The Separation of Powers

Written by Ira Einhorn:

The issue of the separation of powers and its unconstitutional violation by the passing of the Einhorn Law looms largely in my case.

It is also in the news at present as a result of the FBI’s invasion of the office of a member of the House of Representatives.

Thus it is worth taking some time to explain the concept which lies at the very basis of our form of government.

The modern history of the development of our form of government emerged from the desire to restrain the power of the rule of one, or in or most immediate history: the king. This attempt to restrain the king has a long history in England and reaches a climax with the actual trial and beheading of a king during the mid 17th century.

That action is as exemplary an act as one can find in recent annals of western political thought, for it asserts the right to question authority at the deepest level and must be seen as a precursor to both the American and French Revolutions.

It also stirred up much discussion about the nature and type of government that would be adequate in a society that was slowly leaving the remnants of its feudal ways and entering the industrial revolution.

Two concepts come up again and again in this discussion as it was held among political thinkers during the 17th and 18th century in England and Europe and then those gathered in Philadelphia to turn a confederacy of states into a more perfect union: A great concern to limit the power of the executive, as the ‘tyranny’ of King George was paramount in everyone’s mind; a way to maintain the separation of powers among the executive, legislative and judicial branches of the envisioned government, as a means of providing a check on all three branches by limiting each to a particular limited realm of power.

The debate both before and after the constitutional convention, held during a hot Philadelphia summer, is unequaled in the quality of discussion about how propertied free white men can best live together in freedom and tranquility.

It was a positive movement in spite of its neglect of the majority of people (Blacks, Indians, Women) who shared the space of the discussers.

The principle of the separation of powers was basic to the political construction that our founders created. It has remained so to this day. The principle has been protected again and again by both the federal and Pennsylvania Supreme Court.

The case law is clear: A law that violates the separation of powers is unconstitutional.

The Philadelphia DA’s office knew this when they proposed the Einhorn Law and the Pennsylvania Legislature knew this when they passed the law, but mob rule prevailed as it has prevailed since 9/11 in issue after issue as a frightened polity was stampeded into an egregious war and a Patriot Act that demeans the very basis of what this country has attempted to stand for before W and his neo-con crew took over.

We don’t do torture. We don’t spy on innocent citizens. We don’t massacre civilians. We respect the Geneva Convention.

WE BELIEVE IN A RULE OF LAW

Or we used to until W took over.

The reason for maintaining the separation of powers is easy to maintain on a practical level:

1. I was tried in absentia for reasons that were never explained.

2. My court decision became final.

3. Only a court can overturn a final decision.

4. If the legislature is allowed to do so that would allow someone who has lost a civil suit to go to the legislature and have a law passed that would overturn the losing decision.

5. But then the original winner could have another law passed, and

6. There would never be any closure.

That is why the Einhorn Law is unconstitutional: It attempts to overturn a final judicial decision with a legislative act.

By doing so it tramples all over the separation of powers and grinds judicial prerogatives into the dust.

Any honest judge would react in horror, as has every lawyer who has looked at the situation.

The law is a very formal enterprise. It is based upon precedent and accepted principles. It should be blind in the application of its principles. Ira Einhorn should not be treated differently than anyone else, publicity (most of it factually inaccurate) notwithstanding.

The law not the mob should rule.

Both the law and our legal tradition must be maintained.

The Einhorn Law flaunts these principles and casts distain upon the law just as W and his minions have brought distain to our history by lying about Iraq and fostering a context in which torture, massacre and denial of any due process can take place.

Our system has been placed under great strain by people who have traded expediency for honor, and usurped power that is not theirs.

We must have the courage to rid ourselves of these traitors to our heritage, just as the founders had the courage to rid themselves of King George.

What has been done in our name has demeaned our past; we must not allow it to demean our future.

Posted HERE: 09|12|08

From Ira's Official Website:

The democratization process that took place, in America and Europe during the period from 1776-1850 was severely restricted by gender, color and class. Numerous intellectuals supported these restrictions for they feared mob rule and the emergence of leaders who would utilize ignorance to lead the mob in directions that both the wealthy and the educated feared.
These predictions became a large part of 20th century history as the names Hitler, Stalin, Mao and Mussolini make clear. Ideological alliances, national socialism and communism has lead to tens of millions of people dying.
It is not a problem that is of easy solution: where the uneducated might be prêt to simple factual understanding: Obama was not born in the U.S. or a panel will decide whether the aged live or die; many intellectuals happily embraced.
Having lived for eight years among the uneducated, I am amazed at what people can imagine or believe. The human mind seems to be a machine for producing continuous nonsense, fed by a popular media that an educated individual can only wonder at.
The trash that so many are eating can only make them ill. What our senses take in is food. We eat sensation and that sensation has more effect upon us than the food we eat.
The TV diet is loathsome. Its effect will eventually be more apparent than the effect of the bad diet that has produced a population of increasing obese people.
We are what we eat: we become what we perceive.

Sad indeed. I worked in a L.A. county juvenile prison. The lack of individuality was sad. The lack of motivation to improve was not there. The diet was illness. This is a dire post by Ira.