Positive vs. negative authority

In constitutional republics the founding documents provide the positive basis for political authority. In the U.S. the Constitution delineates the authority of the executive, legislative, and judicial branches of government. Thus the President could do only what he (so far only he) is authorized by the Constitution to do: act as Commander in Chief of the armed forces, negotiate treaties “by and with the Advice and Consent of the Senate”, veto legislation, etc. Similarly, the judicial branch with its apex in the Supreme Court is authorized to hear actual cases and controversies only.

The Constitution incorporates “checks and balances” so that if a branch of government exceeded their authority, the other branches of government could stop them. The greatest authority is vested in the legislative branch, the Congress, but the process of passing bills is purposively challenging to prevent excessive use of that authority.

Thus stood the Republic for over two centuries. Now however that is ending. Congress is consistently divided on basic issues and members are reluctant to take a strong stand on any controversial matter. So Congressional inaction is the order of the day. The judicial and executive branches increasingly fill the gap and exceed their positive authority.

What we are seeing is that the executive and judicial branches can do anything that they can get away with. They are appropriating to themselves a negative authority: an authority that extends as far as the limits to what they can be prevented from doing.

The judicial branch “legislates from the bench” and invents rights out of thin air. The executive branch produces directives and regulations that are not based on authorizing legislation. The President wages war without the consent of the Senate and negotiates “agreements” instead of treaties so that the consent of the Senate is not needed; if the Congress cannot stop the President, the agreement is put into effect.

The Constitution is not working. The American people are deeply divided. A tyranny is developing and is even now here. It is a dark time. God help us.