Separation of Powers
SEPARATION OF POWERS
SEPARATION OF POWERS. Separation of powers is a doctrine that is often believed to rest at the foundation of the U.S. Constitution. It holds that liberty is best preserved if the three functions of government—legislation, law enforcement, and adjudication—are in different hands. The modern idea of separation of powers is to be found in one of the most important eighteenth-century works on political science, the Baron de Montesquieu's The Spirit of the Laws (1748), which states that "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates … [or] if the power of judging be not separated from the legislative and executive powers." In Federalist No. 47 (1788) James Madison, commenting on Montesquieu's views and seeking to reconcile them with the Constitution's provisions, states that "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed [sic], or elective, may justly be pronounced the very definition of tyranny."
In truth, however, the Constitution does not strictly adhere to the separation of powers, as the three branches of the government—Congress, the president, and the courts—have some overlap in their constitutionally assigned functions. Thus, although Congress is charged with legislation, a bill does not become law until the president affixes his signature, and the president may veto the legislation, which can be overridden only by a two-thirds vote of the House and Senate. Similarly, the courts came to be recognized to have the power of judicial review, pursuant to which they may declare laws or executive acts to exceed the authorization of the Constitution, and thus to be null and void. Congress is given the power to impeach and try executive and judicial branch officials for misconduct; if found guilty, they are removed from office. Presidential appointments to the judiciary or to the cabinet require the approval of a majority vote in the Senate; treaties negotiated by the president require a two-thirds Senate majority. These and other provisions are the famed "checks and balances" within the Constitution, which are believed to prevent the exercise of arbitrary power by each of the branches.
Separation of Powers: Eighteenth-and Nineteenth-Century Issues
Nevertheless, whether or not the branches occasionally are involved in each other's assigned tasks, Montesquieu's idea that separation of powers should still be preserved whenever possible has been an important one throughout American history. In Hayden's Case (1792), for example, one of the earliest matters to be brought before the federal courts, the judges refused to perform the task a federal statute assigned them of reviewing applicants for Revolutionary War pensions. The reason was that their review was subject to overturning by the secretary of war, an executive branch official. The judges stated that to participate would be to compromise the independence of the judiciary. Similarly, in the early years of the Washington administration, the U.S. Supreme Court declined to announce advisory opinions because it felt its task should be limited to adjudication of actual cases.
Until about 1798 the federal courts decided cases based on the assumed existence of a federal common law of crimes, meaning that acts considered criminal in England would be considered so in the United States although no statute had been passed to prohibit them. Critics of this procedure argued that the American scheme of government required that the legislature first define a crime and affix a punishment before the courts could act. This matter became an important political issue in the period leading up to the presidential election of 1800, and the Supreme Court rejected the practice in U.S. v. Hudson and Goodwin (1812).
Separation of powers resurfaced from time to time in the nineteenth century as a cause of concern. It arose, for example, in the impeachment of President Andrew Johnson. Congress had passed, over the president's veto, the Tenure of Office Act (1867), which prevented him from replacing cabinet officials before the Senate had con-firmed their successors. Congress's aim was to ensure that Johnson was not able to replace officials whom Congress believed to be more committed to congressional policies than was the president himself. President Johnson fired his secretary of war in defiance of the statute, and was impeached by the House and brought for trial before the Senate. His defense was that the independence of the executive required that he have the power to fire as well as nominate executive branch officials, and his narrow acquittal on the impeachment charges at his Senate trial was generally seen as a vindication of the separation of powers principle.
Separation of Powers in the Twentieth Century
In the twentieth century, similar sporadic attention was paid to separation of powers. For example, when President Franklin D. Roosevelt sought legislative authorization for increasing the number of justices on the Supreme Court, he was accused of attempting to "pack the Court" in order to cobble together a majority of justices to end the Court's consistent pattern of rejecting key New Deal measures. The court-packing measure was never passed. One reason was the blistering criticism of the president for seeking to compromise the independence of the judiciary. Another was that the Supreme Court, probably taking the hint, reversed course on several key issues of constitutional interpretation. The principle of separation of powers was preserved in that the president's bill failed, although it was clear that the president had managed to change the course of Supreme Court adjudication. The Court itself sought to rein in executive authority on separation of powers grounds when in Youngstown Sheet and Tube Co. v. Sawyer (1952) it invalidated President Harry Truman's attempt to seize and operate the nation's steel mills without statutory authority.
