Three Unequal Branches of Government?

“It Ain’t What You Don’t Know that Gets You into Trouble. It’s What You Know for Sure that Just Ain’t So.” Do you remember “learning” that the U.S. has three equal branches of government? Well, you may “know” that, but it is wrong.

Under the collective alias “Publius,” Father of the Constitution James Madison – along with Alexander Hamilton and John Jay – wrote the Federalist Papers to explain the Constitution and promote its ratification. 

They did not want a new incarnation of the King of England. Madison explained the three branches of government in Federalist #51. He explained the need for checks and balances on power:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

But he emphasized that the three branches of government were NOT equal: “But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.”

In other words, it is Congress that forms the primary branch of government. Perhaps right now would be a good time for you to read the Constitution? The entire text is 4,500 words. At 225 words per minute, you can read it in 20 minutes.

“Promote the general Welfare” is in the opening sentence.

Article 1 is the largest and most detailed section at 2,200 words. Laying out the many specific powers of the legislative branch (Congress): Create laws. Raise taxes. Spend, borrow and coin money. Regulate commerce. Create infrastructure. Declare war. Fund armies, but never for more than two years at a time.

In contrast, Article 2 – on the executive branch – is just 1,000 words and gives very little power to the President. The President gets to command military forces, but only when Congress has called them into service by a declaration of war.

The president can negotiate treaties and appoint judges and other officials. But only with the consent of the Senate.

The president has no authority to create or destroy agencies or fund pet projects.

Article 3 has just 330 words describing the entire judicial system. The Supreme Court is barely mentioned, and is essentially posited as just the court of last appeal. In the 1803 case of Marbury vs. Madison, the Supreme Court declared it had the power to review laws for being Constitutional. Even though that power is not in the Constitution.

Everything unelected President Musk and his assistant Trump are doing is clearly illegal and unconstitutional.

It is also a distraction. Claiming to fight waste while lining their pockets, they are ignoring vast military waste while cutting vital programs that feed and educate children, protect the health of the citizenry and the environment, and prevent real consumer fraud. USAID is minuscule, but it saves millions of lives and shows U.S. humanity to the world. Russia and China will be happy to take our place. Why do Republicans hate America?

I am donating extra money now to organizations like Public Citizen and the ACLU, which are making court challenges to fight these illegal power grabs. But there is no guarantee this will save our democracy.

Judge Learned Hand warned in 1944, “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”

If we want to save our country as a democratic republic, we must all read the Constitution. Understand it. Take it to heart. Discuss it. And demand accountability.

We have real work to do to bring prosperity, justice and equal opportunity to everyone – and to invest in the future technology that will avert climate catastrophe. We must demand our government serve the public interest as laid out in the Constitution.