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July/August 2003
Volume 11 Issue 4

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VERTICAL SEPARATION OF POWERS: Checks and Balances

by Dianne Gilbert
New Hampshire Center for Consititutional Studies




The polity of the United States is made up of two great divisions of power ñ that of the States and the nation; and, the beginnings of these respective divisions are found in the colonies and in their union. Our nation’s motto confirms the latter: E PLURIBUS UNUM [the one from the many]. At every stage in the establishment of our nation, local self-government and national union were seen acting in harmony.

To that end, Americans who study and understand their government will recognize the term separation of powers. If asked what it means, they will typically explain the horizontal separation of power doctrine as it applies to the three branches of government, namely: the legislative, executive and judiciary. Most however, would be at some loss to explain the vertical division of powers; and, this alone provides a reasonable explanation as to why American government once safely described as being of, by and for the people is now often said to be of, by and for the bureaucrats.

Older Than The Old Testament

The vertical separation of power doctrine pre-dates American government under the Constitution. It is older than the Old Testament itself in that it was the structure of government used to govern the Ancient Israelites. Under the strain of trying to be everything to more than 3 million Israelites, Moses, on the advice of Jethro his father-in-law, partitioned the people into groups of 10 families, then 50 families, then 100s and 1000s of families. Each group was then instructed to choose a leader to represent them and to handle all matters unique to the group. Elevation to the next larger combination, or layer, was to occur only if there were issues in common with other groups within a given layer.

The strength of this layered form of civil government is seen in the way it encourages individual accountability, upholds the family unit as basic to a well-formed society, and in the way it supports the doctrine of self-government. By assigning responsibility to each group for the resolution of problems unique to their community, the people remained in control of their personal liberty and were challenged to use their God-given creativity to solve issues at the point of origination.

But of interest here is that by Moses’ vertically partitioning the people government, he had set up a republican form of government, that is, representative government! Jefferson later discovered this pattern of vertical separation integral to another civilization, the ancient Anglo-Saxons of England. Then, in comparing the governments of these ancient peoples to the structure of government within the 13 original States, he was amazed to see that their arrangement of local, county and state government were very similar.

The Constitution Upholds Vertical Separation

Ratification of the Constitution did nothing to upset this structure. If anything, it reinforced what the states were already doing. Jefferson approved of its efficiency and the way in which it safeguarded the people’s liberty. He explained: "The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the functions he is competent to. Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the state governments with the civil rights, laws, police, and administration of what concerns the state generally; the counties with the local concerns of the counties; and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations until it ends in the administration of every man’s farm by himself, by placing under everyone what his own eye may superintend, that all will be done for the best." 2

Framers Cherish The Family

Suffice it to say that the Founding Fathers did not trust American freedom solely to the separation of power doctrine. They looked to church and family government to provide society with well-rounded, self-disciplined, and virtuous individuals. The importance of these values as undergirding for the Framers' limited and separated government was deemed immeasurable. Sam Adams, Father of the American Revolution, sums it up nicely: "We may look up to Armies for our defense, but virtue is our best security. It is not possible that any state should long remain free, where virtue is not supremely honored."

To this end, the Framers charged parents, as the natural stewards of their children, with the responsibility of raising their offspring to become moral and responsible adults. They expected each individual to take personal responsibility for solving his own problems. If his efforts proved fruitless, it was expected that he would seek help from those next in line, namely: his family, his church and, if all else failed, his community. Only if the issue involved multiple communities, should it be elevated to the county level and, from there to the state level. But NEVER, was it expected that the national government would enter the picture for matters local to a particular state.

This was the plan the Framers followed in framing the national government. Jefferson agreed: "I wish to preserve the line drawn by the federal Constitution between the [federal] and [state] governments as it stands at present, and to take every prudent means of preventing either from stepping over it." 3

A New Order of Government

Needless to say, government agencies such as fema, hhs, doe, hud, epa, etc., along with a myriad of taxpayer funded, non-profit organizations (i.e. Planned Parenthood, Red Cross, etc.), were NEVER part of the Framers' plan. We ought to be concerned that they are now for as W. David Stedman writes: "Not only do the various branches of government seek ways to expand their power by changing the Constitution, but there are well-organized and heavily-funded organizations actively at work to make serious changes in the Founders' system." 4
Andrew Jackson, America’s 7th President, one of the very few who would use his veto power on unconstitutional legislation warned: "It is well known that there have always been those amongst us who wish to enlarge the powers of the general government...and..."to overstep the boundaries marked out for it by the Constitution."