In reaction to the growing military power wielded by the president in the late twentieth century and the tendency of the executive to involve the country's armed forces in foreign adventures, Congress passed the War Powers Act of 1973 as a means of subordinating the president to the constitutionally granted power of the Congress to declare war. Congress's concern with the exercise of executive power was also reflected in the passage, following the Watergate scandal, of the Independent Counsel Act of 1978, which created the Office of Independent Counsel to investigate executive misconduct and report on possible impeachable offenses to the Congress. Shortly after its passage, the law was challenged before the Supreme Court as a violation of separation of powers, on the grounds that the prosecutorial authority it created was, by definition, independent of the executive branch (to which branch the Constitution assigns the prosecutorial task) and that it involved members of the judiciary in the selection of the independent counsels. The act was upheld by a 7 to 1 vote of the Supreme Court in Morrison v. Olson (1988). Justice Antonin Scalia's lone dissent in that case (on separation of powers grounds) was belatedly recognized as prescient, following the operation of a brace of independent counsels appointed during the Clinton administration and the expenditure of many millions of dollars in investigations perceived as yielding few valuable results. When the Independent Counsel Act came up for renewal in 1999, and when even one of the most prominent independent counsels, Kenneth Starr, appeared before Congress to testify against it on separation of powers grounds, it was allowed to expire.
A final matter involving the separation of powers, and an important political issue in the late twentieth and early twenty-first century, was whether state and federal judges had, for most of preceding seven decades, been making rather than simply interpreting the law. Republican presidential candidates tended to run on platforms that were critical of the expansionist interpretations of the Warren and Burger courts and that obliged the nominees to rein in "judicial activism." When George W. Bush became president in 2001, his commitment to appoint judges in the mold of the Supreme Court's most conservative members, Justices Scalia and Clarence Thomas—justices publicly committed to altering much of the jurisprudence of the late twentieth century—raised separation of powers difficulties. The question of "judicial ideology" became the subject of congressional hearings, and none of the new president's nominees for the federal judiciary were con-firmed for his first nine months in office. Republicans tended to argue—invoking separation of powers rhetoric in support of the president's position—that the Senate was now seeking wrongly to dictate what the judiciary should do in particular substantive areas of the law. Key Senate Democrats responded that they were simply seeking to fulfill their constitutional obligations to review judicial nominees in light of their fitness for office. Two centuries after the writing of the Constitution, then, the tension between the principle of separation of powers and its imperfect implementation in that document, a tension with which Madison sought to grapple in Federalist No. 47, had yet to be resolved.
Fisher, Louis. Constitutional Conflicts between Congress and the President. Princeton, N.J.: Princeton University Press, 1985.
Kutler, Stanley I. The Wars of Watergate: The Last Crisis of Richard Nixon. New York: Knopf, 1990.
Presser, Stephen B. The Original Misunderstanding: The English, the Americans, and the Dialectic of Federalist Jurisprudence. Durham, N.C.: Carolina Academic Press, 1991.
Vile, M. J. C. Constitutionalism and the Separation of Powers. Oxford: Clarendon Press, 1967.
Whittington, Keith E. Constitutional Construction: Divided Powers and Constitutional Meaning. Cambridge, Mass.: Harvard University Press, 1999.
Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. Rev. ed. Lanham, Md.: Rowman and Littlefield, 1994.
Wood, Gordon S. The Creation of the American Republic, 1776– 1787. Chapel Hill: University of North Carolina Press, 1969.
Separation of Powers
Separation of Powers
The separation of powers is normally understood as a constitutional doctrine according to which political freedom is best guaranteed by separating the powers of government into legislative, executive, and judicial branches, each with its own jurisdiction. The purpose of this arrangement is to ensure that no single group or individual can control all the levers of power and, thereby, rule despotically. The legislature has primary responsibility for lawmaking, while the impartial interpretation of the law and the application of it to particular cases falls under the purview of the judiciary. The executive must obey the rules established by the legislature and enforced by the judiciary.
