Dysfunction in Montesquieu’s Paradigm

The independent judiciary has come to be viewed as sacrosanct among Western-style democracies, especially those in presidential systems based on true separation of powers and in those parliamentary systems where the power of constitutional review has been wrested from the legislature and vested in the courts. However, that perspective is far from universal; consider for example the cases of the United Kingdom and Israel where parliamentary sovereignty is unchallenged.

The recent abuse of power by the Egyptian judiciary, whose antipathy for the Arab Spring revolution and continuing ties to the Mubarak dictatorship let it to attempt to scuttle resulting democratic reforms, highlights the need for political scientists interested in the political engineering of functional sociopolitical institutions to more carefully consider the proper role of the courts in the governmental process. The issue has been crucial in the United States since the adoption of the critically flawed Constitution of 1787 which virtually ignored the issue of constitutional interpretation, a flaw that inevitably led to the US Civil War and which has never been fully corrected.

In many more modern democracies, both presidential and parliamentary, the issue has been addressed with the separation of governmental – related functions from those involving resolution of other social disputes and vesting them in one or more independent political institutions, particularly special constitutional courts and councils of state, the former charged with constitutional interpretation and the latter with inter – branch conflicts and political corruption.

Those concepts seem sound and particularly important in the context of the increasingly dysfunctional, over – politicized legislative and judicial branches in the United States, a situation that with the “right” president could easily lead to increasing usurpation of power by the executive branch resulting in defacto dictatorship; dictatorship not in the pejorative sense with which the term has come to be understood, but in the sense of the fusion of all aspects of political power in one man or one institution. Given the currently inept House of Representatives and Senate, and the aggressive, non – neutral judiciary whose members at every level are intrusively imposing their social agendas, meaningful discussion geared to institutional reform is essential if we are to avoid surrender of such political evolution to careless fate.

Nature abhors a vacuum as does politics, and that is a threat history has demonstrated time and again, but since we don’t study history but rather propagandist fiction labeled as history, that is one among many lessons we seem incapable of learning.

It’s time for many changes if we as a People are truly interested in controlling our own destinies.
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