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Constitutional Topic Separation Of Powers The U S Constitution

Leo Migdal
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constitutional topic separation of powers the u s constitution

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns the Separation of Powers. The concept of Separation of Powers is embodied in the Constitution in the 1st Article, in the 2nd Article, and in the 3rd Article. Another Topics Page, on The Government provides details about the make-up of the various branches and may also be of use. Primary sources for this topic page are Comparative Politics by Gregory Mahler (Schenkman Publishing, 1983) and Comparative Politics by Gregory Mahler (Prentice Hall, 2000). Individual pages from Wikipedia and Canada in the Making were also helpful in keeping this page up to date.

The United States Constitution is deliberately inefficient. The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances. Three branches are created in the Constitution. The Legislative, composed of the House and Senate, is set up in Article 1.

The Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2. The Judicial, composed of the federal courts and the Supreme Court, is set up in Article 3. Dr. Yuval Levin of the American Enterprise Institute argues that the defense of liberty requires multiple answers to a fundamental political question: who rules? In Federalist No. 47, in the course of justifying the basic structure of the newly proposed Constitution to his readers, James Madison made an extraordinary pronouncement:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of... The freedom of the American people, he suggested, depends less on how their leaders are chosen than on whether the different powers of government are divided among different people. Political legitimacy may well require representation, but the defense of liberty requires above all that there be more than one answer to the fundamental political question: who rules? The means by which the Constitution addresses this need has come to be known as the separation of powers. The legislative, executive, and judiciary powers compose separate branches of the national government, described in separate A rticles of the Constitution. But this is no simple separation.

In fact, the very complexity of the ever-evolving relations among the three branches of the national government has been an essential feature of both the structure and logic of the American system, and remains... Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three... This philosophy heavily influenced the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct to prevent abuse of power. The American form of separation of powers is associated with a system of checks and balances. During the Age of Enlightenment, philosophers such as Montesquieu advocated the principle in their writings, whereas others, such as Thomas Hobbes, strongly opposed it. Montesquieu was one of the foremost supporters of separating the legislature, the executive, and the judiciary.

His writings considerably influenced the Founding Fathers of the United States, such as Alexander Hamilton and James Madison, who participated in the Constitutional Convention of 1787, which drafted the Constitution. Some U.S. states did not observe a strict separation of powers in the 18th century. In New Jersey, the governor also functioned as a member of the state's highest court and as the presiding officer of one house of the New Jersey Legislature. The president of Delaware was a member of the Court of Appeals; the presiding officers of the two houses of the state legislature also served in the executive department as vice presidents. In both Delaware and Pennsylvania, members of the executive council served at the same time as judges.

On the other hand, many southern states explicitly required the separation of powers. Maryland, Virginia, North Carolina and Georgia all kept the branches of government "separate and distinct." Congress has the sole power to legislate for the United States. Under the nondelegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a "line-item veto" to the President, by powers vested in the government by the Constitution.

Where Congress does not make great and sweeping delegations of its authority, the Supreme Court has been less stringent. One of the earliest cases involving the exact limits of non-delegation was Wayman v. Southard, 23 U.S. (10 Wet.) 1, 42 (1825). Congress had delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had thereby unconstitutionally clothed the judiciary with legislative powers. While Chief Justice John Marshall conceded that the determination of rules of procedure was a legislative function, he distinguished between "important" subjects and mere details.

Marshall wrote that "a general provision may be made, and power is given to those who are to act under such general provisions, to fill up the details." The separation of powers in the U.S. government is a foundational principle embedded in the Constitution, designed to prevent any one branch from dominating the others and to safeguard individual liberties. This system divides government responsibilities among three branches: the legislative (Congress), the executive (headed by the president), and the judicial (led by the Supreme Court). Each branch has distinct functions and powers, enabling checks and balances that allow them to restrain one another's authority. For instance, Congress makes laws but requires presidential approval, while the courts have the authority to review the constitutionality of these laws.

Historically, the framers of the Constitution drew inspiration from earlier political theories, particularly those of Montesquieu, to create this structure. Over time, various Supreme Court rulings have reaffirmed and clarified the boundaries separating these branches, ensuring that power does not aggregate in any single entity. The design fosters a political environment that often maintains a narrow spectrum of ideological discourse, reflecting public opinion. However, concerns have arisen regarding the potential for judicial activism and the impact of partisanship on the balance of power. Ultimately, the separation of powers remains a crucial aspect of American governance, evolving with the political landscape while striving to uphold democratic principles. Under the US Constitution, the term "separation of powers" refers to the system by which the legislative, executive, and judicial branches of the government perform different functions and can restrain the other branches.

Also called “shared powers,” it is the core principle of the checks and balances system developed by the founders of the US government with the goal of preventing autocratic rule. Because each branch of government can restrain the others, US politics tend to operate within a relatively narrow political spectrum near the center of public opinion. The framers of the US Constitution believed that a system of separation of powers was necessary to protect liberty. Although the idea can be traced to older schemes of mixed government, the delegates to the Constitutional Convention of 1787 were most familiar with Charles de Montesquieu’s Spirit of the Laws (1748). Although Montesquieu’s interpretation of English government, on which his book was based, was later shown to be incomplete, the principle he espoused was adopted at the Constitutional Convention. Separation of powers is woven into the US Constitution in subtle and brilliant ways.

Over the decades, many US Supreme Court decisions have operated to preserve and strengthen this system of separation of powers. As the head of the judicial branch of government, the Supreme Court is itself one of the major repositories of shared power. The other two branches are the executive branch, headed by the president, and the legislative branch, headed by Congress. Separation of Powers is a doctrine of Constitutional law under which the three branches of U.S. government (executive, legislative, and judicial) and their duties, are kept legally separate. This is also known as the system of checks and balances, because each branch is given certain powers so as to inspect and block other branches who may overstep their duties.

The separation of powers doctrine divides government responsibilities into the three branches in order to prevent any one branch from taking over another’s duties. The goal of the framers’ in their creation of separation of powers was to prevent a concentration of power by one branch and thus, unequal control over the government. Each branch has separate powers, and generally each branch is not allowed to exercise the powers of the other branches. [Last reviewed in September of 2024 by the Wex Definitions Team] Grab a cup of coffee or tea because today, we are reviewing the Founding Principle of constitutional precautions, or the “fences of protection” around our liberty. I addressed this issue in a previous post from September, 2023.

These are timeless principles and deserve a review. Here they are: Separation of Powers, Checks and Balances, and Federalism Can you define these terms? They are important, because without them, we can slowly lose our Constitutional Republic and the freedoms we enjoy. Let’s look further into these “fences.”

The Separation of Powers prevents any one Branch of government (Legislative, Executive, and Judicial) from gaining, assuming, or taking too much power. Each Branch has defined functions and is constitutionally given the power to carry out those functions. (See Articles I, Ii, III) Checks and balances are different from the Separation of Powers in that each Branch of government has the power to limit the other two Branches. Again, this founding principle keeps any one Branch from becoming too powerful.

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