Charles-Louis de Secondat, baron de Montesquieu (1689–1755), provided the separation of powers with its canonical statement in The Spirit of the Laws (1752), but early intimations of the idea can be found in ancient Greece and Rome, where the systematic study of constitutions first began. Aristotle was the first comparative political thinker to notice that all constitutions have deliberative, judicial, and executive elements. Although he did not argue that government should be organized into separate branches, he believed that different types of constitutions (democratic, aristocratic, or monarchic) should be “mixed,” so as to counteract the tendencies to corruption inherent in all pure constitutions. Greek historian Polybius (c. 200–c. 118 BCE) used this theory to explain Roman history, as did Renaissance Florentine thinker Niccolò Machiavelli. The immediate precursor to the development of the separation of powers, however, was seventeenth-century English political thought, particularly the work of John Locke.
The separation of powers is an inherently conservative doctrine, in that it was intended to prevent the use of state power to promote radical social change, and yet it contributed to the rise of constitutional democracy. It offered a constitutional design that promised simultaneously to check monarchical abuses of power and limit the growing ambitions of legislators. It appealed to the nobility, who felt squeezed between overweening absolutist monarchs and pressures to expand popular participation. Although the separation of powers is not a theory of democratic government—it can be, and was, adopted by constitutional monarchies—it gave impetus to the spread of democracy by offering a way of reconciling the will of the people with the rule of law. As such, the doctrine was celebrated in the Declaration of the Rights of Man and the Citizen (1789) during the French Revolution, and it was the subject of intense debate by the framers of the Constitution of the United States.
Over the course of the nineteenth century the doctrine lost relevance, and its meaning was gradually restricted to a more specific distinction among types of democratic constitutions—specifically, presidential versus parliamentary government. Critics of Montesquieu charged that he had misread the English constitution, by failing to appreciate how in Westminster parliamentary systems the legislature and executive were fused in the cabinet and in the office of the prime minister. Such a fusion of powers made parliamentary systems elective dictatorships, or so claimed the critics. The Constitution of the United States, with its separate election of president and congress, came to be seen as the closest approximation of the separation of powers.
Montesquieu’s critics misunderstood the separation of powers, however. They imagined a watertight separation of branches of government in which no person or group could be a member of more than one branch at a time and no branch could encroach upon the powers of another. This view, which is more of a caricature than a description of any observed political system, had no expositors: No major constitutional theorist ever called for such an absolute separation. James Madison (1751–1836) was the first to reject this caricature, not only because it misrepresented Montesquieu, but, more importantly, because the partial encroachment of branches of government was necessary as a check against the abuse of power: Ambition should counteract ambition; checks and balances, rather than watertight separation of branches of government, would limit tendencies toward abuse of power. Madison was firmly of the same mind as Montesquieu in his conviction that only power can check power.
In the twentieth century the idea of the separation of powers continued to occupy a respected place in legal scholarship and jurisprudence, but lost appeal among social and political theorists. The development of the administrative functions of the state, especially with the expansion of the welfare state, placed more public-sector activity outside the sphere of legislation and into the hands of specialized agencies and experts. The rise of totalitarianism by electoral means in Italy and Germany suggested that the separation of powers was a feeble bulwark against modern antidemocratic and illiberal movements. Political freedom depended more on the degree of social and economic equality, the competitiveness of political-party systems, and a culture of constitutionalism, than on the constitutional separation of powers. Above all, as political science became a more scientific discipline, the language of the separation of powers seemed outdated and formalistic. A new view of institutions arose, building on economic and organizational theory, in which the separation of powers was understood to mean the separate election of executive and legislature in a presidential system of government.
The Anglo-American tendency to treat the separation of powers as a virtual synonym of presidentialism has been resisted by continental political theorists, especially in recent work on deliberative democracy. German philosopher Jürgen Habermas argued that the various branches of government in constitutional democracies correspond to different logics of argumentation, and their separation is necessitated by these discourses. The legislature is the chief deliberative body, yet it has little administrative power. The weakness of the legislature as an administrative body ensures that its deliberations are insulated from the temptations inherent in the exercise of such power and hence oriented toward the production of general laws for the public good.
