

with abusing federal power,

is almost laughable in the 21st century.

The end goal was a consolidated federal government

that would be able to independently exercise vast new military

and coercive powers.

Yet many did not buy the argument

that Americans assembled in Congress

would somehow prevent the federal government

from turning its power against Americans.

The solution among the opponents

of new centralized government,

now known as anti-federalists,

was to ensure that the states themselves

would have the means of resisting federal power

by force of arms.

One of the most concise and animated summaries

of this position comes from Patrick Henry

at the Virginia ratifying convention in 1788.

After being told that assemblies of delegates

could address the problem of federal power,

Henry responded.

The honorable gentleman who presides told us that

to prevent abuses in our government,

we will assemble in convention,

recall our delegated powers,

and punish our servants for abusing

the trust reposed in them.

Oh, sir, we should have fine times indeed.

If to punish tyrants,

it were only sufficient to assemble the people.

Your arms, wherewith you could defend yourselves,

are gone.

Did you ever read of any revolution in the nation?

Brought about by the punishment of those in power,

inflicted by those who had no power at all.

You read of a riot act in a country

which is called one of the freest in the world,

where a few neighbors cannot assemble

without the risk of being shot

by a hired soldiery,

the engines of despotism.

We may see such an act in America.

A standing army we shall have also

to execute the executable commands of tyranny

and how are you to punish them?

Will you order them to be punished?

Who shall obey these orders?

Will your mace bearer be a match

for a disciplined regiment?

In what situation are we to be?

The clause before you gives a power

of direct taxation,

unbounded and unlimited,

exclusive power of legislation,

in all cases whatsoever,

for 10 miles square,

and overall places purchased

for the erection of forts,

magazines, arsenals,

dockyards, et cetera.

What resistance could be made?

The attempt would be madness.

You will find all the strength

of this country in the hands of your enemies.

Their garrisons will naturally be

the strongest places in the country.

Your militia is given up to Congress also

in another part of this plan.

They will therefore act as they think proper.

All power will be in their own possession.

You cannot force them to receive their punishment.

Of what service would militia be to you

when, most probably,

you will not have a single musket in the state,

for as arms are to be provided by Congress,

they may or may not furnish them.

The answer for the early American

was to oppose any federal standing army

and to ensure that the states themselves

had the means of defending themselves

from federal incursion.

These early Americans understood the phrase

only power can check power.

The French liberals in the wake of the revolution,

similar concerns were voiced

within the French classical liberal school

following the French revolution.

After the terror and the wreckage

of Napoleon's reign and 25 years of warfare,

the French liberals observed that

the problem of the revolution

did not lie only with its disastrous ideology.

An additional problem was the centralization

of political power under the revolutionaries.

Although opponents of the state

are often rather naive about the necessity

of maintaining the independence of powers

to defy the central power,

the advocates of greater state power

have always understood this.

Thus, those who want stronger states

always without fail

also want more political centralization.

So the French revolutionaries advocated

centralization of political power in France

on an unprecedented scale,

yet the revolutionaries also benefited

from centuries of centralization

that had already taken place under the ASEON regime.

As Rothbard notes in his history

of political thought,

the absolutist French state

had worked to centralize power

for the same reasons

the French revolutionaries had done so.

To facilitate a strong state

and to enable the central state

to more easily put down any who resisted.

By the time of the revolution,

this process was already well underway

as noted by Sprite.

The French king explicitly sought

to reduce political fragmentation

of the French realm.

He strove to make French politics

ultimately subject to royal control

and to act as the sole representative

of the French kingdom in international affairs.

The many privileges that the aristocracy maintained

until the French Revolution

were hardly the same

as the large political autonomy

of the lords before the success

of the Capitian kings.

Before the Capitian consolidation,

some great lords could call their territories Regna.

Kingdoms in their own right

after the consolidation

they merely had privileges.

Note the importance of asserting

the French states control

over all international affairs.

Without political consolidation,

many of the nobility maintained

their own means of military defense.

And it is primarily due to this

that we can call the realms

of the nobility Regna.

This, of course, presented a very inconvenient reality

to the central state.

Local institutions could resist

by force, if necessary,

the incursions of the central state,

similarly Alexis de Tocqueville noted.