This 19th century view stands in stark contrast to what has become of the Framers' plan of government as showcased by America’s 32nd President Franklin Delano Roosevelt. In talking about his New Deal programs he declares: "We have undertaken a new order of things... We have proceeded ''a measurable distance on the road toward this new order." "In defining immediate factors which enter into our quest:

The security of livelihood

The security against the major hazards and vicissitudes of life

The security of decent homes" 5

It was a bold move from which the states and individual rights have yet to recover. By tearing into state sovereignty, the New Deal struck hard at our dual system of government; that aspect of the Framers' plan which founding father James Iredell acknowledged as firmly in support of the vertical separation doctrine: "When this government is adopted, there will be two governments to which we shall owe obedience to the government of the Union, in certain defined cases to our own state government in every other case." 6

Toxic Political Rhetoric

It concerned Jefferson that the people might be taken in by toxic political rhetoric like that of the New Deal. He saw the seeds of despotism being sown into these government schemes and their potential for ultimately enslaving the people as has been done so many times throughout history. He said: "If we can prevent the government from wasting the labors of the people under the pretense of taking care of them, they must become happy." 7

Sam Adams, Son of Liberty, was more specific as to where utopian schemes, like the New Deal, fit into the Framers' plan: "The Utopian schemes of leveling [the re-distribution of wealth], and a community of goods [central ownership of all the means of production and distribution], are as visionary and impracticable as those which vest all property in the Crown. [These ideas] are arbitrary, despotic, and in our government, UNCONSTITUTIONAL." 8

The Framers’ Constitution Betrayed

In October of 1961, speaking in San Francisco, Ronald Reagan delivered a speech on world communism. He encouraged Americans to return to the ideas and genius of the Framers’ system: "And, what were those ideas? The founding fathers -that little band of men so advanced beyond their time the world has never seen their like since - created a government based on the theory that you and I have the God-given right and ability to determine our own destiny...They shaped government, bound it with a Constitution, and said its only function was to be a watchdog over man’s freedom. They never planned that it should it become a cow to be milked There were no fringe benefits at Valley Forge! The West was won without an area redevelopment program!" 9

Twenty years later, speaking before The National Center for Constitutional Studies, in a speech entitled "Sold Down The Potomac - Our Constitution Betrayed," former Attorney General Edward Meese III made the point that the vertical separation of power doctrine is a lesson in federalism. He said that: "...to ensure that the federal government did not encroach on the prerogatives of the states, the Founders added the Tenth Amendment to the Constitution which said that power that was not otherwise assigned in the Constitution was left to the states or to the people themselves." 10

Time To Sound The Trumpets

Recall that E Pluribus Unum ñ the one from the many, resulted from an action taken ''each in their own time' by the thirteen sovereign states. That is to say, it was the states that created the national government and not the other way around. Recognizing this, we would do well to remember that:

The states were set up as sovereign entities to be governed by their own constitutions. They were set up to reflect the will of the people of their respective states, not as administrative units reflecting the will of the general government.
With few exceptions, their area of jurisdiction is mutually exclusive of the powers they granted to the national government.

Do we mean to preserve the Framers' plan of government for future generations of Americans? If so, W. Cleon Skousen advises, "Americans to sound the alert and get off their oversized apathies so they can capture control of their affairs again." 11 This mean Americans need to get reconnected with the roots of the American Republic; parents need to understand both the written and the unwritten republican principles and institutions that undergird the American

Constitution and teach them to their children for posterity.

Book of Exodus 18:13

Bergh 14:421 (1816);

Ibid. 8:276 (1791);

Ibid. 10:167 (1800);

A Basic History of The United States: Vol. 5; The Welfare State 1929-1985; Clarence B. Carson; p59;

The Making of America; W. Cleon Skousen, p 183;

Bergh 10:342 (1802);

Whatever Happened To Congress, p 8; Dr. W. Cleon Skousen, emphasis added;

World Communism and Domestic Socialism, p17-18; Speech by Ronald Reagan, October 18, 1961;

Sold Down The Potomac - Our Constitution Betrayed, pg 7, Edwin Meese III;
Whatever Happened To Congress, p 16; Dr. W. Cleon Skousen

Dianne Gilbert is founder and Chairman of NH Center for Constitutional Studies, Inc - in its
7th year - founded in 1997. She says, ?Our mission is to put back into society what revisionist history has removed. We stand in firm support of America's glorious heritage; that she is the model of freedom for the world; to preserve that freedom Americans the ideas of our nation's founding fathers must remain dominant in our culture.? Their annual conference is held each September This year it will be held in Concord, NH at the Grappone Center (9/21/03). We will celebrate the 216th anniversary of the signing - to a theme of "Amend It - Don't Bend It!"

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