The purpose of the separation of powers, according to Habermas, is to bind the exercise of administrative power to the deliberative power of citizens acting in concert. The executive administers policies consistent with parliamentary law; it represents the need for action within the rule of law. Equally important is the separation of power between legislature and judiciary. The role of the judiciary is to impartially enforce the law, and court procedures reflect this imperative. The fact that judges can deny citizens their most basic liberties requires that the rules and procedures for doing so be established not by the judges themselves but by the legislature as a body that represents the collective, deliberative power of the whole community. Critics of deliberative democracy object to its highly abstract and normative tone, while exponents see it as a promising beginning for a renewed discussion of the separation of powers.
SEE ALSO Constitutions; Checks and Balances; Democracy; Government; Habermas, Jürgen; Judicial Review; Judiciary; Locke, John; Parliaments and Parliamentary Systems; Totalitarianism
Habermas, Jürgen. 1996. Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechsstaats [Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy]. Trans. William Rehg. Cambridge, MA: MIT Press.
Montesquieu, Charles-Louis de Secondat, baron de.  1949. De l’esprit des lois [The Spirit of the Laws]. Trans. Thomas Nugent, with introduction by Franz Neumann. New York: Hafner Publishing.
Vile, M. J. C. 1998. Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis, IN: Liberty Fund.
Maxwell A. Cameron
Checks and Balances
Checks and Balances
Although scholars dispute the precise origin of the phrase checks and balances, the basic idea of limiting political power through various institutional means is both ancient and modern. In the ancient worlds of the Greek city-state and the Roman Republic, a mixed constitution of the one, the few, and the many provided checks on governmental power, whether in the form of a monarchy (the rule of one), an aristocracy (the rule of the few), or a democracy (the rule of the many). This scheme of balancing and checking power, particularly as expressed in the works of Aristotle, Polybius, and Cicero, was a powerful influence in early modern Europe during the period of the Renaissance as expressed in the works of Niccolo Machiavelli, James Harrington, and Algernon Sydney. This ancient and Renaissance concept of a mixed constitution may also be found in the eighteenth-century works of Charles de Montesquieu, Francis Hutcheson, and William Blackstone. All of these works influenced the founders of the United States, notably John Adams, James Madison, and Thomas Jefferson. The classic literary study of the political dynamics in this scheme is William Shakespeare’s play Julius Caesar.
The modern concept of checks and balances derives primarily from a mechanical view of the universe made popular in the seventeenth and eighteenth centuries by Galileo Galilei and Isaac Newton, among others. For Alexander Hamilton, in Federalist No. 9, a concept of “legislative balances and checks” was among the modern improvements in the science of politics. According to the modern view—as reflected in the United States Constitution—the legislative, executive, and judicial functions of government must check and balance each other in order to prevent any one branch of government from dominating the others. In the American scheme, for example, presidents may veto acts of Congress, but Congress has the power to override presidential vetoes by a two-thirds majority vote of both houses. Similarly, as established in the U.S. Supreme Court case of Marbury v. Madison (1803), federal judges may rule acts of Congress unconstitutional as occurred in the cases of City of Boerne v. Flores (1997) and Clinton v. City of New York (1998).
Checks and balances also refers often to issues of federalism, or the relationship between the national and state (or regional) governments. In the United States, for example, the Tenth Amendment to the United States Constitution grants “reserved” powers to the states. This has meant, according to the courts, the power of state governments in the United States to regulate health, safety, and morals. But the Fourteenth Amendment, ratified in 1868, checks this power by asserting that no state may deny any person “life, liberty, or property, without due process of law,” nor may a state deny “equal protection of the laws.” In a number of recent cases, the U.S. Supreme Court has interpreted these constitutional provisions so as to limit state prerogatives in such areas as capital punishment, affirmative action, privacy rights, and voting rights. For some, checks and balances also refers to modifications in American political practice outside of formal constitutional change or judicial interpretation. Among these modifications are the rise of national political parties, the expansion of presidential power, the creation by Congress of independent regulatory agencies (such as the Environmental Protection Agency), and changing technologies, particularly as these technologies make possible the more rapid exchange of information, such as through widespread access to the World Wide Web.
