The People Create A Government of Laws (12 of 20)

The Parliament can do no wrong. But the Congress can, and does.

Anything that is done according to the will of the persons holding the sovereign power in a nation, constitutionally speaking, is right. The sovereign power in England rests with the Parliament. It does not rest with the Congress in the United States, but with the people. The acts of Parliament create the English Constitution. In the United States the people ordained and established the Constitution.

There is no function of government in England that cannot be performed by Parliament. It enacts laws, administers them, interprets them, and enforces them. It is judge, jury and prosecutor all wrapped in one and there is no check on the powers it may exercise.

Parliament passes a law which is the legislative function. Then it appoints from its membership ministers to administer and execute the very law which it has passed. This is the executive function. And finally it acts as a judge to interpret the law, or to decide upon the guilt or innocence of those charged by its ministers with violating the law. This is the judicial function. The House of Lords is the Supreme Court of the realm.

Government in England is designed to protect the people form the king. When the American colonies threw off the yoke of the English king, there was no longer a need to be protected from him. They were now a free and independent nation. But the fear of government was uppermost in the colonial mind, and so when the sovereign people determined to delegate the functions of government to the United States they imposed severe restrictions on the exercise of those powers even by their elected and appointed servants.

The American Constitution divided all the functions of government among three separate and independent departments. The Congress is authorized to make the laws, the executive to administer them, and the courts to interpret them. None of these departments can poach on the territory of the other. Each exercises only that portion of the sovereign power that has been delegated to it.

But that is not all. Not only are they independent in their spheres, but they also act as a check on the other departments in the performance of the functions assigned to such other departments. The president can veto legislation; two thirds of the Congress can override the veto. The Congress can pass laws and the president approve them, but a majority of the Supreme Court may determine that they are outside the authorized constitutional scope and therefore void. The justices of the court are appointed by the president with the consent of the senate, and funds for the support of both executive and judicial branches must be appropriated by the Congress.

Never under any circumstances can the same body of men both make the laws and administer them, or administer them and judge those who break them. None of the departments can delegate their functions to either of the other.

This system of checks and balances is an American development. It was expressed in the Constitution of Massachusetts, which was adopted in 1780 in these words: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

Daniel Webster said that this clause, “to the end it may be a government of laws and not of men.” was the greatest ever written in any constitutional document.

The virtue of the English government is in that it protects the people from the oppression of a tyrannical king. Its defect is that it does nothing more. An unrestrained Parliamentary government is a horror as great as an unrestrained executive. A despotic Congress might discard the Constitution and usurp power unto itself, and become like the English Parliament, if there were no checks and balances.

The genius of our government is that it protects the rights of the people from infringement by any branch of the government. This is government by laws and not by men.

This Article was serialized in 20 segments
which appeared on the editorial page (page 4) of
The Deseret News, 19 March 1945 through 10 April 1945.

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