Separation of Powers

One of the pillars upholding the foundation of American democracy, separation of powers describes the division of power within the federalist system of government adopted by the United States in 1787. Split into executive, legislative, and judicial branches, American government is based on a system of checks and balances to prevent the concentration and abuse of power by any one branch. During the Enlightenment in the 18th century, a time when intellectuals in Europe began to question the monarchical form of government where kings and queens reigned supreme, new ideas about personal freedom began to develop. In the 1730s, the French philosopher Charles de Montesquieu theorized separation of powers as one of the most logical methods to counteract the power of one ruler controlling all aspects of government. Montesquieu argued that the best way to perpetuate individual freedom was through the creation of a system of checks and balances within government. Through these mechanisms, the several branches of government would each serve as a watchdog on the other, preventing any one branch from assuming too much power over the people. Montesquieu's ideas became popular throughout Europe, particularly in Great Britain's North American colonies. His famous work The Spirit of Laws (1748) served as the blueprint for the three-part system of executive, legislative, and judicial powers adopted by America's Founding Fathers in 1787. When the Constitutional Convention convened in Philadelphia in the summer of 1787 to revise the Articles of Confederation, which had been adopted a few years earlier as the first American plan of government, the framers desperately wanted to avoid creating a government that concentrated power in the hands of one man or body of men. The 55 delegates realized that the new nation needed a strong central government that could raise an army, collect revenue, and administer land policy, but they did not want to take away too much power from the states to control their internal affairs. Some individuals like James Madison, a slaveholder and political theorist from Virginia, wanted to keep most of the power within the national government. Many of the supporters of this plan hailed from the larger states that could withstand an enlargement of power at the federal level. They became known as nationalists. Delegates from such smaller states as Rhode Island and Connecticut, however, feared that a large national government would erode state sovereignty, which they argued was the hallmark of American democracy. Led by Madison, the nationalists argued that most of the nation's power should be concentrated in a federal system based on a dispersal of power within three branches of government. The executive branch would execute the laws; the legislative branch would make the laws; and the judicial branch would interpret them. Most importantly, all three branches would separate the governing powers that previously had been concentrated in one individual in a monarchical system. To keep each branch equal in power, all three would possess the ability to check the operations of the other. Although such a system engendered long, heated debates, the convention eventually adopted Madison's outline as the best course of action for the new government. Months later, as the ratification of the Constitution was being debated by state conventions all over the country, Madison summarized his theory of separation of powers in The Federalist No. 51, writing "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself." The first three articles of the Constitution spell out the powers, responsibilities, and selection process for each separate branch. They stipulate that one person cannot sit in more than one branch at a time for fear of a concentration of power. The legislative branch was given the power to make federal laws, institute and collect taxes, duties, imposts, and excises to pay debts and provide for the common

defense, coin and borrow money, regulate commerce with foreign nations and among the states, create post offices, promote the progress of science, and create lower federal courts. The judicial branch was given few tasks, but those it was mandated to carry out were of immense importance: to interpret laws or actions of the executive and to invalidate as unconstitutional acts of either Congress or the executive. The executive branch was given the power to implement federal laws, call Congress into special session, submit legislation to Congress, make treaties with foreign nations, and act as commander-in-chief of the armed forces. Dividing governing powers was not enough, however. A system of checks and balances was also needed. As a check on the power of the legislative and executive branches, the executive branch can veto congressional legislation, appoint federal judges, and pardon people. The legislative branch can override the veto of the president, refuse to confirm presidential appointments, impeach the executive, and refuse to ratify presidential treaties. To limit the powers of the judiciary, the legislative branch can eliminate or refuse to create lower federal courts, can refuse to implement judicial decisions, can alter the jurisdiction of federal courts, and can impeach and confirm judges. Over time, branches have assumed powers not specifically given to them in the Constitution. For example, the Supreme Court established the power of judicial review, the right of the courts to review laws passed by the president, Congress, and the courts, in the landmark case of Marbury v. Madison (1803). Illustrated by this complex system of power configuration, the Constitution created a loose-knit structure that requires the three branches to share rather than separate power. Justice Robert Jackson once remarked of this development, "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." The judiciary has the power to make laws as well as interpret them; the legislature can interpret laws as well as create them; and presidents have often assumed the powers to do all of these. A closer look at the executive branch reveals the complexity of the dispersal of power between the three branches and the often blurring of these roles due to the realities of managing a large federal government during times of crisis. After many debates, the delegates to the convention decided on a oneperson executive branch, but the term of office and number of terms allowed was a hotly contested issue. Some delegates wanted a three-year term with reelections possible. Others desired a single term of seven years. The convention at first adopted the latter proposal but later redefined it to be a four-year term with reelection possible. No decision was made on the number of terms allowed a president. .. To avoid a government dominated by dictators, the Founding Fathers fashioned an effective system of separation of powers and checks and balances to maintain equilibrium in federal government. The rights of American people to various freedoms reflected in the Constitution and Bill of Rights rests on the ability of each branch to remain separate while monitoring the actions of the other branches. Further Reading Bailyn, Bernard, ed., The Debate on the Constitution, 1993; Hamilton, Alexander, James Madison, and John Jay, The Federalist Papers, 1961; McDonald, Forrest, The American Presidency: An Intellectual History, 1994; Neudstadt, Richard E., Presidential Power and the Modern Presidents, 1990.

American History, s.v. "separation of powers," accessed November 17, 2013. http://americanhistory.abcclio.com/.