America and the Presumption of Tyranny

by ursavoice

Peter Kovalsky
J.D. Candidate 2013, UCI Law

Central to the establishment of this country was the system of checks and balances, designed to prevent the aggregation of excessive power in any one government branch. The United States Constitution draws the blueprint of a clever machine, just efficient enough to be functional and just inefficient enough to counteract the momentum of power.

One of the core checks on the legislative branch has been judicial review. Throughout our history, many have argued against it, claiming that it gives too much power to people who were not elected to their positions and who are essentially unaccountable. Supporters of judicial review have argued that it is a necessary means to the end of checking the power of Congress (and sometimes of the President). It is telling that some of the central arguments both for and against judicial review hinge on those same distribution-of-power considerations.

Indeed, as a nation born of revolution and at the time lacking any guiding history of its own, it is not surprising that America has become obsessed with checking the powers of government as an end in itself, as a good in itself. Our culture is gripped by the paranoid fear of external powers, of anything that asks us to limit our independence. Our personal and national politics are guided by the presumption that power, left unchecked, intrinsically tends toward tyranny.

But what do we gain by this? Are we better off? Who wins, when judges evaluate the constitutionality of laws based on the limits on power rather than their merits or desirability? Who wins when people support or reject proposed legislation based on who proposed it rather than what it is intended to do? Are countries and cultures concerned more with what the government does than with what it may not do plagued by tyranny and abuses of power? Do the people of the United Kingdom, which lacks judicial review of legislative action, suffer from greater oppression than those of the United States? Do the people of countries that ostensibly have systems of checks and balances, like Russia, face less oppression?

But it is patently ludicrous to get upset because the wrong person or the wrong branch of government tries to help you, and it is patently ludicrous to smile and take it because the abuse comes from the “right” place.

Have we in our zeal to minimize potential harms made a practice of throwing the wheat out with the chaff? Perhaps the focus should be less on the powers of government and more on the people entrusted with those powers, less on what can and cannot be done and more on what should be.