Why separation of powers matters: Is freedom inevitable?

Victor Joecks

The answer to that question is obvious but essential.

Freedom is not inevitable. Historically, freedom is a temporary condition enjoyed by only a fraction of the earth’s population.

Since freedom is not inevitable – indeed, the opposite is true; freedom is rare – we must ask, “Why are we free when others or not?”

As a nation (and state) of immigrants, we can’t claim we are free because of our genetics. Our nation (and state) is blessed with natural resources, but so is Russia. Wealth does not produce freedom.

In America (and in Nevada), we are free, because our founders recognized that, as Lord Acton stated, “Power tends to corrupt, and absolute power corrupts absolutely” and designed a government with three branches of government. While these branches of government each have different functions, they also have the ability to check the power exercised by another branch.

To ensure that no person or group would amass too much power, the founders established a government in which the powers to create, implement, and adjudicate laws were separated. Each branch of government is balanced by powers in the other two coequal branches: The President can veto the laws of the Congress; the Congress confirms or rejects the President’s appointments and can remove the President from office in exceptional circumstances; and the justices of the Supreme Court, who can overturn unconstitutional laws, are appointed by the President and confirmed by the Senate.

Because we’re so used to this system of government, it’s easy to forget how important this system is to ensuring freedom.

Government is needed to secure an individual’s right to life, liberty and property. But those wielding governmental power tend to corruption, which harms the very rights government was created to defend.

But using the checks and balances contained within three separate branches of government, you have a system where the tendency of government officials to amass power is checked by other government officials who usually aren’t interested in giving up their power.

It’s genius.

And it’s also why it’s so dangerous for one individual to work in two branches of government at the same time. Both the separation of powers and the checks and balances in the system go out the window if one person has authority in two branches of government. Instead of separating power, power is consolidated. Instead of one branch checking another, it could collude with it.

The idea of separating powers is so important that it’s explicitly required in Nevada’s constitution in Article 3, Section 1.

The powers of the Government of the State of Nevada shall be divided into three separate departments,-the Legislative,-the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others…

And that’s exactly why NPRI’s Center for Justice and Constitutional Litigation has sued Mo Denis, the Public Utilities Commission, and the State of Nevada for violating the separation-of-powers clause in Nevada’s constitution.

Even the smallest encroachment in the separation-of-powers clause opens the door for larger and larger encroachments. Hello, Wendell Williams, Chris Giunchigliani, and Mark Manendo.

Once you remove the bright-line standard, it’s only a matter of time before incremental “exceptions” render the provision meaningless.

And once you’ve removed the structural protections against, what James Madison called, “tyranny,” you’re left with a system of government dependent entirely on the character of its elected officials to keep it free from corruption and abuse of power.

As “power tends to corrupt, and absolute power corrupts absolutely,” this is a problem.

Freedom isn’t inevitable. Freedom is rare, and we should do everything in our power to protect the form and structure of our government – including a clear separation-of-powers provision – which provided us with freedom.