SEE ALSO Aristocracy; Constitution, U.S.; Democracy; Machiavelli, Niccolò; Monarchy; Separation of Powers
Montesquieu, Charles de. 1989. Montesquieu: The Spirit of the Laws. Trans. and ed. Anne M. Cohler, Basia C. Miller, and Harold S. Stone. Cambridge, U.K.: Cambridge University Press. (Orig. pub. 1748).
Pocock, J. G. A. 1975. Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition. Princeton, NJ: Princeton University Press.
Checks and Balances
CHECKS AND BALANCES
In its precise meaning, "checks and balances" is not synonymous with separation of powers; it refers instead to a system of rules and practices designed to maintain the separation of powers. The executive veto power is considered part of this system, along with the power of judicial review, the impeachment power, and other powers available to any of the branches of government for combating the encroachments of the others.
james madison formulated the American theory of checks and balances in response to the anti-federalist charge that the proposed Constitution would contain an overlap of governmental functions, violating the principle of separated powers. Expressing a pessimistic view of human nature, he argued in the federalist #10 that the way to avoid majority tyranny lay in creating a large national community of diverse and numerous economic interests, not in statesmanship or in religious and moral constraints. In The Federalist #47–49 Madison went on to argue that neither sharply drawn institutional boundaries nor appeals to the electorate could be relied upon to maintain the separation of powers. Both methods presupposed the virtues of official lawfulness and electoral nonpartisanship, virtues whose unreliability was attested by experience. Because such "external checks" were ineffective, said Madison in The Federalist #51, maintaining the separation of powers would require "internal checks" that linked the office-holders' personal ambitions to their duties. Officials would defend their constitutional prerogatives if they felt that doing so were a means to furthering their personal ambitions. "[A]mbition checking ambition"—not virtue—was the key to constitutional maintenance. And effective checks required each branch to have a hand in the others' functions. For example, the veto is the President's hand in the legislative function.
Madison knew, however, that this partial blending of power did not go far enough. Power might still be concentrated if all these branches were united in one interest or animated by the same spirit. Thinkers from Aristotle to montesquieu had taught that constitutions could be maintained at least partly through a balance of social groups such as estates or economic classes. But theorists with democratic pretensions could not institutionalize such social divisions. The problem for the Framers was to prevent a single interest from predominating in a society that had few official distinctions of status and class. Their answer was to rely on the different institutional psychologies of governmental branches whose personnel would represent the different constituencies and perspectives of a large and diverse society. Thus, Madison argued in The Federalist #62–63 that because of differences in age, period of citizenship, tenure of office, constituency, and, to a lesser degree, legislative function, members of the House of Representatives and Senate would pursue different policies with different consequences for the long term and varying impact on local, national, and international opinion. alexander hamilton wrote in The Federalist #70–71 that presidential types would be likely to seek the acclaim that attends success in difficult tasks, especially tasks requiring leaders to stand against and change public opinion. Such differences in institutional psychology, compounded by the federal features of the electoral system and the pluralism of an essentially democratic, secular, and commercial society, were expected to impede the formation of political parties disciplined enough to overcome the moderating influence of separated institutions.
The American system of checks and balances envisions strong executive and judicial branches. Experience had taught the Framers that popular legislatures were a greater threat to the separation of powers than were executives or courts. Accordingly, The Federalist #51 rationalized the bicameralism of Congress and the independence of the executive and judicial branches as means of weakening the naturally strongest branch and strengthening the weaker ones. This positive feature of the system complements its negative function of preventing concentrations of power. The Framers thus sought to achieve separation of governmental institutions without sacrificing the capacity for coordinated leadership when times demanded.
The system of checks and balances has worked well in some respects, but not in all. It has discouraged concentrations of power through centralized and disciplined political parties. Although government is fragmented in normal times, the system does permit central leadership in times of crisis, as the presidencies of thomas jefferson, abraham lincoln, and franklin d. roosevelt attest. It has also helped to create a remarkable degree of judicial independence without producing a judiciary seriously at odds with public opinion on any given issue for too long. The system has not worked so well in the case of Congress, which has undermined its own position by a practice of broad delegation of power to the executive and independent agencies. Many such delegations are necessitated by the problems and complexities that have brought the triumph of the administrative state. But far too many delegations are little more than acts of political buckpassing explained by the perception that the way to reelection does not lie in clear positions on controversial questions, but in constituency services and publicity that is politically safe. After the Great Depression and before the Supreme Court's decision in immigration and naturalization service v. chadha (1983), Congress compounded avoidable offense to the separation of powers when it tried to straddle the question of legislative responsibility, limiting many of its buckpassing delegations of power with various versions of the legislative veto.
