Power and Liberty: Separation versus Tension

The Declaration of Independence says:
[W]henever any Form of Government becomes destructive of these ends [i.e., the securing of unalienable rights], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
When it comes time to do that, I hope that whoever has the charge of doing it will remember this lesson: separation of powers is not enough to guarantee liberty. What guarantees a space for liberty is not merely the separation of power, but a tension between the powers.

Consider, for example, AT&T's spying on the American people. "Hemisphere is a secretive program run by AT&T that searches trillions of call records and analyzes cellular data to determine where a target is located, with whom he speaks, and potentially why."

There is a clear separation of powers between AT&T and the police. If you contract with AT&T, it has a certain power over your life because it gains access to a lot of information about you. Still, AT&T has no police powers.

The police, meanwhile, have no right to demand access to AT&T's proprietary information without a warrant.

Does this protect you? No, it does not: AT&T is happy to provide the police with everything it knows, secretly, in return for a cash payment (one that you are contributing to yourself as a taxpayer).

If the government were to nationalize the telecoms, it would lose access to this kind of spying. A nationalized telecom would have to justify its spying by warrant. By outsourcing this spying to a non-government agency, the government actually increases its powers.

So too with the "death panels," below. A nationalized single payer system would presumably have to respect the claim that you could not be denied life (or liberty or property) without due process. It might not be much better -- the VA's system simply delays the due process so long that you die anyway -- but the corporate/government alignment provides them with immediate access to a power that they could never get through Congress.

For now, the hope lies in an intensification of the tension between the states and the Federal government. There, where the powers have competing interests, there is a chance that some space for liberty will come to be between them. Tension between powers is the thing that really works.

Merely separating the powers, without a competitive tension between the powers, aggregates them just as certainly as a failure to separate them at all. Indeed, in these two examples of corporate/government collusion, the power of the state increases beyond what it could ever legitimately do should it seize the private body and run it as a formal arm of the state.

8 comments:

Ymar Sakar said...

Consider, for example, AT&T's spying on the American people

Technically, anyone involved in anti internet "piracy" or what I'd like to call the MPAA mafia cracking down on unlicensed producers and distributors, has had a long time getting experience telling the government about peer to peer sharing, for lawsuits and cease and desist copyright letters to work.

The infrastructure and reason for their alliance is a bit complicated, but suffice it to say that they have many reasons to work with cable tv/internet ISPs, MPAA, and various Hollywood music money laundering conglomerates.

Their network is different from the police union, ACORN, SEIU union, TSA union, Demoncrat inner city plantation rings, but the profits are hard to deny in either case.

Recently, KickAssTorrents' host was found and arrested because he legally purchased something from an apple store, a music mp3 I believe. This allowed Homeland security to track him in Ukraine or some other European light country. Why Homeland security has agents in Apple, and why they can get people arrested overseas on laws mostly having to do with enriching Americans that sell movies and music overseas... well that's probably as problematic as asking why Clinton jailed that movie producer for Benghazi Libya.

Merely separating the powers, without a competitive tension between the powers, aggregates them just as certainly as a failure to separate them at all. Indeed, in these two examples of corporate/government collusion, the power of the state increases beyond what it could ever legitimately do should it seize the private body and run it as a formal arm of the state.

Or as I term, those who are evil will always find ways to game the system and convert Good to Evil. It's not something humans can fight, because humans can never render the problem, themselves, into less or more than human nature. If we could all become as ignorant and blissful as Adam and Eve before the knowledge of good and evil, or if we could lose free will and become animals, or if we could become 4th+ dimensional entities and thus perfect in our judgment and perception of time and space, then it wouldn't be an issue. Because humans are humans, "systems" do not work on them except to prolong the inevitable fall.

So long as there are righteous individuals, regardless of what god they claim to follow, the system can be made to work. Even Plymouth Colony recovered from misguided christian notions of communes and public shared property/assets. Although Jamestown might not have, as the case might have been.

The righteous can fix themselves, to an extent. The evil, however, only goes free fall into hell, which is exactly what the US is doing right now.

Anonymous said...

Grim writes:

When it comes time to do that, I hope that whoever has the charge of doing it will remember this lesson: separation of powers is not enough to guarantee liberty. What guarantees a space for liberty is not merely the separation of power, but a tension between the powers.


Mississippi responds:

That is why the 17th Amendment to the U.S. Constitution was so bad. Direct Election of U.S. Senators took away the state's voice in running the Federal Government, and gave us a bunch that think they are life appointees, a house of lords.

More tension between the two parties is better,
The State Legislature should be at the Senators throats most of the time.

That is what we call good conflict resulting in more liberty for the rest of us.
This is a necessary evil when dealing with issue of leaders with the addiction of too much damn power at their disposal.


douglas said...

More Government power is 'better'? I much prefer a market solution- things like this don't stay secret forever, and when they're found out, people should cut ties with ATT for instance, and do business elsewhere. Other businesses will take note and not be so quick to acquiesce to the next government fishing expedition. At least I hope people would do that. It's not like you're limited to one telecom option anymore. Also, in this day and age, when you say government agencies should have to at least give you due process- it's really not true- just look at the EPA and all it decides to do under the "make regulations and enforce them" permission given it by congress. Certainly not enough tension there.

Grim said...

I didn't say that the government should have more power. I said that in these cases, the separation without tension produces a concentration of power even greater than if the powers were not separated.

Market solutions are potentially great, but we should not use the phrase as if it were a sort of incantation. What would be great is if a telecom decided to offer the service of keeping my privacy secure from government intrusion to the greatest possible degree. I would pay for that service.

Of course, I can't afford to pay as much as the government would pay them to violate the promise.

Ymar Sakar said...

All the government has to do is to make a law that makes it mandatory to by into ATT's services. That would be a tell though, like Obamacare was a tell.

There's all kinds of special sweet heart deals the cable services have with government, mostly infrastructure related.

douglas said...

I'd like to think I'm not simply incanting something I believe to have been proven time and again and quite rational, but it's possible.

When you said:"If the government were to nationalize the telecoms, it would lose access to this kind of spying. A nationalized telecom would have to justify its spying by warrant. By outsourcing this spying to a non-government agency, the government actually increases its powers.
"


I took that to mean you were saying it would be a better government that nationalized telecoms. Perhaps I misunderstand, but reading it again, I see it the same.

You might not have enough to pay a large corporation to keep the government off your back, but tens of thousands of people like you comprise a market that in fact does have enough. You can get your email at Reagan.com, and they are big on maintaining your privacy (if you want to pay for your email and are worried about privacy- I'm not particularly concerned, at the personal level).

Grim said...

No, I didn't mean that it would be better if the telecoms were nationalized. I just meant that, in this one way, the formal separation of power (without a tension between the holders of power) leads to a greater concentration of actual powers.

There would, of course, be numerous consequences to the government nationalizing the telecoms. Most all of them would be bad. Even if in this one way it would be "better," that doesn't prove that "it would be better" simpliciter. Nor was I intending such a proof, or even such an argument.

douglas said...

Fair enough.