Myth #1: Three Co-Equal Branches of Government

This is the first in the series: 25 Myths of the U.S. Constitution.

Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.

By Douglas V. Gibbs

Chances are that the majority of the people reading this article have been told either by teachers in school, the media, or some other source, that in the United States the federal government consists of three co-equal branches. This, the claim goes, gives the three branches of government the equal opportunity to provide checks and balances against each other. Sounds fine and dandy, right? But what does the Constitution say?

To determine the answer, we must also ask, "What does co-equal mean?" Each branch of government has specific authorities, and while some are concurrent, generally the separation of powers is pretty specific. To establish who has what powers, the first thing we should look at is Article I, Section 1.

Article I, Section 1 reads: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

In order to fully understand this clause, we must pay close attention to the language used, and the context of the time period.

The first word is "All." The last time I checked, the word "all" means "all." The meaning was the same then as it is now. "Legislative Powers" are the powers to make law, modify law, repeal law, reinstate law, and so forth.

"Herein" means, without meaning to be silly, "Here In." Here in what? This Constitution.

"Granted" is a term that is being used here to describe the act of transferring powers from one group to another. Specifically, the States held all of the powers up to that point. After events like Shays' Rebellion, the new country realized that the confederation of states, or union, that consisted under the Articles of Confederation, was too weak to deal with attacks against the union. In Shays' Rebellion the weak confederate government was unable to fund an army to put down the insurrection, and it took the merchants in Boston to make it happen. Not only was the government too weak to protect the union, but it depended upon the "fat cats" (as some politicians would call them) of the industrial cities to accomplish the action. Therefore, it was apparent that a stronger government than what already existed was needed. This alone should clarify the part of the Preamble that states "in order to form a more perfect union." So, in order to allow the new federal government to have the powers necessary to protect, preserve, and promote the union, the States transferred, or "granted", some of their powers to the new government. In short, "granted" means that the States legally transferred some of their authorities to the new federal government so that it may properly function as designed.

"Vested" means that these transferred powers shall be given to the Congress. The recipient of all of these legislative powers is the Congress of the United States.

Therefore, the main strength of the federal government is its ability to make law, modify law, and repeal law - and "all" of those powers were given to the Congress. . . not the Executive Branch, and not the Judicial Branch.

This means that anytime the President modifies law with an Executive Order, or judges legislate from the bench, they are acting unconstitutionally. Legislative Powers belong to the Legislative Branch, and the Legislative Branch only.

Score one point for the Legislative Branch.

One will notice that our government is set up in such a way, that the President can't do much without the okay of the Senate, or both Houses. The few sole powers of the President are still subject to the approval of Congress. Treaties require Senate approval, and appointments of justices (and other officers) require Senate approval as well. The power to "make war" can still be stopped because the House of Representatives has the power of the purse strings (Article I, Section 7, Clause 1). The President may be able to launch a war, but if Congress doesn't like it, all they have to do is defund it.

Score another few points for the Legislative Branch.

When a bill moves through Congress, if the President does not like the bill he can veto it. But, Congress, with 2/3 vote, can override that veto, and make the bill law anyway.

Score yet another point for the Legislative Branch.

The House of Representatives also has the power to impeach the president, and judges. The Senate holds the hearings.

Score again for the Legislative Branch.

After all of that, it becomes clear that the real power lies in the Congress.

The Constitution is written in a manner consistent with the tendencies of the Founding Fathers to place things in order of importance, or in order of strength.

Article I establishes the Legislative Branch, Article II establishes the Executive Branch, and Article III establishes the Judicial Branch. So, the strongest of the three branches is the Legislative Branch, followed by the Executive Branch, and the weakest was supposed to be the Judicial Branch. In fact, reading Madison's Notes on the Constitutional Convention, you learn that the fear of a judicial oligarchy was so great among the Founding Fathers, that they actually considered not even having a Judicial Branch. The fears were that the judges would become what they were in Britain - a powerful group of men whose nearly unlimited power led to a situation the Founders called, "the rule of man."

For the Founding Fathers, this nation needed to follow the "rule of law," and the law of the land is the Constitution - which is heavily influenced by Natural Law, or God's Law, as per John Locke.

In the end, what we realize is that we don't have three co-equal branches of government, or at least we are not supposed to. The Original Intent of the Founding Fathers was for the real power to belong to We The People (House of Representatives) and the States (Senate). The People (House) checked the States (Senate), and together they checked the Executive and the Judiciary.

The real power lies in Congress, the representatives of the people.

-- Political Pistachio Conservative News and Commentary