Congress's experience shows that there is a limit to the ability of the system to maintain a constitutional arrangement through reliance on personal ambition. Personal ambition sometimes dictates surrendering institutional prerogatives. The same can be said when Presidents compromise firmness in anticipation of elections and when judges propose "judicial self-restraint" in response to threats like court-packing and withdrawals of jurisdiction. Despite the Framers' theory of checks and balances, officials must at some point respect constitutional duty as something other than mere means to personal ambition.
Sotirios A. Barber
Fisher, Louis 1978 The Constitution Between Friends: Congress, the President, and the Law. New York: St. Martin's Press.
Sharp, Malcolm 1938 The Classical American Doctrine of "the Separation of Powers." In Association of American Law Schools, Selected Essays on Constitutional Law. Vol. 4:168–194. Chicago: Foundation Press.
Vile, M.J.C. 1967 Constitutionalism and the Separation of Powers. Oxford: Clarendon Press.
Checks and Balances
CHECKS AND BALANCES
CHECKS AND BALANCES. The term "checks and balances" is often invoked when describing the virtues of the Constitution of the United States. It is an Enlightenment-era term, conceptually an outgrowth of the political theory of John Locke and other seventeenth-century political theorists and coined by philosophes sometime in the eighteenth century. By the time the U.S. Constitutional Convention met in 1787, it was a term and a concept known to the founders. To them it meant diffusing power in ways that would prevent any interest group, class, or region, singly or in combination, to subvert the republic of the United States.
James Madison described a republic as "a government which derives all its power … from the great power of the people." Checks and balances were indispensable, he said, because it was vital to keep access to the full authority of the government "from an inconsiderable proportion [of the people], or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might claim for their government the honorable title of republic" without its substance. Thus, he cautioned, it was necessary to check vice with vice, interest with interest, power with power, to arrive at a balanced or "mixed" government.
The balanced government derived from the brilliant compromises the founders drafted. First and foremost, a tyrannical federal government would be checked by limiting its sovereignty, granting sovereignty as well to the individual states. A host of crucial compromises followed this key one: federal power balanced among legislative, executive, and judicial branches; federal executive authority, in the form of a president elected every four years and accorded a veto, but with legislative ability to override; direct election of a president, but filtered through an electoral college of state representatives; legislative power checked in class and democratic terms by an elite upper house (Senate) pitted against a popularly elected House of Representatives; and a distant but powerful national judiciary headed by the Supreme Court, always appointed to life terms and understood from its inception to possess the power of judicial review over both executive and legislative actions.
Together this combination of checks and balances was meant to sustain the republic at all times, even in periods of great national stress. No political group, economic or social class, or region possessed the access to power capable of dominating all others in this most successful of "mixed" governments—which is not to say that all of the compromises made by the founders were just in themselves, as in the case of explicitly recognizing the constitutionality of slavery in an effort to placate some mostly southern delegates.
The secret of the system of checks and balances lay in its inherent flexibility of interpretation over the generations and the ability of the Constitution to mold itself to the times even as it retained its inherent invincibility as the law of the land. By the late twentieth century some Americans feared that this flexibility was a grave weakness, encouraging permissiveness in the national courts and a penchant for aggrandized reform in both the executive and legislative branches. These critics, adhering to a doctrine of strict interpretation and a significant lessening of constitutional flexibility, have sought as a re-course to pin down the founders' "original intent" in order to render the U.S. Constitution less open to interpretation or adaptation over time.
Brant, Irving. James Madison. 6 vols. Volume 3: Father of the Constitution, 1787–1800. Indianapolis, Ind.: Bobbs-Merrill, 1950.
Jensen, Merrill, and Robert A. Becker, eds. The Documentary History of the First Federal Elections, 1788–1790. 4 vols. Madison: University of Wisconsin Press, 1976–1989.
Separation of Powers
SEPARATION OF POWERS
The division of state and federal government into three independent branches.
