A Separation of Powers

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.

-- Political Pistachio Conservative News and Commentary