Constitutional co-equal branches of government is a fantasy when same population elects each

The original concept of the US constitution was for there to be different branches of government each with enumerated and exclusive powers so that they would serve as checks and balances against each other.   Although many original intentions of the constitution have been replaced with fresher interpretation, this concept of checks and balances among coequal branches persist as a defining characteristic of the constitutional form of government.

The co-equal branches are Congress (itself divided into two co-equal houses with separate enumerated powers), the executive, and the judiciary.  I believe the judiciary and in particular the Supreme Court has taken on more relevance than originally intended.   The original thinking was probably that the coequal struggle to be between the House of Representatives, the Senate, and the executive branch.

Many current debates invoke the concept of co-equal powers to defend one side or the other.   Recent examples include the debates over immigration reform and the executive branch’s objection to the House’s invitation for Israel’s prime minister to address Congress.   The issues are beside my point that each side is pointing to the constitution’s wording or silence to defend their case that they can act independently of each other.   We have a government co-equal branches that are meant to argue with each other.

As I noted earlier, I’m a bit confused about what branches are coequal.   There may be 3 or 4 branches.   There are two options for 3 branches.   One division consists of congress, executive, judiciary.  Another division is the house of representatives, the senate, and the presidency.   The option for four branches is to combine them all as coequal.   The latter interpretation appears to be more modern as illustrated in the immigration debate that still respects a bill passed by the Senate but not the House during the now expired congress.   In other words, the Senate has a voice that can be heard independent of the concurrence of the House.  The two houses are coequal with the executive and the judiciary.    I realize this is not technically correct, but it appears to be effectively how we conceive the branches in popular debates.   The checks and balances consist of the House, the Senate, the President, and the Supreme Court arguing with each other.

Although the original intention for the government was to have separate independent branches, each with enumerated powers, the notion that they should check and balance each other appears puerile in modern times, or at least to myself.   The modern practice of this anciently-defined government is such that the concept of coequal independent branches is an empty concept.   Instead of the original notions of separate interlocking components that must operate together to produce a larger system of government, the modern notion appears more like four different self-contained forms of government.   The debate between branches does not appear to be the a dialog to converge to a mutually satisfying solution, but instead it appears to be a struggle for which of the four forms of government will prevail.

One form of government is the government by judges that are few in number and have lifetime appointments.   Their recent governing concerning the allowance of same-sex marriage is an illustration of independent governance by judges.   Although government by a few judges for life is far from any concept of democracy, there are many issues where the population accepts or even demands to be governed by the judges.   In these cases, the judges are not coequal with any branch.  They constitute a separate government with sovereignty over certain type of issues that they choose to rule.

As an aside, I note that the current government by judges (Supreme Court) is not much different from government by data in that the rules are derived from evidence and algorithms.  In the case of judges, the evidence and algorithms are largely inaccessible to public, but it seems the public accepts that.   Dedomenocracy would rule similarly but make the data and algorithms available to the population.  This accessibility of data and algorithms may be a good way to distinguish government by judges from government by data.   Otherwise, they operate very similarly.

The other form of government is a representative democracy with three concurrently operating implementations.   All three of these governments (the House of Representative, the Senate, and the President) have representatives elected by the same voting population.   On many election days, each voter will elect his representative to each of these governments on the same ballot.

In the original concept of the government, the three representative bodies (House, Senate, and president) had distinct electorates.   The popular vote determined the representatives in the House.   The legislatures of states determined the 2 representatives to the Senate.   And a temporarily constructed elector college selected the president.   The distinct electorates for each produced a natural competition of interests that would serve to check and balance each other.   The branches checked each other because they answered to distinct electorates.

In contrast to the original concept that the population would only vote for the representatives in the house, today’s government provides representatives to all three branches (House, Senate, and President) to represent overlapping constituencies because they are each decided by popular votes.  Although technically the President is still involves a ceremony involving the electoral college, the representatives to this college are restricted from making decisions independent of the popular vote and there is even a movement to commit electors to abide by nation-wide popular vote.   When that happens, all three branches will become fully redundant in terms of being represented by the population.

As a result, the modern US government consists of three implementations of a representative democracy: one where representatives come from roughly equal-population districts, one where representatives come from arbitrary geographic boundaries of individual states, and one where there is just one representative for the entire country.

Either one of these implementations can be by itself a legitimate form of representative democracy.

Currently, we discuss political debates in terms of party platforms.   Underlying these ideological debates may be a more fundamental debate about which implementation of the representative democracy is authoritative.  Instead of the checks and balances driving the debate, we have an argument about which form of representative government is most legitimate and thus should have priority over the other forms.