The first three articles of the U.S. Constitution call for the powers of the federal government to be divided among three separate branches: the legislative, the executive, and the judiciary branch. Under the separation of powers, each branch is independent, has a separate function, and may not usurp the functions of another branch. However, the branches are interrelated. They cooperate with one another and also prevent one another from attempting to assume too much power. This relationship is described as one of checks and balances, where the functions of one branch serve to contain and modify the power of another. Through this elaborate system of safeguards, the Framers of the Constitution sought to protect the nation against tyranny.
Under the separation of powers, each branch of government has a specific function. The legislative branch—the Congress—makes the laws. The executive branch—the president—implements the laws. The judiciary—the court system—interprets the laws and decides legal controversies. The system of federal taxation provides a good example of each branch at work. Congress passes legislation regarding taxes. The president is responsible for appointing a director of the internal revenue service to carry out the law through the collection of taxes. The courts rule on cases concerning the application of the tax laws.
Under the system of checks and balances, each branch acts as a restraint on the powers of the other two. The president can either sign the legislation of Congress, making it law, or veto it. The Congress, through the Senate, has the power of advise and consent on presidential appointments and can therefore reject an appointee. The courts, given the sole power to interpret the Constitution and the laws, can uphold or overturn acts of the legislature or rule on actions by the president. Most judges are appointed, and therefore Congress and the president can affect the judiciary. Thus at no time does all authority rest with a single branch of government. Instead, power is measured, apportioned, and restrained among the three government branches. The states also follow the three-part model of government, through state governors, state legislatures, and the state court systems.
Our system of government in the United States is largely credited to james madison and is sometimes called the Madisonian model. Madison set forth his belief in the need for balanced government power in The Federalist, No. 51. However, the concept of separation of powers did not originate with Madison. It is often attributed to the French philosopher baron montesquieu, who described it in 1748. At the Constitutional Convention of 1787, Madison played a leading role in persuading the majority of the Framers to incorporate the concept into the Constitution.
Checks and Balances
Checks and Balances
Checks and balances refers to a system of separation of powers within a government. The framework of separation is intended to balance governmental power to prevent any part of the government from overreaching its defined responsibilities. The Constitution of the United States, written in 1787 and adopted in 1788, established a system of checks and balances for the U.S. federal government.
Systems of government throughout the world use different systems of checks and balances. The Constitution defines three divisions of government for the United States: the legislative branch , the executive branch , and the judicial branch . Each branch is responsible for a separate governmental function, and the conduct of each branch can be evaluated and challenged (or “checked”) by the other two branches, at least to some extent.
The three branches
The legislative branch is made up of two separate chambers of Congress: the Senate and the House of Representatives. Congress is responsible for making the nation's laws. Each chamber checks the power of the other, as both need to approve bills (proposed laws) for them to become laws. The legislative branch as a whole is checked by the powers of the other two branches. The judicial branch has the ability to decide that a law is unconstitutional and therefore invalid. It also has the power to interpret what a federal law means. The executive branch has the ability, through the president, to veto, or reject, a law passed by Congress. A presidential veto can be overridden by a two-thirds vote of Congress.
The executive branch, led by the president, has the responsibility of enforcing the nation's laws. The armed forces as well as many administrative and regulatory departments and agencies are under the control of the executive branch. The judicial branch checks the executive branch by interpreting the laws in legal cases involving the executive branch and its departments. The legislative branch balances the executive branch by overriding presidential vetoes, approving presidential appointments, and using the power to impeach and remove executive officers who commit certain crimes.
The judicial branch consists of a system of federal courts, with the U.S. Supreme Court at the top. The Supreme Court has the responsibility of hearing cases that involve constitutional questions and federal laws, and it makes decisions based on its interpretations of those laws. The executive branch has the ability to appoint judges as openings occur. The legislative branch has to approve those appointments and has the power to impeach judges if needed. By using amendments to rewrite laws, Congress has the power to change the effect of a court's interpretation of the laws.
The authors of the Constitution embraced the system of checks and balances, knowing the danger of abuse of governmental power. By establishing three branches of government, they attempted to ensure that no single branch would wield more power than the others by compelling each branch to be checked by the other two. Over time, interpretation of the Constitution and laws has created a complex system of ways in which the checks and balances function.