Separation of Powers Theory

Separation of Powers: The Theory Elaborated and Implemented

The Constitution grants three broad powers&emdash;legislative, executive and judicial&emdash;but it does not contain an express requirement that the boundaries between these powers be preserved; nor does it expressly mandate a requirement for a system of checks and balances. Yet, the three powers are expressly granted to three separate branches, and the Constitution provides throughout the means by which each of the branches can resist the blandishments and incursions of the others. The Framers drew up our basic charter of government against a background rich in the theorizing of scholars and statesmen. The goal of these thinkers, and of the Founders, was to establish a governmental system which confers sufficient power to govern while withholding the ability to abridge liberties.1

More about Separation of Powers Theory

When the colonies separated from Great Britain following the Revolution, the framers of their constitutions were imbued with the profound tradition of separation of powers, and they freely and expressly embodied the principle in their charters.2 Because of the colonial experience with royal governors and judges representing the interests of the British Crown, however, the theory of checks and balances on legislatures was less favored. As a consequence, violation of the separation-of-powers doctrine by the legislatures of the states were commonplace prior to the convening of the Constitutional Convention.3 Ultimately, it was both theory and experience which guided the Framers in the summer of 1 78 7.4

Separation of Powers Theory: Developments

The implementation of the doctrine of separation of powers in the Constitution was premised on several generally held principles: the separation of government into three branches; the concept that each branch performs unique and identifiable functions that are appropriate to each; and the limitation of the personnel of each branch to that branch, so that no one person or group should be able to serve in more than one branch simultaneously. Although the Constitution to a great extent effectuated these principles, contemporaneous critics objected to what they regarded as the curious intermixture of functions, including, for example, the veto power of the President over legislation and the role of the Senate in both the appointment of executive officers and judges and in the treatymaking process. In a powerful series of essays, James Madison addressed objections to these checks and balances.5

Other Aspects

To disprove these critics, Madison relied on the writings of “the celebrated” Montesquieu, the “oracle who is always consulted” in these matters. Although “this essential precaution in favor of liberty,” that is, the separation of the three great functions of government, had been achieved by the drafting of the Constitution, Madison argued that the doctrine did not demand rigid separation. Montesquieu and other theorists “did not mean that these departments ought to have no partial agency in, or control over, the acts of each other,” but rather liberty was most endangered “where the whole power of one department is exercised by the same hands which possess the whole power of another department.” 6 In practice, the doctrine did not demand absolute separation, and neither closely drawn demarcations of institutional boundaries nor appeals to the electorate were appropriate to achieve its proper functioning.7 Instead, security against concentration of powers “consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” Thus, “[a]mbition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” 8

Other Issues

Institutional devices to achieve these principles pervade the Constitution. Bicameralism reduces legislative predominance, while the presidential veto gives to the President a means of defending his priorities and preventing congressional overreaching. The Senate's role in appointments and treaties checks the President. The courts are assured independence through good-behavior tenure and security of compensation, and the judges through judicial review will check the other two branches. The impeachment power gives to Congress the authority to root out corruption and abuse of power in the other two branches. And so on.

Resources

References

This text about Separation of Powers Theory is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 1] Among the best historical treatments are M. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (1967), and W. GWYN, THE MEANING OF THE SEPARATION OF POWERS (1965).

[Footnote 2] $$2 Thus the Constitution of Virginia of 1776 provided: “The legislative, executive, and judiciary department shall be separate and distinct, so that neither exercise the powers properly belonging to the other; nor shall any person exercise the powers of more than one of them, at the same time[.]” Reprinted in 10 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 52 (W. S. Windler ed., 1979). See also 5 id. at 96. Art. XXX of Part First, Massachusetts Constitution of 1780 provided that: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.” 3 “In republican government the legislative authority, necessarily, predominates.” THE FEDERALIST, No. 51, 350 (Madison) (J. Cooke ed. 1961). See also id. at No. 48, 332-334. This theme continues today to influence the Court's evaluation of congressional initiatives. E.g., Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 273-74, 277 (1991). But compare id. at 286 n.

[Footnote 3] $$3 (Justice White dissenting).

[Footnote 4] The intellectual history through the state period and the Convention proceedings is detailed in G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969) (see index entries under “separation of powers”).

[Footnote 5] $$5 THE FEDERALIST Nos. 47-51, 323-353 (Madison) (J. Cooke ed. 1961).

[Footnote 6] $$6 Id. at No. 47, 325-326 (emphasis in original).

[Footnote 7] $$7 Id. at Nos. 47-49, 325-343. 8 Id. at No. 51, 349.

[Footnote 8] Id. at No. 51, 349.

Tables of Contents

• Separation of Powers Theory and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Separation of Powers Theory and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)