During the period of 2009-2014, the Senate allied with the Executive branch to make the choice of legitimate representative government more clear.   During this period, especially from 2011-2014, the two forms of representative democracy fighting for domination were the House of representatives popularly elected based on changing districts so that each district has approximately the same population, and the Senate plus Executive chosen by popular vote of fixed geographic boundaries.

This debate reduces to which is the best form of a representative democracy: based on multiple districts of equal populations, multiple districts of fixed geographic boundaries, or one nationwide district.   Although individuals are providing the essential votes for each of these options, they are also individually forming an opinion of what form of government suits them best.  Some prefer a single national district, others prefer districts that match the states’ boundaries, and the rest prefer the more local districts of equal population sizes.

The different branches are redundant in terms of representing the same electorate.   We could choose just one of these branches and retire the other two and still end up with a legitimate form of representative democracy.   Making this choice may improve national debate because we will eliminate the redundant implementation of representative democracy.

As I mentioned, it appears that individuals are making a choice about what branch they assume is the one that should prevail over the others.   This decision has already been made about the issues that fall in the sole jurisdiction of the courts.   The remaining issues need a representative democracy but either implementation will serve that purpose.   Individuals are coming to competing conclusions as to which implementation they prefer.

My impression is that there is an age bias in this choice where the implementation demonstrated by the House of Representatives is favored by generally older people and the implementation demonstrated by the Senate is favored by younger people.   As mentioned, in recent years the Senate and Presidency operated as a single branch and this makes sense because they are supported by the same sub-population.   However within this sub-population, some would prefer a single representative for the entire country while others prefer staggered terms of two representatives from each state.  There may be a generational element to this debate over what is the best approach for representative government.

A counter argument to this picture is what happened during 2009-2010 when the House strongly cooperated with the Senate + Presidency.   It is easier to explain this cooperation in terms of shared political ideology, because all three branches had Democratic party majorities.   However, even during this period the Democratic party members of the House objected to the party endorsed legislation.   For example, the affordable care act (ACA) barely passed the House with the minimum margin (34 Democrats voted against it) and only then after last minute concessions concerning abortion-funding protections.    The coalition of the House and Senate seemed to be a very fragile one even though they had majority rule by the same party.

I suspect that fragility has to do with a deeper difference in opinion of which branch is the more legitimate one.  Even today, there are arguments that the ACA was illegitimate because it did not originate in the House.  Although this argument mostly is raised by Republicans, I suspect many House Democrats would have preferred a bill that originated in the House, not just because they had an ideologically better plan, but also because they feel the the House itself is the more legitimate form of representative democracy.

My hypothesis is that we have three redundant implementations of a representative democracy operating at the same time.   This presents a condition similar to border territories contested by separate sovereign governments.   However, unlike the typical international disputes where the neighboring countries have their own undisputed territories, our condition has no natural homeland for the competing forms of government.  The entire country is one big contested territory for three or four redundant forms of government.   Each form of government has a constituency that prefers it over the others, but these constituents are distributed throughout the same territory.  Neighbors or even family members may have different loyalties toward the form of representative democracy they prefer.

Today, we typically attribute the increasing contentiousness of modern political debates to ideological differences, such as Republicans vs Democrats, or Conservatives vs Liberals.   Sometimes the more hyperbolic groups suggest we are nearing a point of violence between the two sides.   I doubt that ideological differences will be sufficient to motivate a civil war or even widespread disruptive protests and riots.   However, I can see this happening over the debate of what form of representative democracy should prevail over the other.   This debate is much more like two states contesting a territory where the ultimate answer is that one side or the other should control that territory.

The entire country is contested territory for 3-4 redundant forms of government, each one can legitimately operate independently (and far more efficiently) without the others.  Eventually, there will need to narrow that number down.

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2 thoughts on “Constitutional co-equal branches of government is a fantasy when same population elects each

  1. Pingback: Internal conflict consequences of parallel governments of operations and debt service | kenneumeister

  2. I don’t think the branches are co-equal. Consider:
    1.Congress makes laws that require the President to act in certain ways, the executive cannot instruct Congress or make it behave in a particular way. It can also prevent Presidential actions by cutting off funding
    2. Although the President can veto a law, Congress can pass laws over a veto, the President cannot prevent Congress from imposing its will on him
    3. The President is required to report to Congress, but not the other way around
    4. Congress can remove a President, but a President cannot affect the makeup of Congress
    5. Congress owns the armed forces, when the President acts as commander-in-chief it is of the armed forces that belong to Congress
    6. Congress declares war, not the commander-in-chief
    7. Congress and the states can amend the Constitution, the President plays no role in that process; conceivably, Congress can alter the powers of the President via amendment but the President has no corresponding power over Congress

    I don’t think this adds up to equality of the two branches. We are confusing independence with equality.

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