Is There a 4th Branch of Government that Can Limit the Government Itself?

When we were kids in school, we were all taught that there were three branches of government, namely, the Executive, the Legislative and the Judicial branches.  This concept has probably been the way it’s been taught since 1789.

Although there is a Fourth Estate, which is an historical reference to the press during the period surrounding the French Revolution, our own media prefers to describe themselves as the fourth branch of government.

Of course they are not part of the government. They never were, and they never will be.  And no matter how bruised their egos might get by that assessment, it will never change. But they do have a role in communicating an unbiased view of what the government is doing.  It should be acting as a means of reporting government wrongdoing to the voting public, or describing the actual results the nation might be suffering due to poor policy planning.

But that’s not happening, so the press is not functioning the way the founders hoped it would.

Today the press is really just a servant to the Executive branch, but only when there’s a Democrat in the White House.  When the White House is occupied by a Republican, then the press becomes the propaganda arm of the Democratic National Committee.  But in no way are they the fourth branch of government, with the responsibility of investigating and exposing wrongdoing by either party.

There is, however, a counterbalance to the unconstitutional expansion of the Federal government that no one recognizes as such, an invisible branch of government if you will.  It is remarkably powerful, yet is rarely thought of as such. It is able to spend vast sums of money without any Congressional oversight or the need for any appropriations from Congress. In fact, it controls and spends about one-third of all the taxes collected in this country.  It is about as diverse as can be imagined, and it is significantly more responsive to the citizens than the three named branches of the Federal government combined.

This invisible counterweight is, collectively, the fifty States of the Union.  The fact that their muscle fiber has atrophied over the years notwithstanding, collectively they have the potential to be a powerful political force for limiting Federal expansion beyond the bounds established, by these very same states, in the Constitution.  Its current state of atrophy can be, and is being, overcome, as we have seen by the fact that the Attorneys General of twenty-six states have worked together to file suit in Federal courts in making their case against Obamacare.  No court in the nation would dare to claim that the attorneys representing more than half the states of the union didn’t have the proper “standing” to pursue their case.

There are many reasons that the states allowed their political muscle to deteriorate.  Prior to 1913, and the passage of the 17th Amendment which provided for the direct election of Senators rather than their appointment by the legislatures of each respective state, there was a strong state’s rights element within the Senate which could block a great deal of the tendency for the federal government to grow exponentially.

With the passage of the 17th Amendment, each Senator was no longer beholden to his or her state, but to a plethora of special interest groups which funded his or her election campaign.  These special interests inevitably ignored innate differences in interests that might have existed among the states or any differences between the several states and the Federal government, and lobbied for national action to benefit themselves no matter where they might be doing business, or organizing labor, or practicing law.  And these always damned “special interests” would have been all in favor of the 17th Amendment’s passage, since these special interests, for a relatively modest sum, could then, by financing direct election campaigning, influence 61 sitting Senators to vote in favor of their particular agenda.

On the other hand, it would be nearly impossible, both monetarily and logistically, to influence the number of state legislators needed to influence the senatorial selection process.  Instead of trying to influence just 61 politicians, these special interests would have to influence a total of 3,741.  No kidding, really.  You could look it up.  There are a total of 7,382 legislators, and with a target of 50% (plus one vote per state), these special interests really would need to control nearly four thousand legislators, as opposed to funding, at most, thirty-four senatorial campaigns every other year.

It’s doubtful that Jack Abramoff could manage it.  So the there is a real doubt that Greenpeace, the American Bar Association or the AFL-CIO could pull it off.  Thinking about it puts the very idea in the same class as trying to herd cats.

Nearly simultaneous with this sea change in the senatorial selection process, the United States elected Woodrow Wilson, who served as President from 1913 to 1921.

Although his predecessor, Theodore Roosevelt, leaned somewhat in the direction of the Progressive Movement, Wilson became the poster child for the Progressive political philosophy that (a) viewed the Constitution as a quaint, but obviously obsolete, scrap of paper, and (b) felt that a strong, centrally controlled command-and-control structure for every facet of American life was the only rational way to govern, since they also believed that the average American had the same intellectual abilities of the average gerbil, and that they were incapable of managing their own interests.  The implementation of this Socialism-Progressivism-centralized governance was aided by the outbreak of World War I, the so-called “War to End All Wars”. (For trivia buffs, while that phrase is commonly attributed to President Wilson, he actually plagiarized it from a work written by H.G. Wells.  Oh, well, H.G. Wells did write fiction.)

How did the war aid the Progressives?  It gave them political cover to pass amendments to the 1917 Espionage Act.  These amendments, collectively, are commonly referred to as the Sedition Act, which forbade the use of “disloyal, profane, scurrilous, or abusive language” about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt. Those convicted under the act generally received sentences of imprisonment for 5 to 20 years.

Not exactly the kind of law that prompts state Governors to speak out against encroaching Federal power grabs.  Even if they avoided arrest and incarceration, they would have been smeared as being “unpatriotic.”  Sound at all familiar?

Apparently Barack Obama is not the first sitting President who has a problem with parts of the First Amendment.  For Wilson it was just free speech, for Obama it appears to be free exercise of religion as well.  That pesky First Amendment really cramps a Progressive’s style.

Like all politicians, state legislators tend to spend more than they generate in tax revenues, and while Obama and Company has the First National Bank of the People’s Republic of China as their primary source of funds, the states have been broken to heel by the First Magical Bank of Congress and the White House.

Again, a situation that reduces the chance that any state or states will act to stop the blatant use of someone else’s money to buy re-election votes back at home.

So we have a sort of invisible, rarely named source of resistance to the three named branches of government, which is co-equal in terms of authority to the other three, and specifically identified as such in the Tenth Amendment, which reads:

 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 Yet frequently our state Governors and state Legislatures are acting as if this sentence is of interest only to academics.

And we keep re-electing these people.

While 2012 is a crucial election in terms of replacing an incompetent President and installing another that will, hopefully, be somewhat closer to competent, it is also critical that we, nationally, address the situation within the borders of our own states.  Absent the repeal of the 17th Amendment, we will continue to have lap-dogs of the various special interests sitting in the Senate, and they will continue to spend money that we have to borrow to fund crony-capitalist get-rich-quick-on-the-public-dime schemes, and enslaving us to bureaucrats that are completely out of control.

Perhaps the states, acting in concert, can force a national conversation about the desirability of repealing the 17th Amendment.  It would take a great deal of political courage to say to the American people “Hey, we screwed up.”  Of course the only surprise in that announcement would be that someone actually said it out loud.

That’s what it took to repeal Prohibition, which, by the way, was the 18th Amendment. (In terms of amendments, it seems like they were really on a roll during that decade.)  It was passed during the Wilson administration, and was repealed in 1933.  It only took 20 years for them to recognize their mistake.  We’ve already had the 17th for over 100 years.  Do you think it might be time to admit we, too, made a mistake?  If we are at all concerned about the runaway expansion of the role of the Federal government in our lives, I would think that it is time for the repeal, and past it.


About Jim Yardley

Retired after 30 years as a financial controller for a variety of manufacturing firms, a two-tour Vietnam veteran, and independent voter.
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