During the aristocratic ages

which preceded the present time,

the sovereigns of Europe had been deprived of

or had relinquished many

of the rights inherent in their power.

Not a hundred years ago,

amongst the greater part of European nations,

numerous private persons and corporations

were sufficiently independent

to administer justice,

to raise and maintain troops,

to levy taxes,

and frequently even to make or interpret the law.

Again, we see one of the most important characteristics

of this independence was the fact

that the local sovereigns,

whom Tocqueville here

tellingly refers to as private persons,

were capable of military resistance,

should the central state truly overstep its powers.

This acted as a sizable check

on the national monarchy's attempts

to centralize power.

Yet, by the time of the revolution,

this had largely been swept aside,

and all that was left was a prize

that had been prepared and nicely packaged

for the revolutionaries to seize.

A centralized state that had already made

the regional powers largely impotent.

Thus, in the wake of the revolution,

Tocqueville could see the mistake of centralization

as did the influential French liberal Benjamin Constantin,

who, according to historian Henri Michel,

in the term decentralization in French decentralization,

which Michel notes,

it is under this name

that it has entered the program

of the French liberal school,

where it constitutes an essential article.

In the wake of the centralizing revolution,

Constant sought to preserve

what was left of those local sentiments

that provided some resistance to the central state.

Constant, for example,

lamented that the revolution had done much

to break up the old regional allegiances,

going so far as to break up the traditional French regions,

to conform to a scheme of new provinces developed

by the central state.

And he notes, to build the edifice of the new French state,

they began by crushing and reducing

to powder the materials they were to use.

They almost designated cities and provinces with numbers,

just as they designated legions and army cores.

So great was their fear that sentiment might disturb

the metaphysics of what they were establishing.

Today, admiration for absolute unity,

a genuine admiration in a few narrow minds,

feigned by many servile ones,

is accepted as religious dogma by a multitude

of asidious echoes of every favored opinion.

As Ralph Raco shows,

Constant's response was to point to the essential importance

of both regional and religious allegiance,

hoping this would provide a foundation

for resistance against the central power.

Patriotism, for Constant,

was necessarily local.

While patriotism exists only through a keen attachment

to local interests,

blind patriots have declared war on these interests.

They have dried up this natural source of patriotism

and sought to replace it with a contrived passion

for an abstract entity.

A general idea stripped of everything

that strikes the imagination

and everything that betrays reality.

Constant wasn't saying all this

only because he liked the diversity of local culture,

embodies in French regionalism,

but because he saw local interests

contain a seed of resistance

that authority tolerates only reluctantly

and hastens to eradicate.

Without this, there is no hope

of fostering any true power

that can counter the central power.

Bastiat, ever the radical,

took Constant's view further,

advocating the abolition

of the French standing army altogether

and replacing it with armed private citizens.

This version of setting power against the central power

is the natural progression

of the Bastiat constant view of the state

in which, as Michelle writes,

to rival even hostile,

principles appear and stand in opposition

to one another,

the state and the individual.

Every triumph of one is a setback for the other.

In this view,

the individual in the state are never complimentary

and naturally necessitate

the preservation of non-state powers,

religion, local institutions,

and individuals against the state.

It is essentially a zero-sum game

in which the coercive power of the state

must be countered by constant effort to resist

by arms if necessary.

Thus, by the end of the 19th century,

Bastiat's disciple Gustave de Molinari

ultimately concludes we must question

the very idea of the state's monopoly on coercion

and Molinari advocates

for a widespread secession

as a counter to this monopoly.

Ultimately, we can contrast

the late French liberal school,

skeptical and realist

and not fooled by promises of legal bulwarks

against state power

with the more naïve Anglo

American view of checks and balances

within the state apparatus itself.

It was not always so.

The American anti-federalists

had the federal government's number.

They understood the ultimate end of federal consolidation

and the unification of the state's coercive power

under a single federal government.

The anti-federalists lost, of course.

The advocates of a United America won

and as in France, after the revolution,

Constan's words are relevant

when he says admiration for absolute unity,

a genuine admiration in a few narrow minds,

famed by many servile ones,

is accepted as religious dogma.

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