By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host
Excerpt from my upcoming book, "A Promise of American Liberty":
"The people can never willfully
betray their own interests: But they may possibly be betrayed by the
representatives of the people; and the danger will be evidently greater where
the whole legislative trust is lodged in the hands of one body of men, than
where the concurrence of separate and dissimilar bodies is required in every
public act." --James Madison, Federalist No. 63, 1788
"The principle of the Constitution
is that of a separation of legislative, Executive and Judiciary functions,
except in cases specified. If this principle be not expressed in direct terms,
it is clearly the spirit of the Constitution, and it ought to be so commented
and acted on by every friend of free government." --Thomas Jefferson
The concept that only Congress has legislative
powers, only the executive branch has executive powers, and the judicial branch
only has judicial powers, as described in the first sentence of each of the
first three articles of the Constitution, is called Separation of Powers. The
purpose of this philosophy is to disallow the different branches from abusing
the powers not granted to that branch, as well as to protect against collusion.
A Separation of Powers also exists between
the States, and the federal government.
Most authorities granted to the federal government are powers the States
did not reserve to themselves. Most
authorities retained by the States are not authorized to be administered by the
federal government. There are a few
authorities that are concurrent,
meaning that both the federal government, and the States, have some authority
over the issue, but overall, there is a separation of powers between the three
branches of government, and between the federal government and the States. One issue that is concurrent is immigration,
which will be addressed later in this book.
Sole authority over a particular power
is called Exclusive Powers.
The separation of powers between the
three branches of government, and between the federal government and the
States, serve as an integral part of the protections constitutionally in place
to guard against tyranny, as well as a protection of State Sovereignty and
constitutional federal authorities without interference from the States.
The dynamics of the federal government
were set up to prevent any part of government from having access to too much
power. Too much power in any one part of
the system could be dangerous, and this includes too much power in the hands of
the people.
The general population, just like the
government, cannot be fully trusted with absolute power. To prevent the danger of too much power
residing in any part of government, power needed to be divided as much as
possible so as to keep it under control.
Too much power in the hands of anybody, or any body of government, has
the potential of being a dangerous proposition.
The United States is not a
democracy. All of the voting power was
not given directly to the people. The
voting power was divided to ensure the Republic was protected from the mob-rule
mentality of democracy.
Article I, Section 1 of the United States
Constitution 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.”
Article II, Section 1 of the United
States Constitution reads, “The executive
Power shall be vested in a President of the United States of America.”
Article III, Section 1 of the United
States Constitution reads, “The judicial
Power of the United States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to time ordain and
establish.”
The provision of “Separation of Powers”
is not explicitly expressed by the United States Constitution, but the concept
is presented and defined by the language used.
James Madison, while he and George Mason were constructing the original
draft of the Bill of Rights, included a proposed amendment that would make the
separation of powers explicit, but the proposal was rejected. His colleagues in Congress expressed that the
principle of the separation of powers was implicit in the structure of
government under the language presented by the United States Constitution. Madison's proposed amendment, they concluded,
would be a redundancy, and was unnecessary.
The concept of the Separation of Powers
was an important part of the principles presented by Montesquieu’s concept of a
mixed constitution. Montesquieu was a
French political philosopher during the middle 1700s. Thomas Jefferson, as well as many of the
other influential voices during the founding of this nation, were acquainted
with Montesquieu’s work, and were favorable of his ideas.
The idea of a mixed constitution was
originally a concept introduced by a Greek historian named Polybius, who was
deported to Rome after Greece fell to the Roman Empire. He admired the representative government of
the Roman Republic. The era of Rome as a
republic, however, was coming to an end, and statists who lusted for power were
engaged in policies that would ultimately destroy the system of freedom, and
turn Rome into a tyrannical empire.
Polybius worked to restore honest government through the principles of
the Roman Tablets. Polybius recommended
a mixed constitution that blended the best of the three types of government in
existence: a monarchy, aristocracy, and democracy. By themselves these types of government were
unable to provide for equality, prosperity, justice, or domestic tranquility
for the whole society. A mixed system,
using the best traits of the three types of government, Polybius reasoned,
would ensure freedom, and provide protection for individual rights. Though his philosophy began to develop in the
Roman system, the dream of a three-department government ended with his
death. After the demise of Polybius, the
Romans began to abandon their principles of a republic.
During the middle 1700s, France’s Baron
Charles de Montesquieu worked to resurrect the concept of a mixed constitution,
and resubmit it for the consideration of modern man with one addition. Montesquieu added the idea of a separation of
powers.
"There can be no liberty where the legislative
and executive powers are united in the same person."
Montesquieu’s writings were never
popular in his homeland of France because his essays and book were so full of
praise for the English system of government.
In England, the Saxon system of government based its foundation on an
individual-centric society, where no person, including the king, was above the
law. The English system promoted
freedom, personal rights, and a free market, rather than an authoritarian
monarchy guided by an authoritarian religious system.
Though Montesquieu’s book detailing his
thoughts regarding a mixed constitution, and the separation of powers, never
became popular in France, his book was greatly admired by the men in the
English Colonies who had declared independence, and were forging a new country. The political concepts offered by Montesquieu
illuminated the minds of the Founders, encouraging them to create a system
based on “separated” powers, guided by the consent of the governed, while
containing a series of checks and balances.
Polybius recognized the three
departments of government as being the executive, the senate, and the people’s
assembly. Montesquieu saw his version of
the separation of powers developing in England.
Montesquieu’s system of government developed along the lines of an
executive, a legislature (with an upper and lower house), and an independent
judiciary.
Montesquieu wrote, “When the legislative
and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty; because apprehensions may arise, lest the
same monarch OR senate [legislature] should enact tyrannical laws, to execute
them in a tyrannical manner. . . Again, there is no liberty, if the judiciary
power be not separated from the legislative and executive. Were it joined with the legislative, the life
and liberty of the subjects would be exposed to arbitrary control, for the
judge would then be the legislator. Were
it joined to the executive power, the judge might behave with violence and
oppression.”
Montesquieu called for a single
executive, as opposed to the two or more consuls in Rome set up to preside over
the people, or the thirty executives in Ancient Greece. A single executive would ensure
responsibility would be concentrated in a single person who can make decisions
quickly and decisively, and cannot escape either credit nor blame for the
consequences.
The Framers of the Constitution feared giving any
part of government too much power, and even placed in the Constitution certain
checks and balances to reinforce the idea of “separation of powers.” The prohibition of the use of “bills of attainder” in Article I,
Section 9, for example, forbids the legislature from performing a judicial
function.
The primary supporting evidence
regarding the concept of Separation of Powers is found in the first sentence of
each of the first three articles of the Constitution, as provided near the
beginning of this chapter. The words
were chosen carefully, with the original intent of ensuring that the powers
given to each of the three branches of government were retained only by those
branches.
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